2020-302 Development Agreement Legado
PLEASE RECORD AND WHEN RECORDED
RETURN TO:
CITY OF MENIFEE 29844 Haun Road
Menifee, CA 92586
Attn: City Attorney
LEGADO
DEVELOPMENT AGREEMENT
This Development Agreement (hereinafter “Agreement”) is entered into on ______, 2020,
by and between the CITY OF MENIFEE (hereinafter “CITY”), a municipal corporation of the
State of California, and BLC FLEMING LLC, a Delaware limited liability company (hereinafter
“DEVELOPER”).
RECITALS
A. DEVELOPER owns all of the real property described on Exhibit A and depicted
on Exhibit B, consisting of approximately 331 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”).
B. The Planning and Zoning approvals for the Project on the Property obtained prior
to the Effective Date of this Agreement (collectively, the “Development Approvals”) include but
are not limited to the following:
i. Legado Specific Plan (No. 2017-187) (“Specific Plan”). Establishes a
specific land use plan, designation of planning areas, development
standards, architectural design guidelines and landscape design guidelines
for development of a maximum of 1,061 dwelling units and up to 225,000
square feet of freeway-oriented commercial uses, with twenty-two (22)
Planning Areas, 12.9 acres of community park, 7.9 acres of linear and
pocket parks, and additional features and amenities on the Property, adopted
by the City Council of the City of Menifee (“City Council”) on
________________ and provides the required contents of a Development
Plan in compliance with Government Code section 65865.2.
ii. Change of Zone (No. 2017-188). Changes the zoning classification on the
Property from “Fleming Ranch Specific Plan Zone” to “Legado Specific
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Plan Zone” to reflect the adopted Specific Plan and its allowed uses and
development standards, adopted by City Council on _______________.
iii. Tentative Tract Map (No. 37408). Proposes a subdivision of approximately
149.6 gross acres into 475 single-family residential lots and __ lots for open
space, park, landscape, monumentation, drainage, and storm drain purposes
with single-family residential lots with minimum lot sizes (depending on
Specific Plan Planning Area) of between 5,000 square feet and 7,000 square
feet, approved by City Council on _________________.
iv. Tentative Tract Map (No. 37409). Proposes a subdivision of approximately
159.1 gross acres into 547 single-family residential lots and __ lots for park,
landscape, monumentation, drainage, and storm drain purposes, with single-
family residential lots with minimum lot sizes (depending on Specific Plan
Planning Area) of 5,000 square feet and 7,000 square feet, approved by City
Council on _________________.
v. Tentative Tract Map (No. 37391). Proposes a large-lot subdivision of the
Property’s approximately 331.01 gross acres into twenty-six (26) parcels
for park, commercial, roadway, and financing purposes, including one
12.9 acre community park approved by City Council on ______________.
vi. Environmental Impact Report. The Environmental Impact Report (State
Clearinghouse No. 2009091118), which was prepared pursuant to CEQA,
was certified with findings by the City Council on ___________, by
Resolution No. _________ (the “EIR”).
Development consistent with all of the Development Approvals is hereinafter referred to
as the “Project.”
B. Government Code Sections 65864 et seq. (“Development Agreement Law”)
authorize CITY to enter into binding development agreements with persons having a legal or
equitable interest in real property for the development of such property, all for the purpose of
strengthening the public planning process, encouraging private participation and comprehensive
planning, and reducing the economic costs of such development. DEVELOPER and CITY have
agreed to enter into this Development Agreement in order to memorialize and secure the respective
expectations of the CITY and DEVELOPER.
C. The City Council has found that this Agreement is in the best public interest of the
CITY and its residents. adopting this Agreement constitutes a present exercise of the CITY’s police
power, and that the Project is consistent with the goals and policies of the CITY’s General Plan
and imposes appropriate standards and requirements with respect to the Development of the
Property in order to maintain the overall quality of life and of the environment within the CITY.
Among other things, this Agreement mandates the construction of improvments valued at Twenty
Two Million Nine Hundred Eighty-Four Thousand Six Hundred Forty-Four Dollars ($22,984,644)
more than the City could otherwise require of the Project.
