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PC10-063Resolution No. 10-063 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MENIFEE, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF AN ORDINANCE APPROVING THE DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF MENIFEE AND STARK MENIFEE LAND, LLC FOR THE TOWN CENTER SPECIFIC PLAN PROJECT. WHEREAS, Stark Menifee Land, LLC submitted an application for a Development Agreement related to the Town Center Specific Plan (Specific Plan) as set forth on Exhibit "1" of this Resolution, and WHEREAS, following input from and direction from special counsel, City staff developed and negotiated a draft Development Agreement by and between City of Menifee and Stark Menifee Land, LLC for the Specific Plan (Development Agreement) for consideration. WHEREAS, the Planning Commission has reviewed this matter and prepared a report containing a detailed description and analysis of the proposed Development Agreement, (a copy of the report is on file with the City Clerk and incorporated herein by this reference as if set forth in full); and WHEREAS, the Development Agreement has been prepared, processed, reviewed, heard, and approved in accordance with applicable law, including but not limited to Section 65864 et seq. of the Government Code. WHEREAS, an Environmental Impact Report (SCH # 2009091022) relating to the Menifee Town Center Specific Plan was prepared and was found to be complete and adequate in scope and was considered by the Planning Department in its consideration of this matter by Resolution No. 10 - 058; and WHEREAS, the Planning Commission, by Resolution No. 10-059 has recommended a General Plan Amendment to the Land Use Element to provide consistency with the Specific Plan and proposed Development Agreement and the Development Agreement is consistent with the General Plan, as amended; and WHEREAS, the Planning Commission by Resolution No. 10-062 has recommended approval of the Specific Plan and the Development Agreement is consistent with the Specific Plan; and WHEREAS, the Development Agreement would promote the public convenience, general welfare, and good land use practices, and is in the best interest of the community; and WHEREAS, the Development Agreement would not adversely affect the orderly development of property and surrounding area, or the preservation of property values; and WHEREAS, the Development Agreement would promote and encourage the development of the proposed project by providing a greater degree of requisite certainty; and WHEREAS, the Development Agreement strengthens the public planning process, encourages private participation in comprehensive planning, and reduces the economic costs of development uncertainty; and WHEREAS, the Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is or will be located, including any policy plan overlay applicable to the property; and WHEREAS, approval of the Development Agreement could provide a substantial benefit to the community; and WHEREAS, the Development Agreement would not be detrimental to the public health, safety, or welfare of the community; and WHEREAS, the City Clerk has caused notice to be duly given of a public hearing in this matter in accordance with law, as evidenced by the affidavit of publication and the affidavit of mailing on file with the City Clerk; and WHEREAS, a copy of the report and said EIR have been on file in the Office of the City Clerk and available for examination during regular business hours by any interested person, at all times since the date of giving notice in this matter; and WHEREAS, on December 14, 2010, the Planning Commission held a duly noticed public hearing at which the Planning Commission considered the proposed Development Agreement; and those persons desiring to be heard on said matters were heard and evidence in said matters received. NOW, THEREFORE, the Planning Commission hereby recommends to the City Council the following: 1. The Findings set out above are true and correct. 2. The Development Agreement set forth on Exhibit "1" is found to be consistent with the goals and policies of the General Plan, including the General Plan Amendment recommended for approval by the Planning Commission by Resolution No. 10-059. 3. The applicable provisions of the California Environmental Quality Act and the State CEQA Guidelines have been duly observed in conjunction with said hearing in the consideration of this matter and all of the previous proceedings relating thereto. 4. The Planning Commission recommends to the City Council approval of the Development Agreement set forth in Exhibit "1" of this Resolution, subject to the Conditions of Approval set forth in Exhibit "2" of this Resolution, despite the existence of certain significant environmental effects identified in said EIR, and hereby makes and adopts the findings with respect to each thereof set forth in Resolution No. 10-058 and made a part hereby by reference, pursuant to section 15091 of the State CEQA Guidelines (Title 14, California Code of Regulations) and section 21081 of the Public Resources Code (CEQA) and declares that it considered the evidence described in connection with each such finding. Pursuant to Public Resources Code section 21081(b) and section 15093 of the State CEQA Guidelines, the Planning Commission hereby recommends adoption of the "Statement of Overriding Considerations" set forth in Exhibit "B" to Resolution No. 10-058 and made a part hereby by reference and finds that the impacts of the project which remain significant and unavoidable are outweighed by the project's overriding benefits. 5. The Planning Commission recommends that the Development Agreement be applicable to the area of the City of Menifee as described in the Development Agreement. 6. Upon City Council approval of the Development Agreement, the City Manager, or his or her delegee, be directed and authorized to do all of the following: a. to cause a Notice of Determination to be filed as provided by CEQA and the CEQA Guidelines. b. prepare a final version of the Development Agreement for execution and recording that incorporates any recommended changes, as well as to prepare final exhibits, legal descriptions, and similar matters necessary to fully reflect the action of the Planning Commission in recommending adoption of the Development Agreement; c. make all necessary and appropriate clerical, typographical, and formatting corrections to the adopted Development Agreement prior to execution and recording; d. to implement the Development Agreement, in accordance with its terms including, but not limited to (1) the Mitigation Measures, which are referenced and described in Resolution No. 10-058 (Resolution Certifying the Final Environmental Impact Report, Making Findings Of Fact, Adopting a Statement of Overriding Considerations and Adopting the Mitigation Monitoring and Reporting Program for the Specific Plan, with Exhibits) and further described in the EIR for the Specific Plan; and (2) the Mitigation Monitoring and Reporting Program. PASSED, APPROVED AND ADOPTED this 14t;day of December, 2010. Attest: Kathy Bennett, City Clerk & Planning Commission Secretary Matthew Liesem Approved as to form: FA Thomas P. ClarkQ—r Special Counsel , Chair Exhibit "1 ": Development Agreement by and between Stark Menifee Land, LLC and the City of Menifee related to the Menifee Town Center Specific Plan Project Wallace W. Edgerton Mayor Fred Twyman Vice Mayor John V. Denver Councilmember Darcy Kuenzi Councilmember Thomas Fuhrman Councilmember 29714 Haun Road Menifee, CA 92586 Phone 951.672.6777 Fax 951.679.3843 www.cityoftenifee.us STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF MENIFEE ) I, Kathy Bennett, City Clerk of the City of Menifee, do hereby certify that the foregoing Resolution No. 10-063 was duly adopted by the Planning Commission of the City of Menifee at a meeting thereof held on the 14th day of December, 2010 by the following vote: Ayes: Miller, Zimmerman, Thomas, Liesemeyer Noes: None Absent: None Abstain: None &-'N-- Kathy Bennett, City Clerk THIS INSTRUMENT FILED FOR RECORD BY FIRST AMERICAN TITLE INSURANCE COMPANY AS AN ACCOMMODATION ONLY. IT HAS NOT BEEN EXAMINED AS TO ITS EXECUTION OR AS TO ITS EFFECT UPON TITLE. RECORDING REQUESTED BY AND WHEN RECORDED MAIL, TO: CITY OP MENIFEE 29714 Haun Road Menifee, CA 925$6 Attn: Clt1 Attorney C� DOC # 2011-0272260 06/21/2021 09:25A Fee:NC Page 1 of 57 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder I IIIIII IIIIIII 111111111111111111111111111111111111111111 Rccurded tin for bcnefit .r(the t-ti% of Menacc 5 R U PAGE SIZE DA MISC LONG RFD COPY and exempt tFom ieeotdinc tt:o nursunnt to (.iuvcrnmert 5comn 27393 I M A L 465 426 PCOR NCOR SMF NCHG ,1EXAM UNI O� T: CTY DEVELOPMENT AGREEMENT bN and between CITY OF MEN I FEE and .STARK ME• NIFF.E LAND, LLC REGARDING T"E TOWN CENTER SPECIFIC PLAN PROJECT Effective Date: j b M 13 , 2011 1)OCSOC'r 1455134 v4r21H1299-t1(ID 1 TABLE OF CONTENTS PAGE ARTICLE1. DEFINITIONS.................................................................................................................2 ARTICLE 2. EFFECTIVE DATE, TERM & REPRESENTATIONS AND WARRANTIES.............9 2.1 Effective Date................................................................................................................9 2.2 Term.............................................................................................................................. 9 2.3 Developer's Representations and Warranties..............................................................10 ARTICLE 3. DEVELOPMENT OF THE PROPERTY...................................................................... 11 3.1 Uses and Development Standards...............................................................................11 3.2 Density and Intensity of Development........................................................................ I I 3.3 Conflicts ......................................................................................................................11 3.4 Tentative Maps............................................................................................................1 1 3.5 Impact Fees, Exactions, Processing Fees and "taxes...................................................11 3.6 Federal/State Compliance Fees...................................................................................12 3.7 Non -Local Agency Compliance Fees.........................................................................12 3.8 Processing Fees...........................................................................................................12 3.9 Impact Fees and Exactions..........................................................................................12 3.10 3.11 Consulting Fees...........................................................................................................12 Timing of Commencement of Construction and Completion.....................................14 3.12 Copies of Applicable City Regulations....................................................................... 14 3.13 New City Laws; Reservations of Authority................................................................14 3.14 Developer's Contest of Applicability of New City Laws............................................15 3.15 Moratorium Not Applicable ................................... 3.16 Initiatives and Referenda.............................................................................................16 3.17 Regulation by Other Public Agencies.........................................................................16 3.18 Insurance Requirements.............................................................................................. 17 3.19 Civic Center Site.........................................................................................................17 3.19.1 Conveyance of Civic Center Site................................................................................17 3.20 Courthouse Site...........................................................................................................18 3.21 Public Park Obligation................................................................................................21 ARTICLE4. UTILITIES.....................................................................................................................23 4.1 Project Improvements..........................................................................................I....1.23 4.2 Acceptance of Public Improvements and Certificate of Satisfaction ..........................24 4.3 Infrastructure Easements and Rights of Way..............................................................25 4.4 I-215/Newport Road Interchange Project...................................................................25 ARTICLE 5. AMENDMENTS & SUBSEQUENT PROJECT APPROVALS..................................25 5.1 Amendment.................................................................................................................25 5.2 Modifications Delegated to the City Manager............................................................26 5.3 City Processing of Subsequent Project Approvals......................................................26 5.4 CEQA..........................................................................................................................27 ARTICLE 6. DISPUTES, DEFAULT, REMEDIES...........................................................................27 6.1 Default.........................................................................................................................27 6.2 Annual Review............................................................................................................28 6.3 Legal Actions..............................................................................................................29 6.4 Indemnification...........................................................................................................30 i DOCSOC/ 1455134v9/200299-0001 TABLE OF CONTENTS (Continued) PAGE 6.5 Dispute Resolution......................................................................................................30 6.6 Termination of Agreement..........................................................................................31 ARTICLE7. ASSIGNMENTS............................................................................................................31 7.1 Subsequent Development Agreements.......................................................................31 7.2 Complete Assignment.................................................................................................31 7.3 Partial Assignment to Purchasers................................................................................31 7.4 Assignment to Master Property Owners' Association.................................................31 7.5 Assignment to Financial Institutions...........................................................................32 7.6 Assumption of Assigned Obligations; Release of Assignor.......................................32 7.7 Successive Assignment...............................................................................................32 7.8 Excluded Transfers......................................................................................................32 ARTICLE 8. GENERAL PROVISIONS.............................................................................................33 8.1 Compliance With Laws...............................................................................................33 8.2 Mortgagee Protection..................................................................................................33 8.3 Amendments to Agreement.........................................................................................34 8.4 Covenants Binding on Successors and Assigns and Run with Land ..........................34 8.5 Notice..........................................................................................................................34 8.6 Counterparts................................................................................................................36 8.7 Waivers.......................................................................................................................36 8.8 Construction of Agreement.........................................................................................36 8.9 Severability.................................................................................................................36 8.10 Time............................................................................................................................36 8.11 Extension of Time Limits............................................................................................36 8.12 Signatures .................... 8.13 Entire Agreement........................................................................................................ 36 8.14 Estoppel Certificate.....................................................................................................37 8.15 City Approvals and Actions........................................................................................37 8.16 Negation of Partnership...............................................................................................37 8.17 Exhibits.......................................................................................................................37 DOCSOC/ 1455134v9/200299-0001 DEVELOPMENT AGREEMENT Town Center Specific Plan Project This DEVELOPMENT AGREEMENT FOR TOWN CENTER SPECIFIC PLAN PROJECT (the "Agreement") is entered into this 19th day of April, 2011, by and between the CITY OF MENIFEE, a municipal corporation of the State of California ("City") and STARK MENIFEE LAND, LLC, a Delaware limited liability company ("Developer"). City and Developer are collectively referred to herein as the "Parties" and individually as a "Party (as defined lierein)." RECITALS A. In order to, among other things, provide assurances to the applicant for a development project that, upon approval of the project, the applicant may proceed with the Development Project in accordance with the existing policies, rules and regulations, subject to conditions of approval, strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted Government Code Sections 65864, et seq. ("Development Agreement Statute"). The Development Agreement Statute authorizes City to enter into an agreement with any person having a legal or equitable interest in real property and to provide for the development of such property. In accordance with the Development Agreement Statute, the City established procedures and requirements for processing and approval of development agreements pursuant to Municipal Code Section 9.75 ("Development Agreement Rules"). The Development Agreement Statute and Development Agreement Rules are collectively referred to herein as the "Development Agreement Law." B. Developer is the owner in fee of that certain real property consisting of approximately one hundred and seventy four (174) acres of land area located in the City of Menifee, County of Riverside, State of California, more particularly described in the legal description attached hereto as Exhibit A ("Property"). C. Prior to the Effective Date, City adopted, on an interim basis, the County of Riverside General Plan, as amended by General Plan Amendment 2010-181 adopted by Resolution 2011-196 on January 18, 2011 (collectively, "General Plan") and the Town Center Specific Plan Amendment adopted by Ordinance No. 2011-89 on April 19, 2011 ("Specific Plan") for the Property. Development pursuant to the Specific Plan is hereinafter referred to as the "Project." The City has given the required notice of its intention to adopt this Agreement and has conducted public hearings thereon pursuant to Government Code section 65867 and the Development Agreement Rules. As required by Government Code section 65867.5, City has found that the provisions of this Agreement and its purposes are consistent with the goals, policies, standards, and land use designations specified in the General Plan and the Specific Plan. D. Prior to its approval of this Agreement, the Specific