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D. Prior to its approval of this Agreement, CITY considered the environmental
impacts of the Project and completed its environmental review of the Project.
E. On May 13, 2020, the Planning Commission of CITY held a public hearing on the
DEVELOPER’s application for approval of this Agreement, made certain findings and
determinations with respect thereto, and adopted Planning Commission Resolution No. ________,
which recommended to the City Council that this Agreement be approved.
F. On __________, the City Council held a public hearing on the DEVELOPER’S
application for approval of this Agreement, considered the recommendations of the Planning
Commission, and found that this Agreement is consistent with CITY’s General Plan. On
___________, the City Council introduced Ordinance No. _________, approving this
Development Agreement for first reading. On __________, the City Council approved Ordinance
No. _________, which takes effect as of _______________.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific meanings, as
defined below. These specially defined terms are distinguished by having the initial letter
capitalized, or all letters capitalized, when used in the Agreement. The defined terms include the
following:
1.1.1 “37408 Park Construction Drawings” means construction drawings for the
37408 Park Improvements submitted in accordance with all applicable City requirements
for such drawings.
1.1.2 “37408 Park Contract Notice” means the notice delivered by CITY to
DEVELOPER indicating the CITY’s acceptance or rejection of DEVELOPER’s preferred
37408 Selected Contract.
1.1.3 “37408 Park Plot Plan” means the plot plan for the 37408 Park
Improvements submitted to the CITY in accordance and in compliance with CITY’s
Municipal Code.
1.1.4 “37408 Park Selected Contract” means DEVELOPER’s selected contractor
bid for construction of the 37408 Park Improvements Center pursuant to the 37408
Construction Drawings.
1.1.5 “37409 Park Construction Drawings” means construction drawings for the
37409 Park Improvements submitted in accordance with all applicable City requirements
for such drawings.
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1.1.6 “37409 Park Contract Notice” means the notice delivered by CITY to
DEVELOPER indicating the CITY’s acceptance or rejection of DEVELOPER’s preferred
37409 Park Selected Contract.
1.1.7 “37409 Park Improvements” means the neighborhood park and Paseo
Legado East Park Improvements as set forth in Tentative Tract Map No. 37409.
1.1.8 “37409 Park Plot Plan” means the plot plan for the 37409 Park
Improvements submitted to the CITY in accordance and in compliance with CITY’s
Municipal Code.
1.1.9 “37409 Park Selected Contract” means DEVELOPER’s selected contractor
bid for construction of the 37408 Park Improvements Center pursuant to the 37409
Construction Drawings.
1.1.10 “37408 Park Improvements” means the neighborhood park and Paseo
Legado West Park Improvements as set forth in Tentative Tract Map No. 37408.
1.1.11 “Actual Costs of Construction” means the sum of (i) hard and soft out-of-
pocket costs paid to Unaffiliated third parties (including, without limitation, land use
planning and engineering costs, land acquisition costs, construction and management costs,
and permit and construction fees); (ii) general conditions costs (to the extent not included
in section “(i)” above, not to exceed five percent (5%) of hard costs); and (iii) an internal
DEVELOPER project administration fee of up to three percent (3%) of the hard and soft
costs set forth in (i) above to compensate DEVELOPER for performance of contract
administration, bidding, accounting, design oversight, and project management. For the
avoidance of doubt, the categories of costs set forth in clauses “(i)”, “(ii)”, and “(iii)” in
the precedent sentence are mutually exclusive, and no cost in one category may be included
in any other category. Actual Costs of Construction shall be evidenced by DEVELOPER’s
submission of paid invoices or other documentation reasonably acceptable to City. Except
as provided in clause (iii) above, internal project management and administrative costs and
expenses paid to affiliates of DEVELOPER, if any, shall not be counted for purposes of
the fee credit calculation.
1.1.12 “Agreement” means this Development Agreement.