Plan was the subject of an environmental impact report under the California Environmental Quality Act ("CEQA") (set forth in Public Resources Code, section 21000 et seq.) which was certified by the City's City Council ("City, Council"), as recommended for certification by the Planning Commission by action taken at its regular meeting of December 14, 2010. After duly noticed public hearing, the City Council certified the Final Environmental Impact Report for the Town Center Specific Plan (" EIR") by Resolution No. I I-195 adopted January 18, 2011. DOCSOC/ 1455134v9/200299-0001 E. On October 27, 2009, the Developer, Donahue Schriber Realty Group, the City and RCFCD entered the Cooperative Agreement which contemplates the potential future construction of recreational facilities in the Paloma Wash Flood Channel. The Paloma Wash Flood Channel is located directly adjacent to the Property on property currently owned by the Developer and is in the process of being conveyed to the RCFCD. F. This Agreement is intended to be, and shall be construed as, a development agreement within the meaning of the Development Agreement Law. For the reasons recited herein, Developer and the City have determined that the Project is a development for which a development agreement is appropriate. This Agreement will eliminate uncertainty in planning for and secure the orderly development of the Project, ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, assure attainment of the maximum effective utilization of resources within the City and provide other significant public benefits to City and the City's residents by otherwise achieving the goals and purposes of the Development Agreement Law. In exchange for these benefits to City, Developer desires to receive the assurance that it may proceed with the development of the Project in accordance with the terms and conditions of this Agreement. G. The Parties agree that this Agreement will promote and encourage the development of the Project by providing Developer and future owners and lenders with a greater degree of certainty as to Developer's ability to expeditiously and economically complete the Project, and that the consideration to be received by the City pursuant to this Agreement and the rights secured to Developer hereunder constitute sufficient consideration to support the covenants and agreements of the City and Developer. H. City acknowledges that the obligations of City set forth in this Agreement shall survive beyond the term or terms of the current members of the City Council and that this Agreement will serve to bind City and future City Councils. By approving this Agreement, the City Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than deferring its actions to some undetermined future date. The terms and conditions of this Agreement have undergone extensive review by the City staff and the City Council and have been found to be fair, just, and reasonable, and City has concluded that the Project will serve the best interests of its citizens and that the public health, safety, and welfare will be best served by entering into this Agreement. 1. On December 14, 2010, the City's Planning Commission (the "Planning Commission"), after duly noticed public hearing, recommended approval of this Development Agreement pursuant to Resolution No. 10-063_. On April 5, 2011, the City Council introduced its Ordinance No. 2011-90 approving this Development Agreement and authorizing its execution, and adopted that Ordinance No. 201 1-90 on April 19, 2011. That Ordinance ("Enacting Ordinance") became effective on May 19, 2011. The Enacting Ordinance incorporates this Agreement by reference. NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other valuable consideration, the Parties hereby agree as follows: ARTICLE 1. DEFINITIONS "Agreement" shall mean this Development Agreement, including all exhibits. 2 DOCSOC/ 1455134v9/200299-0001 "Annual Review" shall have the meaning given in Section 6.2.1. "Applicable City Regulations" shall have the meaning set forth in Exhibit B. "Applicable Law," where capitalized, shall mean the Applicable City Regulations, New City Laws, to the extent consistent with the limitations of Section 3.13 of this Agreement, and New Other Laws. If the term "applicable law" is not capitalized, it shall refer to not only Applicable Law, but also to all applicable state and federal law and or regulations. "Appraisal" shall have the meaning in Section 3.20.2. "Assignment" shall have the meaning given in Section 7.2. "Benefited Owner" has the meaning set forth in Section 4.1.4. "CEQA" shall mean the California Environmental Quality Act, California Public Resources Code section 21000, et seq., and the State CEQA Guidelines, (California Code of Regulations, Title 14, section 15000, et seq.), as each is amended from time to time. "Central Public Park Site" shall mean that Public Park of a minimum of five (5) acres and located approximately as set forth of Exhibit E and subject to Section 3.21, below. "City" shall mean the City of Menifee, a municipal corporation, organized and existing under the laws of the State of California. "City Council" shall have the meaning set forth in Recital D. "City Manager" shall mean the City's City Manager, or his or her designee. "City Parties" shall have the meaning given in Section 3.18. "Civic Facilities" shall mean public, civic and facilities uses, such as a City hall, performing arts theater, public library, public recreation center, public sports facilities or similar uses located on the Civic Center Site. "Civic Center Site" shall mean the approximately six (6) acre property in approximately the location set forth on Exhibit E and subject to the terms of section 3.19, below. "Claims" shall have the meaning given in Section 6.4. "Connection Fees" means those fees charged by City, or other non -City entities, to utility users as a cost for connecting to water, sewer and other applicable utilities. "Consultant" or "Consultants" shall have the meaning given in Section 3.10. "Consultant Contract" shall have the meaning given in Section 3.10. "Consultant Fees" shall have the meaning given in Section 3.10. DOCSOC/1455134v9/200299-0001 "Cooperative Agreement" shall mean that certain Cooperative Agreement by and between the Riverside Flood Control District, the City of Menifee, the Developer, and Donahue Schriber Realty Group, L.P. dated October 27, 2009. "County" shall mean the County of Riverside, a political subdivision of the State of California. "Courthouse" shall mean proposed "New Ilemet Courthouse" for the Court of California, County of Riverside. that is being considered by the Office of Court Construction and Management to be constructed on the Courthouse Site. "Courthouse Site" shall mean the approximately five and two tenths (5.2) acre property located in approximately the location set forth on Exhibit E and as set forth in Section 3.20, below. "Default" shall have the meaning given in Section 6.1.2. "Default Hearing" shall have the meaning given in Section 6.1.3. "Developer" shall mean Stark Menifee Land. LLC, a Delaware limited liability company, and any successor or assignee to the rights, powers, and responsibilities of hereunder, in accordance with Article 7 of this Agreement. "Developer Objection" shall have the meaning given in Section 3.10. "Development Agreement" shall mean this Agreement and all Exhibits attached hereto. "Development Agreement Law" shall have the meaning given in Recital A. "Development Agreement Rules" shall have the meaning given in Recital A. "Development Agreement Statute" shall have the meaning given in Recital A. "Development Project" shall mean a development project as defined by section 65928 of the California Government Code. "District" shall mean any assessment or financing district(s) established by the City pursuant to the Community Facilities District Act of 1982 (Mello -Roos), Government Code sections 53311 et seq. or other similar law to finance all of part of the Public Improvements through the issuance of bonds and the imposition of assessments, fees or taxes on the benefiting land, including, but not limited to, the Property. "Effective Date" shall have the meaning set forth in Section 2.1. "EIR" shall have the meaning given in Recital D. "Enacting Ordinance" shall mean the Ordinance approving this Agreement as referenced in Recital 1. "Escrow Agent" shall have the meaning set forth in Section 3.20.1. 4 D0050C/ 1455134v9/200299-0001 "Exactions" shall mean exactions that may be imposed by the City as a condition of developing the Project, including but not limited to in -lieu payments, requirements for acquisition, dedication or reservation of Iand, obligations to construct on -site or off -site public and private infrastructure improvements such as roadways, utilities or other improvements necessary to support the Project as shown in the Specific Plan, whether such exactions constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, measures imposed for the protection of the public health or safety, or impositions made under Applicable Law. "Excluded Transfers" shall have the meaning set forth in Section 7.8. "Excused Delay" shall mean delay due to war; insurrection; terrorism; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; unusually severe weather which prevents, limits, retards or hinders the ability to perform; environmental conditions, if such condition is unknown after the exercise of reasonable environmental due diligence and delays are due to necessary regulatory agency approvals; initiatives, referenda, litigation or administrative proceedings challenging the Existing Approvals or Subsequent Project Approvals, the Project or this Agreement; acts or failure to act of the other party; or a City imposed moratorium permitted by Section 3.15. "Existing Approvals" shall mean, collectively, the General Plan, Specific Plan, and the EIR. "General Plan" shall have the meaning set forth in Recital C. "I-215/1N,ewport Road Interchange Project" shall mean the proposed configuration of the interchange located at U.S. Interstate 215 and Newport Road as described in the EIR. "I-215/Newport Road Interchange District" shall have the meaning set for in Section 4.4(b). "Impact Fees" shall mean the monetary consideration charged by City in connection with a Development Project for the purpose of defraying all or a portion of the cost of mitigating the impacts of the Development Project and development of the public facilities related to development of the Development Project, including, without limitation, any "Fee" as that term is defined by Government Code section 66000(b), special taxes or assessments, but not including "Connection Fees." "Initial Term" shall have the meaning set forth in Section 2.2 "Local Agency" shall mean a governmental agency whose legislative and administrative actions the City has the ability to control. Any entity not within the exclusive control of the City, including a joint powers authority, shall not be deemed a Local Agency for the purposes of this Agreement. "Lease" shall have the meaning set forth in Section 3.19.1. "Market Value" shall mean the most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. DOCSOC/1455134v9/200299-0001 Implicit in this definition are the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: Buyer and seller are typically motivated; 2. Both parties are well informed or well advised, and acting in what they consider their best interests; A reasonable time is allowed for exposure in the open market; 4. Payment is made in terms of cash in United States dollars or in terns of financial arrangements comparable thereto; and 5. The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale. "Mortgage" shall have the meaning given in Section 8.2.1. "Mortgagee" shall have the meaning given in Section 8.2.1. "New City Laws" shall mean any ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines or other regulations, which are promulgated or adopted by the City (including but not limited to any City agency, body, department, officer or employee) or its electorate (through their power of initiative or otherwise) after the Effective Date. New City Laws include amendments to Applicable City Regulations and New Other Laws. "New Other Laws" shall mean New City Laws enacted after the Effective Date that are required to be applied to the Project pursuant to applicable State or Federal Laws. For purposes of this definition: (i) State or Federal Laws include not only enactments but also the decisional law applicable within California as determined and declared from time to time by the courts of California and of the United States; (ii) "enactments" means constitutional provisions, statutes, charter provisions, ordinances, and regulations; (iii) "regulations" means rules, regulations, orders, executive mandates, and standards, having the force of law, adopted by an employee or agency of the State of California or of the United States; (iv) "statute" means an act adopted by the California Legislature or by the Congress of the United States, or a state-wide initiative act; and (v) State or Federal Laws include enactments and regulations of applicable regional and local (other than City) governmental entities acting pursuant to State or Federal Laws as described in (i) through (iv) of this definition. "Notice of Breach" shall mean the notice provided to a defaulting party specifying the nature of the alleged Default and the manner in which such Default may be satisfactorily cured. "Notice of Subsequent Project Approval" shall mean a notice recorded in the Official Records that identifies the existence a specific Subsequent Project Approval(s) approved pursuant to Section 5.2.2. "Official Records" means the official records of the County. "Option" shall have the meaning set forth in Section 3.19.1. DO C SOC/ 1455134v9/200299-0001 "Option Period" shall have the meaning set forth in Section 3.20. "Paloma Wash Flood Channel" shall mean those certain flood control facilities constructed as a condition of Parcel Map 34275 and according to the terms of the Cooperative Agreement. "Parties" shall mean, collectively, the City and Developer. "Payment in Lieu" shall have the meaning set forth on Exhibit F. "Pedestrian Bridge" means the pedestrian bridge over the Paloma Wash Flood Channel as required pursuant to Section 3.2.3 of the Specific Plan. "Permitted Uses" shall mean those permissible uses described in the Specific Plan. "Planning Commission" shall have the meaning given in Recital 1. "Private ]improvements" shall have the meaning set forth in Section 4.1.1. "Processing Fees" shall have the meaning given in Section 3.8. "Project" shall have the meaning given in Recital C. "Project Approvals" means the Existing Approvals and all Subsequent Project Approvals. "Property" shall have the meaning given in Recital B. "Public Improvements" shall have the meaning set forth in Section 4.1.2. "Public Park" shall mean a parcel or parcels of land, exclusive of natural open space, which is open and available for use by the general public and which serves the active recreational needs of the public. For the purposes of any Public Park provided in the Paloma Wash Flood Channel pursuant to Section 3.21, below, such uses shall be limited to Sports Field Uses. "Public Park Generation Rates" shall mean the following generation rates that apply to the following types of residential development within the Project: a. Single-family dwelling unit (detached garage): 2.98 persons per dwelling unit. b. Single-family dwelling unit (attached garage): 2.59 persons per dwelling unit. C. Two dwelling units per structure: 2.64 persons per dwelling unit. d. Three or four dwelling units per structure: 2.48 persons per dwelling unit. e. Five or more dwelling units per structure: 2.34 persons per dwelling unit. f. Dwelling units located within residential projects legally restricted to occupancy by senior citizens pursuant to Civil Code Section 51.3: 1.94 persons per dwelling unit. "Public Park Obligation" shall have the meaning set forth in Section 3.21. 7 DOCSOC/ 1455134v9/200299-0001 "Public Park Master Plan/Phasing Plan" shall have the meaning set forth in Section 3.2 L I (b). "Public Park Ratio" shall mean five (5) acres per one thousand (1,000) residents within the Project as calculated using the Public Park Generation Rates. "Qualified Appraiser" shall mean an appraiser holding the MAI certification by the American Institute of Real Estate Appraisers, or if it shall not then be in existence, a member of the most nearly comparable organization, and who has a minimum of five (5) years experience in the Western Riverside County market, who is licensed by the State of California, and who is not affiliated with either Party or involved in an active transaction in which either Party is also involved. "RCFCD" shall mean Riverside County Flood Control District. "Reimbursement Agreement" shall have the meaning given in Section 4.1.4. "Requirement for Extension" shall have the meaning set forth on Exhibit F. "Residential Baseline" shall mean either 1, 052 residential within the Project if a school is developed on the Property as provided in the Specific Plan, or 1,171 (1,052 plus 119) residential units if school is not developed on the Property as provided in the Specific Plan. "ROW" shall have the meaning as set forth in Section 4.3. "School Fees" shall mean school fees imposed under state law on Developer by the Menifee Union School District, a K-8 district and/or the Perris Unified High School District, or their successors in interest. "Specific Plan" shall have the meaning given in Recital C. "Sports Field Uses" shall mean irrigated grass playing fields of a size and quality appropriate to meet the standards promulgated by the California State Soccer Association - South (Cal South), the American Youth Soccer Organization, or equivalent standards for youth soccer ages ten and under for general practice and local games (not including tournaments), as well as flag football and similar uses. The term "Sports Field Uses" shall not include any permanent structures (such as permanent goals, restroom facilities or drinking fountains, lighting, or the use of any motorized vehicles (except for construction and maintenance activities as approved by RCFCD). "Subsequent Project Approvals" shall mean additional future land use and construction approvals and permits from City in connection with development of Property, which, upon approval, shall be deemed part of the Project Approvals as of the date that they are approved and which shall have a term shall be coterminous with the term of this Agreement. "Subsequent Term" shall have the meaning set forth in Section 2.2. "Subdivision Map Act" means California Government Code, title 7, division 2, sections 66410 et seq., as may be amended from time to time. "Temporary Sports Field Uses" shall mean temporary irrigated grass playing fields of a size and quality consistent with the temporary use of the Civic Center Site for youth soccer general DOCSOC/ 1455134v9/200299-0001 practice and local games (not including tournaments), as well as flag football and similar uses to be installed on the Civic Center Site pursuant to Section 3.19. The term "Temporary Sports Field Uses" shall not include any permanent structures (such as goals, restroom facilities, drinking fountains or lighting). "Tentative Map" means a map created pursuant to the Subdivision Map Act and corresponding provisions of the Municipal Code. "Term" shall mean the period of time during which this Agreement shall be in effect and bind the Parties and their respective successors and assigns, as set forth in Section 2.2 of this Agreement and as may be extended pursuant to the provisions of this Agreement. "Third Appraiser" shall have the meaning set forth in Section 3.20.2. "Title Company" shall have the meaning set forth in Section 3.20.4. "Traffic Signalization Improvements" shall mean the following three traffic signalization projects required by the EIR as a condition of' implementation of the Project: Avenida De Cortez -Sherman Road/Newport Road. Haun Road/Holland Road, and Sherman Road/La Piedra Road. "TUMF Program" shall mean the Transportation Uniform Mitigation Fee Program of Western Riverside County as implemented pursuant to City Ordinance No. 2009-62. "WRCOG" shall mean the Western Riverside Council of Governments, as the administrator of the TUMF Program. "Written Objection" shall have the meaning set forth in Section 3.20.2. ARTICLE 2. EFFECTIVE DATE, TERM & REPRESENTATIONS AND WARRANTIES 2.1 Effective Date. This Agreement shall effective as of the latter of the dates upon which both the Enacting Ordinance has become effective and full execution of this Agreement has occurred ("Effective Date"). The Effective Date is inserted on the title page of this Agreement. The Parties acknowledge that section 65868.5 of the Development Agreement Statute requires that this Agreement be recorded with the City Recorder no later than ten (10) days after the Effective Date, and that the burdens of' this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. Further, within five working days of the date of the Enacting Ordinance, the City shall file with the City clerk a Notice of Determination pursuant to CEQA regarding the Existing Approvals and this Agreement. 2.2 Term. The Tenn of this Agreement shall commence on the Effective Date and shall continue for a period of two (2) years ("Initial Term") from and after the Effective Date, unless this Agreement is otherwise terminated or extended in accordance with the provisions of this Agreement. At the end of the Initial Term, the Tenn shall be automatically extended for the period of time set forth on Exhibit F (each a "Subsequent Term") if, by the end of the Initial Term and the end of each Subsequent Term thereafter, the Developer has either (i) completed the "Requirement for Extension" set forth in Exhibit F to the City Manager's reasonable satisfaction or (ii) at the Developer's option, made the "Payment In Lieu" set forth in Exhibit F. Any Payment in Lieu under this Section 2.2. shall be a dollar for dollar credit against Impact Fees for the Project. If the 9 D OCSOC/ l 455134v9/200299-0001 Developer does not either meet the Requirement for Extension or make the Payment in Lieu by the end of the Initial Term or any Subsequent Term thereafter, this Agreement shall terminate and have no further force or effect. The Initial Term and Subsequent Terms have been established by the Parties as a reasonable estimate of the time required to develop the Project and obtain the public benefits of the Project. if the Developer has met all the requirements of this Section 2.2 to obtain the right to each of the Subsequent Terms set forth in Exhibit F. then the Term shall also be extended by the City Council for one period of three years if the Developer is not in material default of any of its obligations herein and the City Council determines in its reasonable discretion that prior to the expiration of the Term (A) the Developer has made diligent efforts to (i) develop, market and sell the Property, (ii) apply for required Subsequent Project Approvals for the Project improvements, and (iii) construct the Project improvements, but despite such diligent efforts, the Developer has not been reasonably able complete construction to of the Project, and (B) Developer has either obtained building permit(s) for office/commercial use(s) totaling at least 150,000 square feet of gross building area within the Project in the aggregate since the Effective Date (or, at Developer's option, agreed as a condition of extending the Term to pay $250,000 as a Payment in Lieu). 2.3 Developer's Representations and Warranties. Developer represents and warrants to City that, as of the Effective Date: 2.3.1 Developer is duly organized and validly existing under the laws of the State of Delaware, and is in good standing and has all necessary powers under the laws of the State of California to own property interests and in all other respects to enter into and perform its respective undertakings and obligations under this Agreement. 2.3.2 No approvals or consents of any persons or entities are necessary for the execution, delivery or performance of this Agreement by Developer, except as has been obtained. 2.3.3 The execution and delivery of this Agreement and the performance of the obligations of Developer hereunder have been duly authorized by all necessary corporate, partnership or company action and all necessary shareholder, partner and/or member approvals have been obtained. 2.3.4 This Agreement is a valid obligation of Developer and is enforceable in accordance with its terms. 2.3.5 Developer has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by the Developer's creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Developer's assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Developer's assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally. 2.3.6 Developer owns the Property in fee simple. During the Term of this Agreement, the Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.3 not to be true, give written notice of such fact or condition to City within 10 (ten) days of learning such fact or condition. 10 D O C S O C/ 145 513 4 v 9/20 0299 - 0001 ARTICLE 3. DEVELOPMENT OF THE PROPERTY 3.1 Uses and Development Standards. Subject to the terns and conditions of this Agreement and the obligations and conditions required by the Applicable Law, the City hereby grants to the Developer the present vested right to develop and construct on the Property all the improvements authorized by and subject to the requirements (including the requirement to obtain and comply with any Subsequent Project Approvals) of the Project Approvals and this Agreement. To the extent permitted by all applicable law, and except as otherwise provided herein, no future amendment, modification or repeal of the Applicable City Regulations shall apply to the Property that purports to (i) limit the Permitted Uses of the Property, the density and intensity of use (including but not limited to maximum number of dwelling units and floor area ratios of commercial/retail buildings), the maximum height and size of proposed buildings, (ii) impose new or modify existing requirements for reservation or dedication of land for public purposes, public infrastructure and utilities, or public improvements, except as necessary to comply with Applicable City Regulations and/or to provide services under the Subdivision Map Act and corresponding provisions of the Municipal Code with respect to the future subdivision of land contemplated in the Project Approvals and this Agreement, (iii) impose conditions upon development of the Property other than as permitted by the Applicable Law, the Project Approvals and this Agreement, or (iv) limit the rate of development of the Property; provided, however, that nothing in this Agreement shall prevent or preclude City from adopting any land use plans, ordinances, policies, regulations or amendments permitted herein. 3.2 Density and Intensity of Development. Developer shall have the vested right to develop the Property in conformance with and subject to the maximum density indicated in the Specific Plan. Minimum/maximum lot size, maximum gross lot coverage, maximum floor area, setbacks, authorized density transfers, and other development and design standards shall be as specified in Specific Plan. 3.3 Conflicts. In the event of any express conflict or inconsistency between the terms of this Agreement and any aspect, term or condition of Applicable Law, this Agreement shall control. 3.4 Tentative Maps. When the Developer submits an application for approval of a Tentative Map, (i) any such Tentative Map shall comply with the requirements of Government Code section 66473.7, and (ii) the City shall not require the Developer include any land not owned by the Developer in such application, or as a condition of approval of a Tentative Map or final subdivision map. 3.5 hnpact Fees, Exactions, Processing Fees and Taxes. Except as otherwise provided herein, the Developer agrees to pay when due any required fees, taxes, assessments, Impact Fees, and Exactions which may be levied or assessed against the Project in accordance with this Agreement, as and to the extent provided below related to the Property. The Developer reserves the right to challenge whether such fees, special taxes, assessments, Impact Fees or Exactions have been accurately and appropriately calculated, measured and/or applied to the Property, or portion thereof, in accordance with this Agreement. In the event that the Developer challenges such fee, special tax, assessment, Impact Fee or Exaction, the Developer shall timely pay under protest. The City shall not delay issuance of permits pending resolution of such protest as long as the Developer has timely paid under protest as provided in this Section 3.5. DOCSOG I455134v9/200299-0001 3.6 Federal/State Compliance Fees. City may charge and the Developer, individually, on its sole behalf, and only with respect to its real property, agrees to pay any new, increased or modified taxes, assessments, Impact Fees or Exactions, whether imposed as a condition of or in connection with any Subsequent Project Approvals or otherwise, to comply with the requirements of any Federal or State statute, regulation, or legal requirement which is enacted or adopted or becomes effective or operative with respect to the Project after the Effective Date of this Agreement. 3.7 Non -Local Agency Compliance Fees. City may collect and the Developer agrees to pay any new, increased or modified taxes, assessments, Impact Fees or Exactions, whether imposed as a condition of or in connection with any Subsequent Project Approvals or otherwise, which are uniformly imposed and reasonably necessary to comply with the requirements of local governmental agencies other than a Local Agency and which (i) such local governmental agency has the independent legal authority to impose such tax, assessment, Impact Fee, or Exaction without the permission or consent of the City and (ii) the City has agreed or is required to collect on behalf of such governmental agencies for administration purposes only. 3.8 Processing Fees. City may charge and the Developer agrees to pay all processing fees, including without limitation application, permit processing, plan checking (time and materials) and inspection and monitoring fees ("Processing Fees"), for land use approvals, grading and building permits, and other permits and entitlements, which are in force and effect on a City-wide or area -wide basis (i.e., that includes more than the Project) at the time those permits, approvals or entitlements are applied for, and which are intended to cover the actual costs of processing the foregoing. 3.9 Impact Fees and Exactions. Other than as provided expressly in this Section 3.9 and Section 3.21 of this Agreement, Developer shall pay all Impact Fees which are in force and effect on a City-wide or area- wide (i.e.. that includes more than the Property) basis at rates then in effect at time when such Impact Fees are otherwise due. As of the date of approval by the City of a Plot Plan pursuant to Section 7.2.2 of the Specific Plan, the Impact Fees in effect as of the date of approval of the Plot Plan shall be fixed and shall not be subject to any increases for a period of two (2) years from the date of approval of the Plot Plan. For the Term, City may impose and the Developer shall comply with those Exactions required by the Existing Approvals and this Agreement; provided, however, the City will not impose and the Developer shall not be required to comply with and/or pay for any Exactions other than as provided in or contemplated by this Agreement or the Existing Approvals. As used in this Section, the City is not deemed to be "impos[ing]" an Exaction or Impact Fee in circumstances wherein the City serves merely as a depositary or fiscal agent to facilitate another entity's collection of such Exactions or Impact Fees, or similar charges that the other entity may independently impose. In addition, each residential unit developed above the Residential Baseline, not to exceed 703 additional units, shall pay an additional $9,000 per unit to the City as additional consideration for this Agreement which may be used by the City for any lawful purpose. 3.10 Consulting Fees. City may, in its sole discretion, contract with one or more outside planners, inspectors, engineers, architects, or consultants ("Consultant" and collectively "Consultants") to perform all or any portion of the planning, monitoring, inspection, testing and evaluation services to be performed in connection with processing applications, construction and development of the Project. At the time the City receives an application for a Subsequent Project Approval from the Developer or other request for planning, monitoring, inspection, testing or evaluation services, if the City intends to contract with a Consultant or Consultants, the City shall promptly consult with the Developer making such request in establishing a scope of work and 12 DOCSOC/1455134v9/200299-0001 budget(s) for any proposed service contract, including any substantial revision or change order thereto, with each Consultant ("Consultant Contract"); but the choice of Consultant and scope of work shall be determined by the City. If Developer disagrees with the City's choice of Consultant or scope of work, the Developer shall notify the City in writing within ten (10) days of learning of the City's choice and the basis for the disagreement (the "Developer Objection"). if the Developer Objection is timely submitted, the City shall make reasonable efforts to address the Developer Objections prior to engaging, retaining or otherwise hiring a Consultant. if the City is unable to resolve the Developer Objection and the Developer still objects to the Consultant or scope of work after consultation with the City, the City shall provide the Developer with a written notice of intent to engage the Consultant over the Developer's Objection and the notice will provide ten (10) days from the date of the notice to confirm in writing that the Developer still wants to proceed with the application or not. if the Developer either (i) confirms that the Developer still wants to proceed with the application or (ii) fails to timely respond to the notice, the City may proceed to execute the Consultant Contract. The Developer reserves the right to withdraw the application that is the subject of the Consultant Contract at any time. if the Developer withdraws after the City has entered into a Consultant Contract consistent with this Section 3.10, the Developer will be responsible for any amounts owing to the Consultant prior to the date of withdrawal. City agrees that the scope of work to be undertaken by the Consultant(s) shall be reasonable in light of the size, type and complexity of the application or request made by the requesting Developer. Each Consultant Contract specific to this Project shall require Consultant to submit itemized invoices to City for moneys then owed ("Consultant Fees"). City shall provide the requesting Developer with copies of itemized invoices for such services promptly upon receipt of the invoice from the Consultant by City, provided, however, that City shall not be required to disclose any information on its attorneys' invoices that may be subject to attorney -client or work -product privilege. The Developer shall pay to City, within thirty (30) days following City's written demand therefore, the full amount of all Consultant Fees; provided, however, the Developer shall have the right to dispute in writing any charges which it believes, in its reasonable business judgment, are incorrect, unreasonable or outside the scope of the approved Consultant Contract, within fourteen (14) days of City's provision of the itemized invoice. Failure to submit a written dispute within such fourteen (14) day period shall be deemed Developer's agreement to the accuracy and reasonableness of such charges. If a requesting Developer timely disputes a charge, City shall require Consultant to provide a good faith, written explanation. If, after consultation with requesting Developer, City finds the cost or fee is incorrect, unreasonable or outside the terms of the approved Consultant Contract, City shall require that Consultant reduce its charges accordingly. If City finds the cost or fee is correct, reasonable and within the scope of the approved Consultant Contract, then requesting Developer shall pay to City the full amount of such Consultant Fees within thirty (30) days following such determination. Any reduction shall be credited against requesting Developer's next invoice or promptly refunded in the event the dispute relates to a final invoice. If the requesting Developer makes a timely objection to a final invoice, payment shall be withheld for up to thirty (30) days to permit City to determine, in light of requesting Developer's objections, whether the charges will be rejected. The Consultant Fees shall be in addition to, and not in lieu of, the Processing Fees; provided, however, City agrees not to double charge Developer (through the imposition of both a Processing Fee and a Consultant Fee) for any individual monitoring, inspection, testing or evaluation service. As an example, and without limitation, the provision by City employees of supervisory, oversight, review, quality control, or similar functions relating to work performed by Consultants shall not be deemed double charging. The City may, in its sole discretion, choose to include in the scope of work for a service contract with a Consultant matters affecting topics or property other than property of a requesting Developer; provided, however, the requesting Developer shall only be responsible for the work related to the subject of its application. This provision shall not be interpreted to require the Developer to pay to 13 D OCSOC/ 145 5134v9/200299-0001 the City any amounts due to a Consultant, Consultants, or any outside attorney retained by the City for (1) matters unrelated to a pending application of the Developer, or (2) legal disputes that may arise between the Developer and the City under this Agreement or the Project Approvals. 3.11 Timing of Commencement of Construction and Completion. Except as expressly provided in this Agreement and/or the Existing Approvals, Developer shall have the vested right to develop the Project in such order, at such rate and at such times as the Developer deems appropriate in the exercise of its business judgment. In particular, and not in any limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the Parties therein to consider, and expressly provide for, the timing of development resulted in a later -adopted initiative restricting the timing of development to prevail over such Parties' agreement, it is the desire of the Parties hereto to avoid that result. The Parties acknowledge that, except as otherwise provided for in this Agreement or the Specific Plan, Developer shall have the vested right to develop its respective portion of the Property in such order and at such rate and at such times as the Developer deems appropriate in the exercise of its business judgment. Accordingly. except as provided in Section 3.13 of this Agreement, no New City Law shalt constrain Developer's vested right to proceed with development at such rate and at such times as the Developer deems appropriate in the exercise of its business judgment. 3.12 Copies of Applicable City Regulations. Within thirty (30) days after the Effective Date of this Agreement, the Parties shall prepare copies of the Applicable City Regulations applicable to the Project as of the Effective Date, one (1) set for City and one (1) set for the Developer who requests a copy, so that if it becomes necessary in the future to refer to any of the Applicable City Regulations, there will be a common set available to the Parties. Inadvertent failure to include in the sets of copies of the Applicable City Regulations any rile, regulation, policy, standard or specification that is within the Applicable City Regulations as described in this Agreement shall not affect the applicability of such rule, regulation, policy, standard or specification. 