1.1.13 “Affiliate” means a person or entity that, directly or indirectly controls the
DEVELOPER, is controlled by the DEVELOPER, or is, with the DEVELOPER, under
common control of another person or entity. Indicia of control include, without limitation,
interlocking management or ownership; identity of interests among family members;
shared facilities and equipment; common use of employees; and use of substantially the
same management, ownership or principals as the DEVELOPER.
1.1.14 “Applicable Law” means all federal, state, and local laws and regulations
applicable to the Project as of the Effective Date.
1.1.15 “Assessment District” means City of Menifee Community Facilities District
No. 2017-1 (Maintenance Services).
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1.1.16 “City Council” means the City Council of the CITY.
1.1.17 “CITY Parties” means the CITY, City Council, CITY officers, employees,
attorneys and agents.
1.1.18 “Claim” means any claim, loss, cost, damage, expense, liability, lien, action,
cause of action (whether in tort, contract, under statute, at law, in equity or otherwise),
charge, award, assessment, fine or penalty of any kind (including consultant and expert
fees, Legal Costs, and expenses and investigation costs of whatever kind or nature), and
any judgment caused or initiated by a third party. Without limiting the foregoing, “Claims”
include any matter that results or arises in any way from any of the following: (1) the
noncompliance by DEVELOPER or its contractor with any applicable local, state and/or
federal law or regulation, including, without limitation, any applicable federal and/or state
labor laws or regulations (including, without limitation, if applicable, the requirement to
pay state and/or federal prevailing wages and hire apprentices); (2) the implementation of
Labor Code Section 1781 and/or any other similar law or regulation; and/or (3) failure by
DEVELOPER to provide any required disclosure or identification as required by Labor
Code Section 1781, as the same may be amended from time to time, or any other similar
law or regulation.
1.1.19 “Community Center Construction Drawings” means construction drawings
for the Community Center submitted in accordance with all applicable CITY requirements
for such drawings.
1.1.20 “Community Center Contract Notice” means the notice delivered by CITY
to DEVELOPER indicating the CITY’s acceptance or rejection of DEVELOPER’s
preferred Community Center Selected Contract.
1.1.21 “Community Center Selected Contract” means DEVELOPER’s selected
contractor bid for construction of the Community Center pursuant to the Community
Center Construction Drawings.
1.1.22 “Community Park” means the 12.9 acre community park approved by the
City Council within Lot 18 of Tentative Tract Map No. 37391 and as further identified and
conceptually designed as a part of Tentative Tract Map No. 37408, which shall be
constructed in accordance with Section 6.2.
1.1.23 “Community Park Plot Plan” means the plot plan(s) for the Community
Park submitted to the CITY in accordance and in compliance with CITY’s Municipal Code.
1.1.24 “Community Park Construction Drawings” means construction drawings
for the Community Park, excepting and excluding for the Community Center.
1.1.25 “Community Park Contract Notice” means the notice delivered by CITY to
DEVELOPER indicating the CITY’s acceptance or rejection of DEVELOPER’s preferred
Community Park Selected Contract.
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1.1.26 “Community Park Selected Contract” means DEVELOPER’s selected
contractor bid for construction of the Community Park pursuant to the Community Park
Construction Drawings.
1.1.27 “Costs” means quantifiable expenses of any kind, including without
limitation the allocated value of staff time, amounts expended for consultant and/or legal
services, acquisition expenses, and allocated overhead.
1.1.28 “Default” means the failure to perform any material duty or obligation set
forth in this Agreement or to comply in good faith with the terms of this Agreement.
1.1.29 “DEVELOPER” means BLC FLEMING LLC, a Delaware limited liability
company and its successors in interest to all or any part of the Property.
1.1.30 “Development” means the improvement of the Property for the purposes of
completing the structures, improvements and facilities comprising the Project including,
but not limited to: grading; the construction of infrastructure and public facilities related
to the Project whether located within or outside the Property; the construction of buildings
and structures; and the installation of landscaping and park facilities and improvements.
“Development” also includes the maintenance, repair, reconstruction or redevelopment of
any building, structure, improvement, landscaping or facility after the construction and
completion thereof.
1.1.31 “Development Approvals” means all permits, licenses, consents, rights and
privileges, and other actions subject to approval or issuance by CITY in connection with
Development of the Property issued by CITY on or before the Effective Date, including
but not limited to:
(a) Specific plans and specific plan amendments;
(b) Zoning and rezoning;
(c) Tentative and final subdivision and parcel maps;
(d) Variances, conditional use permits, master plans, public use permits
and plot plans; and
(e) Grading, improvement and building permits.
1.1.32 “Development Fees” means 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 project and development of the public facilities
related to development of the project. Development Fees shall not include: (i) CITY’s
normal fees for processing, environmental assessment/review, tentative tracts/parcel map
review, plan checking, site review, site approval, administrative review, building permit
(plumbing, mechanical, electrical, building), inspection, and similar fees imposed to
recover CITY’s Costs associated with processing, review, and inspection of applications,
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plans, specifications, etc., and/or (ii) fees and charges levied by any other public agency,
utility, district, or joint powers authority, whether or not such fees are collected by CITY.
1.1.33 “Development Plan” means the plan for Development of the Property,
including without limitation, the Development Approvals, planning and zoning standards,
regulations, applicable conditions of approval, and criteria for the Development of the
Property, contained in and consistent with Exhibit C. “Development Plan” also includes
the Mitigation Measures identified in Exhibit D.
1.1.34 “Development Requirement” means any requirement of CITY in connection
with or pursuant to any Development Approval for the dedication of land, the construction
or improvement of public facilities, the payment of fees (including Development Fees) or
assessments in order to lessen, offset, mitigate or compensate for the impacts of
Development on the environment, or the advancement of the public interest.
1.1.35 “Effective Date” means the date that is the later of: (i) the date that the
ordinance approving this Agreement becomes effective; or (ii) the date that this Agreement
is executed by DEVELOPER.
1.1.36 “Excess Contributions” means the estimated community and area-wide
infrastructure and park benefits as set forth in column G of Exhibit F-1, column I of
Exhibit F-2, and column I of Exhibit F-3, to the extent they exceed the Development
Requirements the CITY could otherwise impose on the Project.
1.1.37 “Fair Share Fee” means the pro rata dollar amount and estimated fair share
percent responsibility of the Project for the Offsite Improvements set forth in Exhibit H.
1.1.38 “Individual Unit Owner” means any owner in fee of a dwelling unit other
than DEVELOPER or a successor in interest of DEVELOPER to all or a portion of the
Project as provided in Section 2.3.
1.1.39 “Land Use Regulations” means all ordinances, resolutions, codes, rules,
regulations, CITY adopted plans (including, but not limited to, trail plans and park master
plans) and official policies of CITY adopted and effective on or before the Effective Date
governing Development and use of land, including, without limitation, the permitted use
of land, the density or intensity of use, subdivision requirements, the maximum height and
size of proposed buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and specifications
applicable to the Development of the Property. “Land Use Regulations” does not include
any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) taxes and assessments (excluding land-secured special taxes and
assessments);
(c) the control and abatement of nuisances;
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(d) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public property;
(e) the exercise of the power of eminent domain; and
(f) the amount of processing fees or development impact fees.
1.1.40 “Legal Costs” means for any Person, all actual and reasonable costs and
expenses such Person incurs in any legal proceeding (or other matter for which such Person
is entitled to be reimbursed for its Legal Costs), including reasonable attorneys’ fees, court
costs and expenses, including in or as a result of any: (a) bankruptcy proceeding;
(b) litigation between the Parties; (c) negotiating or documenting any agreement with a
third party requested by the other Party; (d) requirement or request that such Person or its
employees act as a witness in any proceeding regarding this Agreement or the other Party;
and (e) review or approval that the other Party requests of such Person. All references to
Legal Costs shall include the salaries, benefits and costs of in-house or contract general
counsel to CITY or DEVELOPER, respectively, and the lawyers employed in the office of
such general counsel who provide legal services regarding a particular matter, adjusted to
or billed at an hourly rate and multiplied by the time spent on such matter rounded to
increments of one-tenth of an hour, in addition to Legal Costs of outside counsel retained
by CITY or DEVELOPER, respectively, for such matter.