3.13 New City Laws: Reservations of Authority. New City Laws shall not be applicable to the Property except as otherwise provided in this Section. The Parties acknowledge and agree that City is restricted in its authority to limit its police power by Development Agreement and that the limitations, reservations and exceptions contained in this Section are intended to reserve to City all of its police power which cannot be so limited by Development Agreement. This Agreement shall be construed to reserve to City all such power and authority which cannot be restricted by Development Agreement. Notwithstanding any other provision of this Agreement to the contrary, the following regulations and provisions shall apply to the development of the Property: 3.13.1 Processing Fees and charges of every kind and nature imposed by City, including, without limitation, planning processing deposits, to cover the actual costs to City of processing applications for Project Approvals, or for monitoring compliance with any Project Approvals granted or issued, as such fees and charges are adjusted from time to time. 3.13.2 Ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines, procedures or other laws or regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, provided that such ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines, procedures or other laws or regulations are uniformly applied on a City-wide basis to Development Projects, 14 DOCSOC/ 14551340/200299-0001 3.13.3 Regulations governing construction standards and specifications for the physical construction of buildings and related improvements and infrastructure, including City's building code, plumbing code, mechanical code, electrical code, fire code and grading code, and all other uniform construction codes then applicable in City at the time of permit application. 3.13.4 New City Laws which may be in conflict with this Agreement or the Project Approvals but which are necessary to protect persons or property from dangerous or hazardous conditions which create a threat to the public health or safety or create a physical risk, based on findings by the City Council identifying the dangerous or hazardous conditions requiring such changes in the law, why there are no feasible alternatives to the imposition of such changes, how such changes would alleviate the dangerous or hazardous condition, and how the changes are narrowly tailored to address the dangerous or hazardous condition. 3.13.5 New City Laws applicable to the Property, which do not conflict with this Agreement and/or the Applicable City Regulations, provided such New City Laws be uniformly applied on a City-wide or area wide (i.e., not only the Project) basis to Development Projects. 3.13.6 Connection Pees then applicable in the City. 3.13.7 New Other Laws. 3.14 Developer's Contest of Applicability of New City Laws. If the Developer believes that the application of any New City Laws to the Project (i) prevents or precludes compliance with one or more provisions of the Project Approvals or this Agreement, or (ii) has the effect of materially impeding or preventing development of the Project in accordance with the Project Approvals or this Agreement, the Developer wishing to contest the application of such New City Law shall give written notice to the City of such issue, including stating the basis upon which the Developer believes a New City Law is not applicable to the Property or to a portion of it. Developer's written notice shall explain the factual and legal reasons how the application of New City Law would materially and adversely affect the Developer's rights under this Agreement. The City shall respond in writing to the Developer's notice within forty-five (45) days of receipt of such notice. If the City does not provide a written response that resolves the issue, at the Developer's request, the Parties shall meet and confer within thirty (30) days of Developer's request. The Parties shall meet and confer, as necessary and appropriate, for a period of sixty (60) days to determine whether any modification, extension or suspension of this Agreement is necessary to comply with such New City Laws. The period to meet and confer may be extended by mutual agreement of the Parties. It is the intent of the Parties that any such modification or suspension be limited to that which is necessary, and to preserve to the extent possible the original intent of the Parties in entering into this Agreement. If after meeting and conferring, the Parties fail to find a mutually agreeable solution to modify, extend or suspend this Agreement in order to achieve compliance with such New City Laws or determine that the New City Laws are not applicable to the Project, then Developer shall have the right, at its sole election, to either: (i) pursue litigation pursuant to Section 6.3, or (ii) to request that City cancel this Agreement by giving a written request for cancellation to the City and Developer not earlier than sixty (60) days, nor more than one hundred eighty (180) days, after the last day of the period within which the Parties are to meet and confer; provided, however, that before the Developer shall submit such request for cancellation, the requesting Developer shall give at least sixty (60) days 15 DOCSOC/ 1455134v9/200299-0001 written notice of its intent to request cancellation to the City. Nothing in this Agreement shall be deemed a waiver of Developer's right to challenge or contest the validity or applicability of any New Other Laws. 3.15 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter -approval -for -development requirement that affects the Project on all or part of the Property, the City agrees that such ordinance, resolution or other measure shall not apply to the Property or this Agreement unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code section 8558 or is within the reservations of authority set forth in Section 3.13, provided that any such moratorium shall extend only for the duration of such emergency. 3.16 Initiatives and Referenda. If any New City Law is enacted or imposed by an initiative or referendum, which New City Law would conflict with the Applicable City Regulations or this Agreement or reduce the development rights or assurances provided by this Agreement, such New City Law shall not apply to the Property; provided, however, the Parties acknowledge that City's approval of this Agreement is a legislative action subject to referendum. Without limiting the generality of any of the foregoing, no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, use permits, building permits or other entitlements to develop or use the Property that are approved or to be approved, issued or granted by City shall apply to the Property unless the limitation is within the reservations of authority set forth in Section 3.13. Developer agrees and understands that City does not have authority or jurisdiction over any other public agency's ability to grant governmental approvals or permits or to impose a moratorium or other limitations that may affect the Project. City shall cooperate with the Developer, and, at a requesting Developer expense, shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect according to its terms. City may take all appropriate actions to submit to vote of the electorate initiatives and referenda required by law to be placed on a ballot and to fulfill any legal responsibility to defend a ballot measure passed by its voters. 3.17 Regulation by Other Public Agencies. Developer acknowledges and agrees that other public agencies not within the control of City may possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Developer shall, at the time required by Developer in accordance with Developer's construction schedule, apply for and obtain all such other permits and approvals as may be legally required by any other applicable governmental or quasi -governmental entities with jurisdiction over the Project in connection with the development of, or the provision of services to, the Project. Developer shall also pay all required fees to such public agencies when due. To the extent required by the City to confirm compliance with Project Approvals, the Developer shall provide proof of such permits/approvals and/or payment of such fees to City prior to or concurrently with issuance of building permits for any portion of the Project for which such permits or approvals are required and/or fees are due. Developer acknowledges that City does not control the issuance of permits or approvals or the amount of any such fees. City shall cooperate with Developer in Developer's effort to obtain such permits and approvals; provided, however, City shall have no obligation to incur any costs, without compensation or reimbursement, or to amend any City policy, regulation or ordinance in connection therewith. In the event that School Fees are imposed upon the Developer that the Developer believes in good faith are in excess of, or not otherwise required by 16 DOCSOC/ 1455134v9/200299-0001 state law and the Developer wishes to object to such School Fees, the Developer may pay such fees under protest; if the Developer objects and pays School Fees under protest, the City agrees not to delay issuance of permits under these circumstances. 3.19 Insurance Requirements. During any period of construction of Project Public Improvements on the Property, the Developer shall procure and maintain, or cause its contractor(s) to procure and maintain for the duration of this Agreement a commercial general liability, workers compensation, and other types of insurance in limit amounts and on such forms that may be required by the City in its reasonable discretion and then commonly available in the commercial insurance marketplace. Developer's insurance shall be placed with insurers with a current A.M. Best's rating of no less than A-:VII or a rating otherwise approved by the City Manager in his or her sole discretion. Developer shall furnish at City's request appropriate certificate(s) of insurance evidencing the insurance coverage required by the Developer hereunder, and the City of Menifee and its elected and appointed officials, officers, agents, employees, contractors and representatives (collectively, "City Parties") shall be named as additional insured Parties under the policies required hereunder. The certificate of insurance shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination (ten (10) days advance notice in the case of cancellation for nonpayment of premiums) where the insurance carrier provides such notice to the Developer. Coverage provided hereunder by the Developer shall be primary insurance and shall not be contributing with any insurance, self-insurance or joint self insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City and its insurers, if such waiver is available in the commercial insurance marketplace. 3.19 Civic Center Site. 3.19.1 Conveyance of Civic Center Site. Within the time set forth in this Section 3.19.1, the Developer shall convey the Civic Center Site to the City by grant deed, at no cost to the City, for Civic Facilities. At the City's request, and at the City's sole discretion, the City may instead require the Developer to convey a leasehold interest ("Lease") in the Civic Center Site with an option to purchase ("Option") each of which shall be in form and content mutually acceptable to the City and Developer and each of which shall include the following material term, as applicable to each: (i) the term of the Lease shall be concurrent with the term of this Agreement; (ii) the City shall have the right, at any time daring the term of the Lease, to exercise the Option to purchase the Civic Center Site for ONE DOLLAR ($1.00); (iii) during the term of the Lease and Option, the City shall pay or reimburse the Developer, as applicable, for property taxes due with respect to the Civic Center Site; (iv) the City shall indemnify the Developer with respect to any third party liability claims related to the Civic Center Site except in the case of negligence or willful misconduct of the Developer, and (v) the City shall be responsible for any and all maintenance required for the use and enjoyment of the Civic Center Site. The time for conveyance shall be extended in the event of Excused Delay. The conveyance of the Civic Center Site, whether initially conveyed to the City or pursuant to the Option, shall (i) be by grant deed, (ii) limit the future uses of the Civic Center Site to Civic Facilities only in perpetuity, and (iii) shall limit the maximum square footage of building area on the Civic Center Site to sixty thousand (60,000) square feet, unless the City, at its sole cost and expense, amends the Specific Plan to allow for the additional proposed square footage of building in accordance with all legal requirements, including the CEQA, and shall be solely responsible for complying with any revised or new mitigation measures resulting from such amendment. The Developer shall, as soon as reasonably possible after this Agreement is effective prepare, submit, 17 DOCSOC/ 1455134v9/200299-0001 obtain all necessary approvals for, and record, at its sole cost, a subdivision map (or otherwise complies with the requirement of the Subdivision Map Act) so that the Civic Center Site becomes a separate legal parcel that can be transferred to the City by grant deed or Lease and Option under this Section 3.19.1. The City shall accept such conveyance, whether by grant deed or Lease and Option, within ten (10) days of the creation of the Civic Center Site as a separate legal parcel. The City shall cooperate in good faith with the Developer to expedite the review and processing of such subdivision process for the Civic Center Site. The obligations of this Section 3.19.1 shall survive termination of this Agreement. 3.19.2 Improvements Related to Civic Center Site. Upon the earlier to occur of (i) two (2) years from the Effective Date or (ii) issuance of the first building permit within the Project, Developer shall have obtained the necessary permits and have commenced the satisfaction the following obligations set forth in subsections (A) and (B) below related to the Civic Center Site and shall complete such construction within one (1) year of commencement. The time for compliance with this Section 3.19.2 shall be extended in the event of Excused Delay. (A) provide appropriate infrastructure to serve the Civic Center Site, including, but not limited to the extension of Shennan Road from Newport Road to the Civic Center Site and stubbing basic utilities (water, sewer and joint trench), and such infrastructure shall have either have been constructed, or guaranteed with appropriate financial guarantees, to the reasonable satisfaction of the City Engineer, and (B) have done all of the following to the reasonable satisfaction of the Community Development Director and City Engineer, (i) installed Temporary Sports Field Uses on as much of the Civic Center Site as can reasonably accommodate such uses, (H) installed sufficient temporary parking facilities (gravel and/or decomposed granite shall be acceptable) on and around the Civic Center Site and along Sherman Road to serve the Temporary Sports Field Uses, and (iii) installed either, at the Developer's option, permanent restroom facilities on the Central Park Site or temporary restroom facilities on the Civic Center Site (that will be closed once permanent restroom facilities are constructed and open to the public on the Central Park Site in accordance with the Public Park Master Park Plan/Phasing Plan) sufficient to serve the Temporary Sports Field Uses. The Temporary Sports Field Uses, temporary parking and restroom facilities will be maintained by the City upon the acceptance of the Civic Center Site by the City, whether by grant deed or by Lease as provided above. At the time of conveyance of the Civic Center Site to the City whether by grant deed or Lease, the Developer will also provide the City with all appropriate and necessary access rights to allow the City to perform these maintenance obligations with respect to the temporary parking facilities and the restroom facilities that serve the Temporary Sports Field Uses. Subject to the reasonable review and approval of the Community Development Director and City Engineer, the Developer reserves the right to relocate, modify and/or temporarily close the temporary parking facilities and/or restroom facilities as reasonably necessary to develop the Project. Any Closure of such facilities shall not be longer than five (5) days without the approval of the Community Development Director and City Engineer. The City reserves all rights to close and/or remove the Temporary Sports Field Uses at any time. The Temporary Sports Field Uses shall not used by as a credit against any Public Park Obligation. 3.20 Courthouse Site. If the Courthouse Site is selected for the development of the Courthouse, the Developer shall sell the Courthouse Site to the Office of Courthouse Construction and Management, or its designee, for fifty percent (50%) of Market Value. if the Courthouse Site is E DOCSOC/ 1455134 v9/200299-0001 not selected for the future construction of the Courthouse, the City shall have an exclusive option to purchase the Courthouse Site for fifty percent (501/6) of Market Value. The City shall have such option for a period of three (3) months from the earlier of the two dates (i) a final decision by the Office of Courthouse Construction, or its designee or replacement agency not to select the Courthouse Site or (ii) two (2) years from the Effective Date of this Agreement ("Option Period"). If the City elects to exercise its option under this Section 3.20, the grant deed for the Courthouse Site shall (i) limit the uses of the property to Civic Facilities for a period which shall end upon the earlier of the following two occurrences: (1) the date ten (10) years from the date of transfer of the Courthouse Site to the City or (2) seventy-five percent (75%) build -out of the maximum allowed development within the Mixed -Use land use designation in the Specific Plan and (ii) shall limit the maximum square footage of building area on the Courthouse Site to one hundred and twenty thousand (120,000) square feet, unless the City, at its sole cost and expense, amends the Specific Plan to allow for the additional proposed square footage of building in accordance with all legal requirements, including the CEQA, and shall be solely responsible for complying with any revised or new mitigation measures resulting from such amendment. Regardless of whether the Courthouse Site is acquired for the development of the Courthouse, or the City, under the terms of this Section 3.20, the Developer shall do tine following prior to transfer: (1) The Developer shall have prepared, obtained all necessary approvals and recorded, at its sole cost, a subdivision map (or otherwise complies with the requirement of the Subdivision Map Act) so that the Courthouse Site becomes a separate legal parcel that can be transferred to a third party; and (2) As a condition of such subdivision map, the Developer shall be required to provide appropriate infrastructure to serve the Courthouse Site, including, but not limited to the extension of Sherman Road from Newport Road to the Courthouse Site and stubbing necessary utilities (water, sewer and joint trench), and such infrastructure have either have been constructed, or guaranteed with appropriate financial guarantees, to the reasonable satisfaction of the City Engineer; and (3) The Developer shall have rough graded the Courthouse Site, including the installation of appropriate erosion control measures, to the reasonable satisfaction of the City Engineer. 3.20.1 Manner of Exercise of City's Option. City shall exercise its option to acquire the Courthouse Site by delivering written notice to Developer of City's intention to do so within the Option Period. Within ten (10) days after City delivers such notice to Developer, City and Developer shall open an escrow for the conveyance with and escrow company as may be selected by Developer and subject to City's reasonable approval (the "Escrow Agent"). The escrow instructions for the conveyance shall be consistent with this Section 3.20. City and Developer agree to execute such additional instructions as may be reasonably required by the Escrow Agent in order to accomplish the purposes of this Section 3.20 and close the escrow within sixty (60) days after the date tine escrow is opened; provided, however, that in the event of any conflicts between the standard printed form escrow instructions of the Escrow Agent and the provision of this Section 3.20, shall prevail. 