1.1.41 “Mitigation Measures” means those requirements imposed on the Project
contained in Exhibit D.
1.1.42 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed
of trust or any other security-device, a lender or each of their respective successors and
assigns.
1.1.43 “Offsite Improvements” means those improvements to be developed outside
of the Property, as set forth on Exhibit H.
1.1.44 “Party” and “Parties” mean and refer to CITY and/or DEVELOPER, as
context dictates, and their respective successors, assigns, and Affiliates.
1.1.45 “Park Obligation” means all park dedications, in-lieu fees, new
Development Fees, Development Fee increases/escalations, or other facility requirements
of any type related to CITY park construction, improvement, and payment obligations that
are not otherwise specifically set forth in the conditions of approval contained in the
Development Approvals (including, without limitation, obligations to post security for park
construction obligations).
1.1.46 “Person” means any association, corporation, government, individual, joint
venture, joint-stock company, limited liability company, partnership, trust, unincorporated
organization or other entity of any kind.
1.1.47 “Project” means the Development of the Property consistent with the
Development Plan.
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1.1.48 “Property” means the real property described in Exhibit A and shown on
Exhibit B to this Agreement.
1.1.49 “Quimby Act” means Government Code section 66477 et seq.
1.1.50 “Reservation of Authority” means the rights and authority excepted from
the assurances and rights provided to DEVELOPER under this Agreement and reserved to
CITY.
1.1.51 “Reimbursable Projects” means the public improvements identified on
Exhibit F, which shall be subject to the reimbursement agreements described in
Section 5.2.
1.1.52 “Reimbursement Agreement” means an agreement(s) between CITY and
DEVELOPER to repay DEVELOPER from a defined set of revenue sources for the
reimbursable portion of the Reimbursable Projects, as specified in Exhibit F and
Section 5.2.
1.1.53 “Subsequent Development Approvals” means all permits, licenses,
consents, rights and privileges, and other actions subject to approval or issuance by CITY
in connection with Development of the Property issued by CITY subsequent to the
Effective Date.
1.1.54 “Subsequent Land Use Regulations” means all ordinances, codes, rules,
regulations, CITY adopted plans (including, but not limited to, trail plans and park master
plans) and official policies of CITY adopted and effective after the Effective Date of this
Agreement governing Development and use of the Property, including, without limitation,
the permitted use of the Property, the density or intensity of use, subdivision requirements,
the maximum height and size of proposed buildings, the provisions for reservation or
dedication of land for public purposes, and the design, improvement, and construction
standards and specifications applicable to the Development of the Property; provided,
however, that “Subsequent Land Use Regulations” do not include any CITY ordinance,
resolution, code, rule, regulation or official policy, governing: (a) the conduct of business,
professions, and occupations; (b) taxes and assessments (excluding land-secured special
taxes and assessments); (c) the control and abatement of nuisances; (d) the granting of
encroachment permits and the conveyance of rights and interests which provide for the use of
or entry upon public property; (e) the exercise of the power of eminent domain; and (f) the
amount of processing fees or development impact fees.
1.1.55 “Term” means the period of time from the Effective Date until the
expiration of this Agreement as provided in subsection 2.4, or earlier termination as
provided in Section 8.
1.1.56 “Transfer” means sell, assign, or transfer.
1.1.57 “Unaffiliated” means and refers to a person or entity that is not an Affiliate.
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1.2 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit A Legal Description of the Property.
Exhibit B Map showing Property and its location.
Exhibit C Development Plan
Exhibit D Mitigation Measures
Exhibit E Development Impact Fees
Exhibit F Estimated Excess Contributions
Exhibit G Assumption Agreement
Exhibit H Off Site Improvements and Fair Share Fees
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. From and following the Effective Date,
Development of the Project and CITY actions on applications for Subsequent Development
Approvals respecting the Development of the Project shall be subject to the terms and provisions
of this Agreement.