3.20.2 Determination of Market Value. If the Parties are required to determine Market Value pursuant to Section 3.20 (either for purposes of sale to the Office of Courthouse Construction and Management or the City), the Parties shall meet and confer to determine if they can establish Market Value for the Courthouse Site for the purposes of this Agreement. If the parties are 19 DOCSOC/ 1455134v9/200299-0001 unable to agree on Market Value, the City shall, at its cost, retain a Qualified Appraiser to determine Market Value of the Civic Center Site. The City shall deliver a copy of the appraisal of Market Value prepared under this Section 3.20.2 (tile "Appraisal") and corresponding appraisal instructions agreed upon by the Parties to the Developer. The appraisal instructions shall require that the Appraisal assume the Specific Plan allowed uses as the highest and best use. The City shall provide a copy of the appraisal instructions to the Developer for approval prior to preparation of the Appraisal. Upon receipt of the Appraisal, the Developer shall have a period of fifteen (15) days after receipt thereof within which to object to the first Appraisal (the "First Appraisal") by delivering a written statement (the "Written Objection") to City describing in detail the reasons for the objection, stating the Developer's opinion of the accurate determination of Market Value, and providing the basis for such opinion. If the Developer fails to deliver such Written Objection within such fifteen (15) day period, the Developer shall be deemed to have accepted and agreed to the First Appraisal. If the Developer timely delivers the required Written Objection to the City, the Developer shall retain a second Qualified Appraiser ("Second Appraiser"). The Second Appraiser shall be provided a copy of the First Appraisal with the request for a second appraisal (the "Second Appraisal"). The Second Appraisal shall (1) be prepared according to the same appraisal instructions as the First Appraisal, (2) determine the Market Value as of the date of the First Appraisal, (3) not be based on any information that was not available to the first appraiser at the time the First Appraisal was prepared (e.g., comparable sales that took place after the date of the appraisal), (4) include an explanation of any difference from the First Appraisal, (5) be prepared within sixty (60) days from the date of request, and (6) delivered to City and Developer. If the value determined by the Second Appraiser is equal to or less than ten percent (10%) (more or less) of the value determined initially by the appraiser, the value determined by the first appraiser shall be as Market Value. If the value determined by the Second Appraisal is equal to or between eleven percent (11%) and twenty percent (20%) (more or less) than the value determined initially by the first appraiser, the Market Value for the purposes of this Agreement shall be the average of the value determined by the First Appraisal and the Second Appraisal. If the value determined by the Second Appraisal is equal to or greater than twenty-one percent (21%) (more or less) than the value of the First Appraisal, then the City and Developer shall jointly retain a third Qualified Appraiser using the same selection process, if necessary as the Second Appraiser ("Third Appraiser"). Upon such selection, the first and second appraisers shall be directed to deliver to the Third Appraiser sealed envelopes containing the First and Second Appraisals. Upon receipt of such sealed envelope, the Third Appraiser shall have sixty (60) days to conduct an independent appraisal, using the same criteria and the same information as applicable to the first two appraisals. During such time, the Third Appraiser shall not open the sealed envelope containing the First or Second Appraisals or communicate with the first or second appraisers. Upon the Third Appraiser's completion of the third appraisal (the "Third Appraisal"), the Third Appraiser shall, in a meeting with the City and Developer, open the sealed envelope containing the first two appraisals, compare all three appraised values and shall determine which of the two initial appraised values is closest to the Third Appraisal. The Parties agree that for all purposes, the appraised value of the property shall be equal to the average of the Third Appraisal and the closer of the two initial appraised values to the Third Appraiser's final appraised value. If the Third Appraisal is exactly one-half of the difference between the two initial appraised values, then the Third Appraisal shall be the Market Value for all purposes. The Third Appraiser's final detennination of the Market Value shall be delivered to the City and Developer. The cost of the Third Appraisal shall be split between City and Developer. The decision of the Third Appraiser under this Section 3.20.2 shall be binding and conclusive as to the Parties for the purposes of this Agreement. Following receipt of an Appraisal that determines Market Value under this Section 3,20.2. the City or Office of Courthouse Construction and Management, as 20 DOCS OC/ 1455134v9/200299-0001 applicable, may acquire, or waive its right to acquire, the Courthouse Site pursuant to Section 3.20 of this Agreement. 3.20.3 Condition of Title. Developer shall convey fee simple title to the Courthouse Site by grant deed. Developer shall convey and City shall accept fee simple title to the Courthouse Site free and clear of all recorded and unrecorded monetary liens. Developer further agrees to convey the Courthouse Site free and clear of all recorded and unrecorded non -monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and other exceptions to or defects in title, excepting only the following: (i) non -delinquent property taxes and assessments (to be paid by Developer prior to the closing; subject to Developer's right to apply for a refund for any portion of said taxes or assessments allocable to the period after the closing date); (ii) the lien of this Agreement; (iii) the standard printed title exceptions in the form of CLTA title policy (or ALTA policy with Western Regional Exceptions) commonly used by the Title Company; (iv) the grant deed requirements of this Section 3.20; (v) reserved easements for the Developer for the implementation of the Project which do not interfere with the quiet use and enjoyment of the Courthouse Site by the City or the Office of Courthouse Construction and Management, as applicable; and (vi) those additional title exceptions as may be approved in writing by City in its sole and absolute discretion. 3.20.4 Escrow Fees, Title Charges, and Closing Costs. City and Developer each shall pay one-half (%z) of the escrow fees and closing costs incurred for the conveyance of the Courthouse Site, except that Developer shall pay any non -delinquent property taxes and assessments and all costs required to place title in the condition described in Section 3.20.3. Developer shall cause a title company as may be selected by Developer and subject to City's reasonable approval (the "Title Company"), to deliver to City at the close of escrow a standard form CLTA owner's policy of title insurance (or ALTA policy with Western Regional Exceptions) showing title vested in City in the condition described in Section 3.20.3, with title insurance coverage in the amount of the Market Value of the Courthouse Site. Developer shall pay for the premium for said policy. Developer and City hereby warrant and represent to one another that neither party will engage the services of a broker nor finder in this transaction, and each agrees to indemnify, defend, and hold the other harmless from and against any claims, liabilities, or losses arising out of a breach of such warranty and representation.] 3.21 Public Park Obligation. Notwithstanding anything in Section 3.9 or the Applicable Law to the contrary, this Section 3.21 shall set forth the full and complete satisfaction of the obligation related to provision of Public Park (local and regional) pursuant to the Municipal Code and this Agreement, and no further Public Park or any type of in lieu fees related to Public Park shall apply to the Project for the term of this Agreement ("Public Park Obligation"). In full and complete satisfaction of the Public Park Obligation, the Project shall do all of the following: 3.21.1 Timing and Scope of Public Park Improvement Park Dedication and Pedestrian Bridge. (a) Park Dedication. For each phase of the Project that includes residential dwelling units, the Project shall provide (or have provided in an earlier phase, at the Developer's option) improved Public Park for the Project at the Public Park Ratio and the Public Park Generation Rates. The Public Park shall be improved and dedicated to the City prior to the first certificate of occupancy for such proposed phase. For example only, if a Project phase includes 100 single family residential units all with detached garages, the Project phase would require 1.49 acres of Public Park under this Section 3.21 (100 x 2.98 = 298 x 5=1,49011000 = 1.49). 21 DOCSOC/ 145513 4v9/200299-0001 (b) Public Park Master Plan/Phasing Plan. Concurrent with the first application for a Subsequent Project Approval that includes residential units, the Developer shall submit to the City a conceptual park phasing plan which describes the proposed phasing of the Public Park, including, for each phase, (i) the size and location, (ii) proposed access for each, associated shared parking within an appropriate radius, and (iii) conceptual improvements for to allow the City to determine, in its reasonable discretion and consistent with the requirements of this Agreement, that each phase of the Sports Field Uses and Central Park Site will be an appropriate size and have the appropriate scope and quality of improvements to be useable as Public Park, and that each phase will have appropriate access and shared parking available prior to use ("Public Park Master Plan/Phasing Plan"). The City shall, within its reasonable discretion and subject to the requirements of this Agreement, approve, conditionally approve or reject such Park Phasing Plan. The City shall not unreasonably withhold or delay its review of the Public Park Master Plan/Phasing Plan. If the City conditionally approved or rejects the proposed Public Park Master Plan/Phasing Plan based on this Section 3.21.1(b), the City must provide the Developer with its reasons with specificity and in writing. The Public Park Master Plan/Phasing Plan must be approved prior to the City's approval of the first Subsequent Project Approval that includes residential units. (c) Pedestrian Bridge Plan. Concurrent with the first application for a Subsequent Project Approval that includes residential units, the Developer shall submit to the City a conceptual plan for the Pedestrian Bridge which describes (i) the location. (ii) construction schedule, and (iii) design to allow the City to determine, in its reasonable discretion and consistent with the requirements of this Agreement, that the location, timing and quality of the Pedestrian Bridge will be consistent with the Project. The City will consider the economic feasibility and costs of constructing the Pedestrian Bridge relative to the build out of the rest of the Project when reviewing and determining the timing of the construction of the Pedestrian Bridge. (d) Paloma Wash Flood Channel. The Developer shall receive credit, on an acre - for acre -basis, for the Sports Field Uses in the Paloma Wash Flood Channel (not including the low - flow channel or the side slopes) toward the Park Obligation, so long as the Developer does all of the following to the City's reasonable satisfaction, consistent with the approved Public Park Master Plan/Phasing Plan and this Agreement: (1) designs and installs Sports Field Uses within the Paloma Wash Flood Channel; (2) designs and installs shared restroom facilities within the Central Park Site; and (3) designs and installs code compliant access road(s) to access the Sports Field Uses; and (4) demonstrates that there are sufficient shared parking facilities within an appropriate radius of the access point to the Sport Field Uses within the Project (which may include any parking on the Civic Center Site, when and if such sites developed by the City), to support the Sports Field Uses, or constructs such parking facilities to the extent shared parking spaces are not available at the time of dedication. Any parking space provided for the Sports Fields may be used for shared parking with uses constructed after any such dedication within the appropriate radius. 22 DOCSOG 1455134v9/200299-0001 The Parties understand and agree that under the terms of the Cooperative Agreement, the Sports Field Uses may only be allowed under the terms of a license agreement approved by RCFCD, only in the Stage 2 Channel, and will not be allowed to have any permanent above -ground structures (such as lighting, restroom facilities, etc.) within the Paloma Wash Flood Channel. Under the Cooperative Agreement, the license agreement with RCFDC will require the City to provide for future maintenance, and an indemnity to RCFCD. The City and Developer shall cooperate in negotiating with RCDCD to reach a formal license agreement to allow for the installation, use and maintenance of the Sports Field Uses in the Paloma Wash Flood Channel. In the event RCFCD does not allow any Sports Field Uses in the Paloma Wash Flood Channel, the Developer shall accommodate the Public Park Obligation within the Project Site. In the event, less than the maximum ten (10) acres is provided in the Paloma Wash Flood Channel, the Developer shall accommodate any difference to meet the Public Park Obligation within the Project Site. In no event shall the Developer provide less than the Central Park Site (five (5) acres) within the Project Site. In no event shall the Developer be required to provide more than the Public Park Obligation based on the actual number and type of residential units with within the Project, although the Developer may do so, at its option and in its sole discretion. For examples only: (i) 1�' 5 acres of Sports Field Uses were provided in the Paloma Wash Flood Channel, and the Public Park Obligation based on the number and t}pe of residential units within the Project totaled 14 acres, 9 acres of Public Park would be required within the Project Site; or (ii) If 8 acres of Sport Field Uses were provided in the Paloma Wash Flood Channel, and the Public Park Obligation based on the number and type of residential units in the Project totaled 14 acres, 6 acres of Public Park would be required within Project Site; or (iii) If 8 acres of Sport Field Uses were provided in the Paloma Wash Flood Channel, and the Public Park Obligation based on the number and type of residential units in the Project totaled 12 acres, the minimum requirement of 5 acres of Public Park would be provided within Project Site. (e) Park Site and Pedestrian Bridge Maintenance. Upon dedication of any Public Park and/or the Pedestrian Bridge, the City shall be responsible for the maintenance of such Public Park and/or the Pedestrian Bridge. ARTICLE 4. UTILITIES 4.1 Project Improvements. 4.1.1 Construction of Private Improvements. Developer shall, at its own expense, in accordance with the Applicable City Regulations, construct, and maintain any and all improvements on the Property, including all infrastructure that is necessary to serve the Project, that are not and will not be offered for dedication to the City for ownership, operation and maintenance ("Private Improvements"). 4.1.2 Construction of Public Improvements. Developer shall, in accordance with the Applicable City Regulations, construct the water, sewer or street improvements necessary to serve the portion of the Project being developed. These improvements are to be offered for dedication to the City for ownership, operation and maintenance consistent with the Applicable City 23 DOCS00 1455134 v9/200299-0001 Regulations ("Public Improvements"). To the extent any Public Improvements will provide a material benefit to another landowner, the City and Developer shall establish the Developer's share of such improvements and identify any potential benefited owners and pursuant to Section 4.1.4 of this Agreement, shall enter into a Reimbursement Agreement. 4.1.3 Districts. The City and the Developer agree that the construction of the Public Improvements may be financed by a District or Districts which could encompass the Property and, to the extent other owners outside the Specific Plan are interested or benefit and are made part of such District in accordance with all applicable law, such other lands. The City agrees, at any DeveIoper's request and subject to all applicable law and prudent underwriting standards, to cause a District(s) to be formed, in accordance with the procedures governing the creation of a District, to finance some or all of the Public Improvements. If the Developer requests formation of a District, the Developer will be deemed to have consented to formation of such District(s), to the assessments or taxes ratably allocated to the Property by the District(s), and to having the Property included within the District(s). The Developer agrees to cooperate in the City's formation of the District or Districts and in the performance by the District(s) of its responsibilities. The City and Developer agrees that, unless the City and the Developer agree otherwise, the assessments or special taxes for any District formed will be collected from any parcels only after such parcel has at least received approval of a Tentative Map, and then only to the extent of the number of residential or commercial lots included in such Tentative Map. 4.1.4 Reimbursement Agreement. The City shall enter into a reimbursement agreement with the Developer, in a form acceptable to the City Attorney, that provides for the City to require any future developer whose property is benefited by the Paloma Wash Flood Channel and/or the Traffic Signalization Improvements ("Benefited Owner") to reimburse the Developer its share of the actual and reasonable costs of construction of such improvements prior to recordation of a final map on the Benefited Owner's property for reimbursement by the City to the Developer ("Reimbursement Agreement"). In entering the Reimbursement Agreement, the City makes no warranty or representation to Developer with regard to City's entitlement or ability to obtain any payments for any portion of the Paloma Wash Flood Channel and/or the Traffic Signalization Improvements, but City agrees to exercise reasonable diligence in an effort to cause the Benefited Owner(s) to pay its or their fair share portion(s) of the expense prior to issuance of the first building permit for its or their development(s) and, to the extent that City does obtain such payments, it will apply the same to reimburse Developer. City's obligation to reimburse Developer shall be a special and not a general obligation of City, payable from the sole source of fees collected from the Benefited Landowner(s) that are allocable to the reimbursement of the Paloma Wash Flood Channel and/or the Traffic Signalization Improvements. Reimbursement payments shall be made within a reasonable time after City receipt of the fees from the Benefited Owner(s), and said payments shall continue to be made until the date that Developer has been fully paid the amount due hereunder (excluding the amount determined by the City Engineer to be Developer's fair share of the cost) or the Parties determine that there are no other potential Benefited Owners. 4.2 Acceptance of Public Improvements and Certificate of Satisfaction. Developer's obligations with respect to construction of all Public improvements, including performance and labor and materials security and warranty obligations, and City's obligations with respect to acceptance thereof, shall be set forth in a Public Improvements agreement in a form reasonably acceptable to the City Attorney. Within sixty (60) days after the Developer's written request, which may be made at any time following acceptance of a Public Improvement by the City pursuant to such public 24 DOCSOC/1455134v9/200299-0001 improvements agreement, the City shall issue a certificate of satisfaction evidencing the satisfaction of the applicable Public Improvement obligation. 4.3 Infrastructure Easements and Rights of Way. The City and Developer shall cooperate in connection with any arrangements for granting, abandoning or relocating existing, or creating any new, utility or other easements, facilities, property rights or rights of way (collectively, "ROW"), necessary to effectuate the development of Public Improvements to implement the Specific Plan; and if any such ROW is owned by the Developer, the City, or an agency of the City, then the Developer, the City or such agency of the City shall, at the request of the Developer, subject to the rights of any third Person with respect thereto, take such actions and execute such documents as may be necessary to grant, abandon, relocate and/or revest such ROW, as necessary in connection with the development Public Improvements to implement the Specific Plan. The Developer requesting such cooperation from the City shall reimburse the City for all costs and expenses incurred by the City in connection with this Section 4.3. Any requested abandonment or relocation of a ROW pursuant to this Section 4.3 shall provide that any rights and/or benefits under such existing ROW shall be substantially and adequately replaced by any new ROW and/or the resulting Public Infrastructure (including, if necessary, any interim rights pending completion of the resulting Public Infrastructure). 4.4 1-215/Newport Road Interchange Project. Except as provided in this Section 4.4, the Developer's funding obligation related to funding the I-215/Newport Road Interchange Project shall be limited to the payment of Impact Fees, including fees paid under the TUMF Program. The Parties desire that the 1-215/Newport Interchange Project be completed as early as possible. (a) The City shall work with WRCOG to permit use of TUMF fees generated by the Project to be used for the 1-215/Newport Interchange Project and other regional transportation improvements that serve the Project. The Developer acknowledges that the City does not have the authority to direct the WRCOG or TUMF Program. (b) In addition, the City agrees to consider causing a District to be formed, in accordance with the procedures governing the creation of a District, to finance the gap in funding for the 1-215/Newport Interchange ("I-215/Newport Road Interchange District"). The 1-215/Newport Road Interchange District shall include any new commercial and residential development within as broad an area within the City of Menifee as allowed under applicable law. So long as similarly situated properties and development are included in the 1-215/Newport Road Interchange District, the Developer agrees to consent to the formation of I-2151Newport Road Interchange District, to the assessments or taxes ratably allocated to the Property by the I-215/Newport Road Interchange District, and to having the Property included within the 1-215/Newport Road Interchange District. The City and the Developer agree to cooperate and use best efforts to assist in the City's formation of the 1-215/Newport Road Interchange District and in the performance of its responsibilities on behalf of the City. The City and Developer agrees that, unless the City and the Developer agree otherwise, the assessments or special taxes for the 1-215/Newport Road Interchange District will collected from any parcels only after such parcel has at least received approval of a Tentative Map, and then only to the extent of the number of residential or commercial lots included in such Tentative Map. ARTICLE 5. AMENDMENTS & SUBSEQUENT PROJECT APPROVALS 5.1 Amendment. Except as expressly provided in Section 5.2 below, this Agreement may be amended only by mutual written consent of all of the Parties hereto or their successors-in- 25 DOCSOC/ 1455134v9/200299-0001 interest or assignees. Any amendment to this Agreement shall comply with the process requirements of the Development Agreement Law and shall be recorded in the Official Records. 5.2 Modifications Delegated to the City Manager. The City Manager is delegated the authority to make the modifications to this Agreement expressly provided in Sections 5.2.1, 5.2.2 and 5.2.3 below. 5.2.1 Clerical and Conforming Revisions. The City Manager is authorized to correct typographical errors, references to draft documents, statutes, ordinances, page numbers, maps, and make similar clerical and conforming changes to this Agreement, the Specific Plan, or to any of the documents contemplated herein. If the City Manager elects to record any revised version of a previously -recorded document contemplated by this Agreement in order to reflect any clerical and conforming changes: (i) City Manager shall provide Developer with thirty (30) days written notice of intent to record the revised document; (ii) the Parties agree that after thirty (30) days notice City Manager may record the revised document; and (iii) the Parties agree that the date upon which the original version of the document was recorded shall remain and be deemed to be that document's date of recordation. 5.2.2 Incorporation and Identification of Subsequent Project Approvals. The City Manager is authorized to, upon request by Developer or at his or her discretion, execute and record in the Official Records a Notice of Subsequent Project Approval. 5.2.3 Administrative Adjustments. The City Manager is authorized, in his or her discretion, to enter into Administrative Adjustments as defined herein. Any amendment to this Agreement which in the context of the overall Project contemplated by this Agreement, that does not substantially affect (i) the Term of this Agreement; (ii) Permitted Uses of the Property; (iii) provisions for the reservation, dedication or conveyance of land; (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions; (v) the density or intensity of the use of the Property or the maximum height or size of proposed buildings; (vi) monetary contributions by Developer shall be deemed a "Minor Amendment" and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. The following modifications to the Project will constitute Minor Amendments: (a) changes in landscaping; (b) variations in the location of strictures that do not substantially alter the design concepts of the Specific Plan; (c) variations in the location of utilities or other infrastructure connections or facilities not materially affecting design concepts; (d) minor adjustments to the Tentative Map, Final Map or Property legal description; (e) minor variations in the open space configurations that do not reduce the overall size of the Central Park Site, Courthouse Site, or and Civic Center Site; and (f) similar modifications as approved by the City Manager. The City Manager shall have the authority to execute a Minor Amendment or, in his or her discretion, seek approval of a Minor Amendment by City resolution. 5.3 City Processing of Subsequent Project Approvals. The City and Developer agree that Developer must be able to proceed efficiently with the development of the Property and that, accordingly, an efficient City review and Iand development and construction inspection process is necessary. Accordingly, the City agrees that upon submission by any Developer of all appropriate applications and processing fees, City shall, to the full extent allowed by law, promptly and diligently, subject to Applicable Law, use all good faith efforts to commence and complete all steps necessary to act on any the Developer's currently pending applications for Subsequent Project Approvals, including: (i) providing at a requesting Developer's expense reasonable overtime staff 26 DOCSOC/1455134v9/200299-0001 assistance and Consultants pursuant to Section 3.11 for expedited planning and processing of each pending application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on any such pending application. All Subsequent Project Approvals shall be deemed incorporated herein and vested as of the effective date of such approvals and shall be governed by the terms and conditions of this Agreement. 5.4 CEQA. The Parties acknowledge and agree that the mitigation measures identified in the EIR, as applicable, will be applied to each portion of the Project as enforceable conditions of approval. The Parties understand that the EIR is intended to be used not only in connection with the Existing Approvals, but also in connection with necessary Subsequent Project Approvals. However, the Parties acknowledge that, depending on the scope of the project described in any Developer's application(s), certain discretionary Subsequent Project Approvals may legally require additional analysis under CEQA. Notwithstanding any other provision of this Agreement, nothing contained herein is intended to limit or restrict the discretion of the City to comply with CEQA. However, the City shall not undertake additional environmental review nor impose new or additional mitigation measures on the Project except as required by Applicable Law. To the extent supplemental or additional review is required in connection with Subsequent Project Approvals, Developer acknowledges that City may require additional mitigation measures necessary to mitigate significant impacts that were not foreseen at the time this Agreement was executed. ARTICLE 6. DISPUTES, DEFAULT, REMI EDIES 6.1 Default. 6.1.1 Remedies In General. Citv and Developer agree that, following notice and expiration of any applicable cure periods, in the event of Default by City, the Parties intend that the sole remedy for Developer shall be specific performance of this Agreement. In no event shall any Party be entitled to any consequential, punitive or special damages. In the event of any Default by the Developer hereunder, City, following notice and expiration of any applicable cure periods, shall be entitled, in addition to its other rights and remedies specified herein, to pursue any remedies available at law or in equity, including recovery of actual damages from the defaulting Developer. 6.1.2 Cure Period. Subject to extensions of time by mutual consent in writing of the Parties and the provisions of Section 2.2.1 herein, breach of, failure, or delay by the City or Developer to perform any term or condition of this Agreement shall constitute a Default ("Default"). In the event of any alleged Default of any tern, condition, or obligation of this Agreement, the party alleging such Default shall give the defaulting party notice in writing specifying the nature of the alleged Default and the manner in which such Default may be satisfactorily cured ("Notice of Breach"). The defaulting party (City or Developer) shall cure the Default within forty-five (45) days following receipt of the Notice of Breach, provided, however, if the nature of the alleged Default is such that it cannot reasonably be cured within such forty-five (45) day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure, provided that if the cure is not diligently prosecuted to completion, then no additional cure period shall be provided. If the alleged failure is cured within the time provided above, then no Default shall exist and the noticing party shall take no further action to exercise any remedies available hereunder. If the alleged failure is not cured, then a Default shall exist under this Agreement and the non -defaulting party having alleged Default may exercise any of the remedies available under Section 6.1.3 or Section 6.1.4. 27 DOCSOC/ 1455134v9/200299-0001 6.1.3 Procedure for Default by Developer. If Developer is alleged to be in Default hereunder, then after notice and expiration of the cure period specified in Section 6.1.2 above, the City may institute legal proceedings against the Developer pursuant to this Agreement, and/or give notice of intent to terminate or modify this Agreement as to the Developer pursuant to California Government Code section 65868. Following notice of intent to terminate or modify this Agreement as provided above, the matter shall be scheduled for consideration and review in the manner set forth in Government Code sections 65865, 65867 and 65868 by the City Council within thirty (30) calendar days following the date of delivery of such notice (the "Default Hearing"). Following the consideration of the evidence presented in such review before the City Council and a determination, based on substantial evidence, by a majority vote of the City Council that a Default by Developer has occurred, the City may give written notice of termination of this Agreement to Defaulting Developer, and this Agreement shall be deemed modified or terminated as to the Defaulting Developer and the Defaulting Developer's portion of the Property only as of the date of delivery of such notice; provided, however, that, if such termination or modification occurs because of a Default of Defaulting Developer hereunder after this Agreement has been assigned so that it applies to more than one entity as "Developer" then such termination or modification shall relate only to that specific portion of the Property as may then be owned by the Defaulting Developer that committed a Default hereunder and not to an), other portion of the Property owned by a different entity. This Section 6.1.3 shall not be interpreted to constitute a waiver of section 65865.1 of the Government Code, but merely to provide an element of the procedure by which the Parties may take the actions set forth in section 65865.1. 6.1.4 Procedure for Default by the City. If the City is alleged by Developer to be in Default under this Agreement, then after notice and expiration of the cure period specified in Section 6.1.2 above, the Developer may enforce the terms of this Agreement by an action at law or in equity, subject to the limitations of Section 6.1.1 and compliance with federal and state law. 6.1.5 Annual Review. Evidence of Default may also arise in the course of the regularly scheduled annual review of this Agreement pursuant to California Government Code section 65865.1 as described in Section 6.2. herein. If any Party alleges that another Party is in Default following the completion of the normally scheduled annual review, such Party may then give the other a written Notice of Breach, in which event the provisions of this Section 6.1 shall apply. In addition, the regularly scheduled annual review of this Agreement may, following compliance with the requirements of Section 6.1.2, serve as the Default Hearing for any alleged Default by Developer as described in Section 6.1.3. herein. 6.2 Annual Review. 6.2.1 Timing and Scope of Annual Review. At least once every twelve (12) month period from the Effective Date, City shall review the good faith compliance of Developer with the terms of this Agreement (the "Annual Review"). The Annual Review shall be conducted by the City Council or its designee in accordance with the Development Agreement Rules, as the same may be amended from time to time, including the submission of a completed Annual Review Form in the form provided in Exhibit D and such other information as may be requested by the City Manager. The Annual Review shall be limited in scope to the determination of Developer's compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1; provided, however, that if the City Council imposes a mitigation monitoring or reporting program pursuant to CEQA which is to be completed simultaneously with the Annual Review of this Agreement, then the scope of the Annual Review may include implementation of mitigation measures pursuant to CEQA, 28 D005OC/ I455134v9/200299-0001 except that compliance with mitigation measures shall not be deemed to be an obligation of any Party pursuant to this Agreement solely or partly because mitigation monitoring is conducted simultaneously with review of this Agreement. 6.2.2 Standards for Annual Review. During the Annual Review, Developer shall be required to demonstrate good faith compliance with the terms of this Agreement. At the conclusion of the Annual Review, the City Council or its designee shall make a written determination, on the basis of substantial evidence, whether or not Developer has complied in good faith with the terms and conditions of this Agreement. The decision of any designee of the City Council shall be appealable to the City Council. If the City finds and determines that Developer has not complied with the terms and conditions of this Agreement, then the City may declare a default by Developer in accordance with Article 6 herein. The costs incurred by the City in connection with the Annual Review process shall be paid by Developer. 6.2.3 Evidence for Annual Review. The City, upon request by Developer, shall provide Developer a copy of any final public staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, prior to any such review. Developer shall be permitted an opportunity to respond to a City's evaluation of its performance, either orally at a public hearing or in a written statement, at Developer's election. 6.2.4 Certificate of Compliance. With respect to each year in which a Public Agency Party approves Developer's compliance with this Agreement, the Public Agency Party shall, upon written request by Developer, provide Developer with a written certificate of good faith compliance within thirty (30) days of the Public Agency Party's receipt of Developer's request for same. 6.2.5 Failure to Conduct Annual Review. Failure of City to conduct an annual review shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of this Agreement nor shall the Developer have or assert any defense to such enforcement due to any such failure to conduct an annual review. Failure of the City to conduct an annual review shall not cause the Developer to be in Default under this Agreement, but it does not relieve the obligation of the Developer to submit the Annual Review form annually as required by Section 6.2.1. 6.3 Legal Actions. 6.3.1 By a Party. In addition to any other rights or remedies, any Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with the purpose of this Agreement except as limited herein. Any such legal action shall be brought in the Superior Court for Riverside County, California. 6.3.2 Third Party Claims. City and Developer, at Developer's sole cost and expense, shall cooperate in the event of any court action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, any Existing Approvals or any Subsequent Project Approvals and City shall, upon Developer's request, appear in the action and defend its decision, except that City shall not be required to be an advocate for the Developer. To the extent the Developer elects to contest or defend such litigation challenges or requests that City cooperate in those defense efforts, the Developer shall reimburse City, within 29 DOCSOC/ 1455134v9/200299-0001 ten (10) business days following City's written demand therefore, which may be made from .time to time during the course of such litigation, all costs incurred by City in connection with the litigation challenge, including City's administrative, legal and court costs, provided that City shall either: (a) elect to joint representation by Developer's counsel; or (b) retain an experienced litigation attorney, require such attorney to prepare and comply with a litigation budget, and present such litigation budget to Developer, for information purposes and not as a cap, prior to incurring obligations to pay legal fees in excess of Thirty Thousand Dollars ($30,000). If the Developer defends any such legal challenge, the Developer shall indemnify, defend, and hold harmless City and its officials and employees from and against any claims assessed or awarded against City by way of judgment, settlement, or stipulation. Nothing herein shall authorize Developer to settle such legal challenge on terms that would constitute an amendment or modification of this Agreement, any Existing Approvals or any Subsequent Project Approvals, unless such amendment or modification is approved by City in accordance with applicable legal requirements, and City reserves its full legislative discretion with respect thereto. In addition, City shall have the right, but not the obligation, to contest or defend such litigation challenges at its own expense, in the event that the Developer elects not to do so. 6.4 Indemnification. Developer shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City and City Parties from and against any and all actions, suits, claims, costs, liabilities, penalties, and damages (including but not limited to attorneys' fees and costs) (collectively, "Claims"), including Claims for any bodily injury, death, or property damage, arising or resulting directly or indirectly from the approval or implementation of this Agreement, the development or construction of the Project or any portion thereof by or on behalf of the Developer, Developer's failure to maintain insurance as required by this Agreement, and/or from any acts, omissions, negligence or willful misconduct of the Developer, whether such acts, omissions, negligence or willful misconduct are by the Developer or any of the Developer's contractors, subcontractors, agents or employees. The foregoing indemnity shall not apply to any Claims arising or resulting solely from the active negligence or willful misconduct of City or City Parties. 6.5 Dispute Resolution. As an alternative procedure, in an action by the City against Developer or in an action by the Developer against the City hereunder, the Parties each in its own sole and absolute discretion may mutually agree that the action be heard by a referee pursuant to Code of Civil Procedure section 638 el seq. If the Parties do so agree in their sole discretion, they shall use their best efforts to agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before him or her. If the Developer and City are unable to agree upon a referee within ten (10) days of a written request to do so by either Party, the Parties, each in its sole discretion, may mutually elect to have a referee appointed pursuant to section 640 of the Code of Civil Procedure. The cost of such proceeding (exclusive of the attorney's fees and cost of the Parties) shall be borne equally by the Parties. Any referee selected pursuant to this Section 6.5 shall be considered a temporary judge appointed pursuant to Article 6, section 21 of the California Constitution. In the event that an alternative method of resolving disputes concerning the application, enforcement or interpretation of a development agreement is provided by legislative or judicial action after the Effective Date; the Parties may, by mutual agreement, select such alternative method. Notwithstanding the foregoing, alternative dispute resolution, as described in this Section 6.5, is an optional remedy under this Agreement and where a Party asserting an action wishes to do so, that Party may bring a legal action as set forth in Section 6.3 without first engaging in alternative dispute resolution. Likewise, the Party against whom the action is asserted shall be under 30 DOCSO C/ 1455134v9/200299-0001 no obligation to have such action heard by a referee or to seek resolution of the action through any other alternative dispute resolution described above. 6.6 Termination of Agreement. This Agreement is terminable: (i) by mutual written consent of the Parties, or (ii) by any Party following an uncured Default by another Party guider this Agreement, subject to the procedures and limitations set forth in this Agreement. Any obligations of indemnification and defense relating to matters arising before termination of this Agreement, by expiration of its Term or otherwise, shall survive termination of this Agreement. Except as otherwise set forth in this Agreement, if this Agreement is terminated by mutual written consent of the Parties, no Party shall have any further rights or obligations under this Agreement. Both Parties waive, with respect to termination of this Agreement by mutual written consent of the Parties, any claims for damages arising out of the termination of this Agreement. Nothing herein contained shall release or excuse Developer in the performance of its obligations to indemnify and defend the City as provided in this Agreement. Upon termination of this Development Agreement, a written statement acknowledging such termination shall be recorded by City in the Official Records. ARTICLE 7. ASSIGNMENTS 7.1 Subsequent Development Agreements. Consistent with all requirements of the Development Agreement Law, a subsequent Development Agreement may be entered into at any time, including at such time as the Developer's Subsequent Project Approvals have been granted. 7.2 Complete Assignment. Developer shall provide the City with written notice of any proposed assignment of all or any portion of the Developer's rights or obligations hereunder (each, an "Assignment") at least ten (10) business days prior to such Assignment. Each such notice of proposed Assignment shall be accompanied by evidence of assignee's assumption of the assigning Developer's obligations hereunder in the form of Exhibit C, and upon the City's receipt of the fully executed assignment and assumption agreement, the assigning Developer's liability shall terminate as to the obligations assigned. 7.3 Partial Assignment to Purchasers. Developer may assign fewer than all of its rights and obligations under this Agreement to those entities that acquire less than the entirety of that portion of the Property owned by the assigning Developer. The Developer will be released from its obligations under this Agreement with respect to such Assignment, subject to the following: (i) the assigning Developer shall have given the City at least ten (10) business days prior written notice of the Assignment, which shall include the name and address for notice purposes; (ii) the assignee, pursuant to an assignment and assumption agreement substantially in the form of Exhibit C, shall have agreed in writing to be subject to all of the applicable provisions of this Agreement, and such assignment agreement shall provide for the allocation of responsibilities and obligations between the assigning Developer and the assignee; and (iii) such assignment agreement shall be recorded in the Official Records on that portion of the Property owner by such assignee. Additionally, subject to requirements regarding prior notice to City and the form of written assignment assumption provided in this Section 7.3, one Developer may freely assign its rights and duties under this Agreement to another Developer who acquires the Property of the assigning Developer. 7.4 Assignment to Master Property, Owners' Association. The City and Developer agree that any of the Developer's on -going ownership, operation and maintenance obligations with respect to private streets, common areas, open space, and other onsite public improvements described in the Project Approvals may be assigned to one or more Master Property Owners' Association(s) to be 31 DOCSOC/ 1455134v9/200299-0001 established by the Developer; provided, however, that such on -going obligations shall be documented in recorded conditions, covenants and restrictions in a form reasonably acceptable to the City and approved by City and further provided that such assignment to a Master Property Owner's Association shall be accompanied by evidence that such assignee has the capacity and financial ability to assume and commitment to perform the Developer's obligations hereunder. 7.5 Assignment to Financial Institutions. Notwithstanding any other provisions of this Agreement, the Developer may collaterally assign all or any part of its rights and duties under this Agreement to any financial institution from which any Developer has borrowed funds for use in constructing the improvements contemplated in this Agreement or otherwise developing the Property. The assigning Developer shall provide a complete copy of any such financing assignment to City within Fourteen (14) days following execution thereof. Assignments pursuant to this Section 7.5 shall not require the City's consent. 7.6 Assumption of Assigned Obligations; Release of Assignor. Subject to the provisions and conditions of Section 7.5 and this Section 7.6, upon the Assignment of any or all of the rights, duties, obligations or interests under this Agreement or other of the Project Approvals and receipt by City of the fully executed assignment and assumption agreement as provided for herein, the assignor (e.g., Developer) shall be released from those obligations under this Agreement and the Project Approvals that are specified in the assumption agreement as having been assigned to and assumed by the assignee. Upon providing such assignment and assumption agreement to the City, (i) any Default by an assignee of any rights, duties, obligations or interests so assigned and assumed by the assignee shall not thereby constitute a Default by the assignor with respect to the rights, duties, obligations or interests not assigned and (ii) any Default by the assignor of any rights, duties, obligations or interests not so assigned shall not thereby constitute a Default by the assignee with respect to the rights, duties, obligations or interests so assigned and assumed. The Parties to the assignment and assumption agreement shall address in detail whether and how each obligation and right set forth in this Agreement and in the other Project Approvals shall be divided, allocated, assigned or otherwise assigned, in whole or in part, among the assignor and assignee; if requested by an assignor and assignee, City agrees to assist the assignor and assignee (including attendance at meetings), at assignor's expense, in determining how each obligation and right set forth in this Agreement and the other Project Approvals can be described and allocated in the assignment and assumption agreement so as to avoid confusion later regarding what obligations and rights have and have not been assigned. The assignment and assumption shall be in the form attached as Exhibit C and shall be recorded on the portion of the Property to which the assignment applies. 7.7 Successive Assi nment. In the event there is more than one Assignment under the provisions of this Article 7, the provisions of this Article 7 shall apply to each successive Assignment and Assignee. 7.8 Excluded Transfers. Notwithstanding the foregoing, the provisions of this Agreement shall terminate with respect to any individual lot and such lot shall be released from and shall no longer be subject to this Agreement (without the execution or recordation of any further document or the taking of any further action) upon the satisfaction of all of the following conditions ("Excluded Transfers"): 32 DOCSOC/ 145513 4v9/200299-0001 (a) the lot has been finally subdivided and sold or leased (for a period longer than one (1) year) to a member of the public or any other ultimate user, and (b) a certificate of occupancy has been issued for the building or buildings on the lot or a final inspection of the building(s) has been approved by City. The City shall cooperate with Developer, at no cost to the City, in executing in recordable form any document that Developer (including any successor to the title of Developer in and to any of the aforedescribed lots) may submit to confirm the termination of this Agreement as to any such lot. As to such Excluded Transfers, this Agreement shall not run with the land, but shall be automatically terminated. ARTICLE 8. GENERAL PROVISIONS 8.1 Compliance With Laws. Developer, at its sole cost and expense, shall comply with the requirements of, and obtain all permits and approvals required by local, State and Federal agencies having jurisdiction over the Project. Furthermore, the Developer shall carry out the Project work in conformity with all Applicable Law and applicable state or federal labor laws and standards; applicable building, plumbing, mechanical and electrical codes; and all applicable disabled and handicapped access requirements, including as applicable the Americans With Disabilities Act, 42 U.S.C. section 12101, et seq., Government Code section 4450, et seq., Government Code section 11 135, et seq., and the Unruh Civil Rights Act, Civil Code section 51, et seq. 8.2 Mortgagee Protection. 8.2.1 Mortgagee Protected. This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording this Agreement, including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any person or entity, including any deed or trust beneficiary or mortgagee ("Mortgagee"), who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee's sate, deed in lieu of foreclosure or otherwise. Developer shall have the right, at any time and from time to time, to grant one or more Mortgages encumbering all or a portion of Developer's interest in the Property or portion thereof as security fbr one or more loans. City acknowledges that the lenders providing such financing may require certain Agreement interpretations and upon request, from time to time, City shall meet with Developer and representatives of such lenders to consider any such request for interpretation. City shall not unreasonably withhold its consent to any such requested interpretation provided such interpretation is consistent with the intent and purposes of this Agreement. Developer shall provide the City with a copy of the deed of trust or mortgage within ten (10) days after its recording in the Official Records; provided, however, that the Developer's failure to provide such document shall not affect any Mortgage, including without limitation, the validity, priority or enforceability of such Mortgage. 8.2.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 8.2.1 above, no Mortgagee (including one who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, eviction or otherwise) shall have any obligation to construct or complete construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled 33 DOCSOC/ 1455134 v9/200299-0001 to devote the Property to any use except in frill compliance with this Agreement and the other Project Approvals nor to construct any improvements thereon or institute any uses other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals. Except as otherwise provided in this Section 8.2.2 and Section 7.8, all of the terms and conditions contained in this Agreement and the other Project Approvals shall be binding upon and effective against and shall run to the benefit of any person or entity, including any Mortgagee, who acquires title or possession to the Property, or any portion thereof. Notwithstanding the foregoing, no mortgage shall encumber the Civic Center Site. As to the Courthouse Site, no mortgage shall encumber the Court House Site unless and until the requirements of this Agreement with respect to such site have been terminated. 8.2.3 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee requesting a copy of any Notice of Default given to Developer hereunder and specifying the address for service thereof, then City agrees to use its diligent, good faith efforts to deliver to such Mortgagee, concurrently with service thereon to the Developer, any Notice of Default given to Developer. Each Mortgagee shall have the right during the same period available to the Developer to cure or remedy, or to commence to cure or remedy, the event of Default claimed or the areas of noncompliance set forth in City's Notice of Default. If a Mortgagee is required to obtain possession in order to cure any Default, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure but in no event may this period exceed one hundred twenty (120) days from the City's Notice of Default. 8.2.4 No Supersedure. Nothing in this Section 8.2 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee's obligations under any subdivision or public improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this Section 8.2 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 8.5. 8.3 Amendments to Agreement. The Parties agree that they will make reasonable amendments to this Agreement, at the expense of the Developer, to meet the reasonable requirements of any lender or mortgagee for the Project. For the purposes of this Section, a reasonable amendment is one that does not relieve the Developer of any of its material obligations under this Agreement nor impair the ability of the City to enforce the terms of this Agreement. 8.4 Covenants Binding on Successors and Assigns and Run with Land. Except as otherwise more specifically provided in this Agreement, including but not limited to the exceptions described in Section 7.8, this Agreement and all of its provisions, agreements, rights, powers, standards, terms, covenants and obligations, shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities acquiring the Property, or any interest therein, and shall inure to the benefit of the Parties and their respective successors (by merger, consolidation or otherwise) and assigns, as provided in Government Code section 65868.5. 8.5 Notice. Any notice, demand or request, which may be permitted, required or desired to be given in connection herewith, shall be given in writing and directed to the City and Developer as follows: 34 DOCSOC/ 1455134v9/200299-0001 If to the City: City of Menifee 29714 Haun Road Menifee, CA 92586 Attn: City Manager Telephone: (951) 672-6777 Facsimile: (951) 679-3843 With a copies to: City of Menifee 29714 Haun Road Menifee, CA 92586 Attn: City Attorney Telephone: (951) 672-6777 Facsimile: (951) 679-3843 Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660-6422 Attn: Thomas P. Clark, Jr. Telephone: (949) 725-4040 Facsimile: (949) 823-5140 If to Developer: Stark Menifee Land, LLC c/o Stark Investments 3600 S. Lake Drive St. Francis, Wisconsin 53235 Attn: Linda Gorens-Levy Telephone: (414) 294-7550 Facsimile: (414) 294-7650 With copies to: Regent Properties 11990 San Vicente Blvd. Suite 200 Los Angeles, CA 90049 Attn: Jeff Dinkin Telephone: (310) 806-8888 Facsimile: (310) 806-9801 Holland & Knight LLP 50 California Street, Suite 2800 San Francisco, CA 94109 Attention: Tarnsen Plume Telephone: (415) 743-6941 Facsimile: (415) 743-6910 Notices to be deemed effective if delivered by certified mail, return receipt requested, commercial courier or by facsimile, with delivery to be effective upon verification of receipt, except as to facsimile if confirmation is after 5:00 p.m., then deemed received the following business day. Any Party may change its respective address for notices by providing written notice of such change to the other Parties. 35 DOCSOC/ 1455134v9/200299-0001 8.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. 8.7 Waivers. Notwithstanding any other provision in this Agreement, any failures or delays by either Party in asserting any of its or their rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies, or deprive any such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. A Party may specifically and expressly waive in writing any condition or breach of this Agreement by another Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. Consent by one Party to any act by another Party shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or similar acts in the future. 8.8 Construction of Agreement. Both Parties have been represented by counsel in the preparation and negotiation of this Agreement, and this Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; (e) "includes" and "including" are not limiting; and (f) "days" means calendar days unless specifically provided otherwise. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. 8.9 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a specific situation, is found by a court of competent jurisdiction to be invalid, or unenforceable, in whole or in part for any reason, the remaining terns and provisions of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provisions, in which case any Party may terminate this Agreement by providing written notice thereof to the other Party. 8.10 Time. Time is of the essence of this Agreement. All references to time in this Agreement shall refer to the time in effect in the State of California. 8.11 Extension of Time Limits. The time limits set forth in this Agreement may be extended by mutual consent in writing of the Parties in accordance with the provisions of this Agreement. 8.12 Signatures. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entity of Developer and the City. 8.13 Entire Agreement. This Agreement (including all recitals and exhibits attached hereto, each of which is fully incorporated herein by reference), integrates all of the terms and conditions mentioned herein or incidental hereto, and constitutes the entire understanding of the Parties with respect to the subject matter hereof, and all prior or contemporaneous oral agreements, understandings, representations and statements, and all prior written agreements, understandings, representations, and statements are terminated and superseded by this Agreement. 36 DOCSOC/ 1455134v9/200299-0001 8.14 Estoppel Certificate. The Developer may, at any time, and from time to time; deliver written notice to the City requesting the City to certify in writing that: (i) this Agreement is in full force and effect, (ii) this Agreement has not been amended or modified or, if so amended or modified, identifying the amendments or modifications, and (iii) the Developer requesting such certificate is not in Default of the performance of its obligations, or if in Default, to describe therein the nature and extent of any such Defaults. The City Manager shall be authorized to execute any certificate requested by Developer hereunder. The form of estoppel certificate shall be in a form reasonably acceptable to City Attorney. The City Manager shall execute and return such certificate within thirty (30) days following Developer's request therefore. Developer and City acknowledge that a certificate hereunder may be relied upon by tenants, transferees, investors, partners, bond counsel, underwriters, bond holders and Mortgagees. The request shall clearly indicate that failure of the City to respond within the thirty (30) day period will lead to a second and final request. Failure to respond to the second and final request within fifteen (15) days of receipt thereof shall be deemed approval of the estoppel certificate. 8.15 City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise by this Agreement or Applicable Law, or the context requires otherwise. 8.16 Negation of Partnership. The Parties specifically acknowledge that the Project is a private development, that no Party to this Agreement is acting as the agent of any other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between the Parties in the business of the Developer, the affairs of the City, or otherwise, or cause them to be considered joint venturers or members of any joint enterprise. 8.17 Exhibits. The following exhibits are attached to this Agreement and are hereby incorporated herein by this reference for all purposes as if set forth herein in full: Exhibit A Legal Description Exhibit B Applicable City Regulations Exhibit C Form Assignment and Assumption Agreement Exhibit D Annual Review Form Exhibit E Central Park Site, Civic Center Site and Courthouse Site Exhibit F Subsequent Terms 37 DOCSOC/ 1455134 v9/200299-0001 IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the date first written above. "CITY" CITY OF MENIFEE, a municipal corporation ; q�ll By: Mayor ATTEST: r City Clcrk APPROVED �I-S TO FO Thomas P. Clark, Jr Special Counsel to the ity of Menifee "DEVELOPER" STARK MENIFEE LAND, LLC, a Delaware limited liability company By: STARK OFFSHORE MANAGEMENT LLC Its: Manager �f By: 1 lignatoryIts: Ajithorize 38 DOCSOCI1455134v 9l200299-0001 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT L�G.�:�C�t`.��C.��43cG'..MYGK' ' Y-.c'Y..e�C',cG�..cht'�C` -,EG`,G�f'r:^:v'.M.GY'�:rr,rt�Ys�=�[•Mnn.n�.r,C��!`— �v.�.�+�.�.'\.ri�e G ��G �`� — -� � State of California J County of On 113111 before me, A4 Je� �rw 4)ub l l c D to Hero Insert Name pd True of the Officer personally appeared F��d ! 1-i'yinall Name(s) of Signer(s) �`cro.rfu„ we. u, tot2 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my ha►}d nd official sea Signature �i SI re ry Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(fes) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact El Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIO-HT HUMBPR�ItJTz OFiSIGNER Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s): _ CI Partner — ❑ Limited r-i General ❑ Attorney in Fact n Trustee G Guardian or Conservator ❑ Other: Signer Is Representing 02007NabonatNotary Association- 9350DeSolo Ave.,P.O.Box2402-Chatsworth, CA 91313.2402•www.NationalNotaryorg Itemi5907 Reorder. Cal Tok-Froo1-800-B76.6827 RE: Development Agreement by and between City of Menifee and Stark Menifee Land, LLC STATE OF Wisconsin ) COUNTY OF _Milwaukee On „Ir' '% /;_, beforeme, �_�%i / 1�� / Notary Public, personally appeared personally known tome (or-proved-to_rne-4u=the-basis o�satisfactory evidence) to be the person(g) whose name(g) is/a-re subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/herAheir signature,(s) on the instrument the person(s) or the entity upon behalf of which their person(s) acted; executed the instrument. WITNESS my hand and official seal. Signature My Commission Expires: January 12.2014 SONYA MARTINEZ Notary Public State of Wisconsin (seal) EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY PARCELS 1 THROUGH 12 INCLUSIVE OF PARCEL MAP 9504, AS SHOWN BY MAP ON FILE BOOK 67, PAGES 5 AND 6 PF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY CALIFORNIA (Tax parcel numbers: 360-080-001-0, 360-080-002-1, 360-080-003-2, 360-080-004-3, 360-080-005- 4, 360-080-006-5, 360-080-007-6, 360-080-008-7, 360-080-009-8, 360-110-001-2, 360-110-002-3, 360-130-001-4, 360-130-002-5) EXHIBIT A-1 TO DEVELOPMENT AGREEMENT D 0 CSOC/1455134v9/200299-0001 EXHIBIT "B" APPLICABLE CITY REGULATIONS Applicable City Regulations include, without limitation, (i) the Project Approvals, (ii) the Municipal Code, and all other City laws in effect on the Effective Date; and (iii) all those existing and approved permits, entitlements, agreements, and other grants of approval having force and effect on the Effective Date relating to the Project and Property, including without limitation their text, terms and conditions of approval. The Applicable City Regulations shall be compiled in accordance with Section 3.12 of this Agreement. EXHIBIT B-1 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001 EXHIBIT "C" FORM ASSIGNMENT AGREEMENT AND ASSUMPTION AGREEMENT RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) ) City of Menifee ) 29714 Haun Road ) Menifee, CA 92586 ) Attn: City Clerk ) (Space Above This Line for Recorder's Use Only) Exempt from Recording Fee per Government Code 527383 ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is entered into as of the day of , 20_, by and among a ("Assignor"), a ("Assignee"), and CITY OF MENIFEE, a ("City"). RECITALS [Developer] ("Developer") has entered into a Development Agreement with the City effective _ 2009 (Recorder's Document No. 20_-_) ("Development Agreement"), to facilitate the development of that certain real property owned by Developer within the City of Menifee, State of California, which is legally described in Exhibits to the Development Agreement and shown on the maps attached to the Development Agreement as Exhibits (collectively, "Property"). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Development Agreement. Assignor is the fee owner of the approximately acre portion of the Site designated as APN , more particularly described in Exhibit 1 attached hereto and incorporated herein ("Property"). Assignor desires to transfer its interest in the Property to Assignee concurrently with execution of this Agreement and Assignor desires to so acquire such interest in the Property from Assignor. Section 7.2 of the Development Agreement provides that Developer may assign its rights and obligations under the Development Agreement to another party, provided that the assigning Developer shall have provided to City at least ten (10) business days prior written notice and provided that the assignor and the assignee document the assignment in an agreement substantially in the form of this Agreement. EXHIBIT C-1 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134 v.9/200299-0001 Assignor has provided the required written notice to City of its intent to enter into an assignment and assumption agreement as required by Section 7.2. Assignor desires to assign to Assignee and Assignee desires to assume all rights and obligations of Assignor under the Development Agreement. Upon execution of this Agreement and transfer to Assignee of legal title to the Property, Assignor desires to be released from all obligations under the Development Agreement. AGREEMENT NOW, THEREFORE, Assignor, Assignee and City hereby agree as follows: 1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to Assignee, and its successors and assigns, all of Assignor's rights, title and interest and obligations, duties, responsibilities, conditions and restrictions under the Development Agreement (collectively, "Rights and Obligations"). 2. Acceptance and Assumption by Assignee. Assignee, for itself and its successors and assigns, hereby accepts such assignment and assumes all such Rights and Obligations, whether accruing before or on or after the Effective Date (defined in Section 16 below). Assignee agrees, expressly for the benefit of City, to comply with, perform and execute all of the covenants and obligations of [Insert name of Assignor entity] arising from or under the Development Agreement. 3. Release of Assia or. Assignee and City hereby fully release Assignor from all Rights and Obligations. Both Assignor and Assignee acknowledge that this Agreement is intended to ftilly assign all of Assignor's Rights and Obligations to Assignee, and it is expressly understood that Assignor shall not retain any Rights and Obligations whatsoever. 4. Substitution of Assignor. Assignee hereafter shall be substituted for and replace Assignor in the Development Agreement. Whenever the term " " [Insert defined name of Assignorj appears in the Development Agreement, it shall hereafter mean Assignee. Whenever the term "Developer" appears in the Development Agreement, it shall hereafter include Assignee. Assignor and Assignee Agreements, Indemnifications and Waivers. (a) Assignee represents and warrants to City as follows: (i) Assignee is a duly formed within and good standing under the laws of the State of . The copies of the documents evidencing the formation of Assignee, which have been delivered to City, are true and complete copies of the originals, as amended to the date of this Agreement. Assignee has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by Assignee has been fully authorized by all requisite actions on the part of Assignee. EXHIBIT C-2 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001 (ii) Assignee's execution, delivery and performance of its obligations tinder this Agreement will not constitute a default or a breach under any contract, agreement or order to which Assignee is a party or by which it is bound. (iii) Assignee has not (i) made a general assignment for the benefit of creditors. (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Assignee's creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Assignee's assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Assignee's assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally. (iv) As of the Effective Date of this Agreement, Assignee owns fee simple title to the Property. 6. Assignor and Assignee hereby acknowledge and agree that City has not made, and will not make, any representation or warranty that the assignment and assumption of the Development Agreement provided for hereunder will have any particular tax implications for Assignor or Assignee. (a) Assignor and Assignee each hereby waives and releases and each hereby agrees to indemnify and hold City harmless from any and all damages, liabilities, causes of action, claims or potential claims against City (including attorneys fees and costs) arising out of or resulting from the assignment and assumption of the Rights and Obligations. (b) Assignor acknowledges and agrees that the Rights and Obligations have been fully assigned to Assignee by this Agreement and, accordingly, that Assignee shall have the exclusive right to assert any claims against City with respect to such Rights and Obligations. Accordingly, without limiting any claims of Assignee under the Development Agreement, Assignor hereby waives any claims or potential claims by Assignor against City to the extent arising solely out of the Development Agreement. 7. Development Agreement in Full Force and Effect. Except as specifically provided herein with respect to the assignment, all the terms, covenants, conditions and provisions of the Development Agreement are hereby ratified and shall remain in full force and effect. 8. Recording. Assignor shall cause this Agreement to be recorded in the Official Records of City of Menifee, California, and shall promptly provide conformed copies of the recorded Agreement to Assignee and City. 9. Successors and Assigns. Subject to the restrictions on transfer set forth in the Development Agreement, all of the terms, covenants, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, successors and assigns, pursuant to Section 7.2 of the Development Agreement. EXHIBIT C-3 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001 10. Assignee Address for Notices. The address of Assignee for the purpose of notices, demands and communications under Section 8.5 of the Development Agreement shall be: With a copy to: Attention: Telephone: Facsimile: Attention: Telephone: Facsimile: 11. California Law/Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. Any legal actions under this Agreement shall be brought only in the Superior Court in City of Menifee, State of California. 12. Interpretation. All Parties have been represented by counsel in the preparation and negotiation of this Agreement, and this Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. Unless the context clearly requires otherwise: (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; and (e) "includes" and "including" are not limiting. 13. Headings. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. 14. Severability. Except as otherwise provided herein, if any provision(s) of this Agreement is (are) held invalid, the remainder of this Agreement shall not be affected, except as necessarily required by the invalid provisions, and shall remain in full force and effect unless amended or modified by mutual consent of the Parties. 15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute an original, but all of which, when taken together, shall constitute one and the same instrument, with the same effect as if all of the Parties to this Agreement had executed the same counterpart. EXHIBIT C-4 TO DEVELOPMENT AGREEMENT DOCSO C/1455134v9/200299-0001 16. City Consent. City is executing this Agreement for the limited purpose of consenting to the assignment and assumption and clarifying that there is privity of contract between City and Assignee with respect to the Development Agreement. 17. Effective Date. The Effective Date of this Agreement shall be the date upon which Assignee obtains fee title to the Property and delivers evidence of the transfer to City ("Effective Date"). For the purposes of this Section, the evidence of transfer shall consist of a duly recorded deed and title report. [Signatures follow on sepat•ate pages] EXHIBIT C-5 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001 IN WITNESS WHEREOF, Assignor, Assignee and City have entered into this Agreement as of the date first above written. ASSIGNOR: By:_ Nam( Title: [Notary Acknowledgment Required] ASSIGNEE: By:_ Name: Title: [NotatyAcknowledgment Required] [Signatures continued on next page] EXHIBIT C-6 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001 CITY CITY OF MENIFEE, a political subdivision of the State of California, By:_ Name: ATTEST: By: City Clerk APPROVED AS TO FORM: IN City Attorney (Notary Acknowledgment Requireel] EXHIBIT C-7 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001 EXHIBIT NO. 1 PROPERTY LEGAL DESCRIPTION [To Be Inserted] EXHIBIT NO. 1 TO EXHIBIT "C" TO DEVELOPMENT AGREEMENT DO CSO C/ 1455134v91200299-0001 EXHIBIT "D" ANNUAL REVIEW FORM This Annual Review Evaluation Form is submitted to the City of Menifee ("City") by [Developer] pursuant to the requirements of California Government Code section 65865.1 and Section 5 of the Development Rules to demonstrate good faith compliance with its obligations under the Development Agreement between the City and Developer having an Effective Date of ("Development Agreement"). All terms not otherwise defined herein shall have the meanings assigned to them in the Development Agreement: Annual Review Period: to In order to establish: (1) that Developer has used good faith efforts to obtain financing, process required approvals, and/or construct and sell the remaining undeveloped properties and reach allocated commercial/retail densities and/or residential unit maximums allocated under the Development Agreement and (2) whether the term of the Agreement may be extended consistent with the "Term" section 2.2, describe the following: a. Economic factors relevant to development in City and inland empire region including vacancy rates, construction costs, the availability of financing, market demand and average rental rates for different product types (residential/commercial/retail) within the Specific Plan. b. A summary of all efforts made in the past year to market, sell and process required permits and/or constrict the remaining undeveloped properties and reach allocated commercial/retail densities and/or residential unit maximums. C. A summary of specific strategies to be followed in the coming year intended to facilitate the processing of permits and/or actual project construction. Note that Developer has no affirmative obligation to process permits and construct and sell commercial/retail space and/or residential units under the Development Agreement. Accordingly, the discussion provided in connection with the above may not be used to establish a breach of the Development Agreement. However, the Parties intend that these factors will be taken into account in City's determination of whether to extend the Term of the Development Agreement pursuant to Section 2.2.Specify whether Impact Fees, Processing Fees, Connection Fees and/or other fees due and payable have been paid during this annual review period. Describe whether obligations related to open space dedications, open space improvements and/or open space in Iieu fees were satisfied where required during this annual review period. Describe whether other applicable Development Agreement obligations were completed during this annual review period. Specify whether Developer has assigned the Development Agreement or otherwise conveyed the Property during this annual review period. The undersigned representative confirms that [Developer] is: EXHIBIT D-1 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001 In good faith compliance with its obligations under the Development Agreement for this annual review period. Not in good faith compliance with its obligations under the Development Agreement for this annual review period, in response to which [Developer] is taking the actions set forth in the attachment hereto. IN WITNESS WHEREOF, [Developer] has executed this Annual Review Form as of this day of , 20_. EXHIBIT D-2 TO DEVELOPMENT AGREEMENI' DOCSOC/ 145513 4 v9/200299-000 I x s 9 ZZ m z m 0 z n m z mm -- zz�� HAUN ROAD m EXHIBIT "F" SUBSEQUENT TERMS Time to Meet Requirement for Extension Requirement for Extension Subsequent Term payment in Lieu (Option) Initial Term: 2 Upon the earlier to occur Years 3-7 n/a years from of (i) two (2) years from Effective Date the Effective Date or (ii) issuance of the first building permit, Developer shall have obtained the necessary permits and have commenced the satisfaction of its obligations related to the Civic Center Site pursuant to Section 3.19, including but not limited to commencement of construction of (i) Sherman Road from Newport Road to provide access to the Civic Center Site and (ii) the Temporary Sports Fields on the Civic Center Site. Construction shall be completed within one (1) year. Five (5) years Developer has obtained Years 8-13 $100.000 from end of the building permit(s) for Initial Term office/commercial use(s) totaling at least 75,000 square feet of gross building area within the Project in the aggregate since the Effective Date EXHIBIT F-1 TO DEVELOPMENT AGREEMENT DOCSOC/ 1455134v9/200299-0001