2.2 Assignment.
2.2.1 Release of Transferring DEVELOPER. Upon the Transfer in whole or in
part, of DEVELOPER’s right and interest to all or any portion of the Property,
DEVELOPER may, at least thirty (30) days prior to completion of the Transfer, apply to
CITY for a release from its obligations hereunder with respect to the portion of the Property
so Transferred. CITY shall approve the partial or full release if: (i) DEVELOPER is not
in Default of this Agreement at the time of the request for release, or provides adequate
assurances to CITY that it will cure any Default prior to the Transfer, (ii) with respect to
the Transfer of any lot that has not been fully improved, the transferee executes and delivers
to CITY a written assumption agreement in substance and form which is approved by
CITY’s Attorney, which approval shall not be unreasonably denied, and in which: (A) the
name and address of the transferee is set forth; (B) the transferee expressly assumes the
obligations of DEVELOPER under this Agreement as to the portion of the Property
transferred; (C) the transferee provides commercially reasonable assurances of its
performance of the obligations of the DEVELOPER that transferee proposes to assume;
and (D) the assumption agreement adequately allocates to the transferee (or justifies the
non-allocation) credits, reimbursements, or other benefits provided to DEVELOPER under
this Agreement that relate to the portion of the Property transferred. A written assumption
agreement substantially in the form of Exhibit G, augmented with the assurances of
performance and allocations of credits, reimbursement rights, and other benefits, as
detailed in clauses (ii)(C) and (ii)(D) of the preceding sentence, shall be deemed pre-
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approved by the CITY’s Attorney. Failure to obtain CITY approval of a written
assumption agreement hereunder shall not negate, modify or otherwise affect the liability
under this Agreement of any transferee or future owner of any portion of the Property.
DEVELOPER shall remain responsible for all obligations set forth in the Agreement that
are not subject to an assignment approved by the CITY in accordance with this paragraph.
2.3 Term.
2.3.1 Term. The term of this Agreement (“Term”) shall commence on the
Effective Date and shall continue thereafter for a period of fifteen (15) years (“Original
Term”), unless this Agreement is terminated, modified, or extended by circumstances set
forth in this Agreement or by mutual written consent of the Parties. The Term shall be
automatically extended for a five (5) year period (“First Extension”) if DEVELOPER
obtains certificates of occupancy for 500 Project dwelling units prior to the expiration of
the Original Term. The Term shall be further automatically extended by an additional five
(5) year period (“Second Extension”) if DEVELOPER obtains certificates of occupancy
for at least a cumulative total of 750 Project dwelling units prior the expiration of the First
Extension. The Term may be extended beyond the lapsing of the Second Extension if the
DEVELOPER and CITY, in their respective sole and absolute discretion, so agree in
writing; provided, however, that the total Term shall not exceed twenty-five (25) years
except for the extensions of time due to Force Majeure Delays contemplated by
Section 11.11.
2.3.2 Where a shorter term is not mandated by Applicable Law, the term of any
and all discretionary Development Approvals and discretionary Subsequent Development
Approvals shall automatically be extended for the longer of the Term of this Agreement or
the term otherwise applicable to such discretionary Development Approvals or
discretionary Subsequent Development Approvals. For the avoidance of doubt, the
following categories of Development Approvals and Subsequent Development Approvals
shall be deemed “not discretionary” for purposes of this section: grading permits, building
permits, improvement permits, landscape permits, wall and fence plans, and signage
permits and programs.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement, DEVELOPER shall
have a vested right to develop the Project in accordance with, and to the extent of, the Development
Plan. Development of the Project is hereby vested specifically with the Property, and that
DEVELOPER retains the right to apportion development rights between itself and any subsequent
DEVELOPER, upon the Transfer of any portion of the Property, so long as such apportionment
is, prior to becoming effective, approved by CITY in writing in accordance with Section 2, and
consistent with the Development Plan and the Land Use Regulations.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement, the rules, regulations and official policies governing permitted
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uses of the Property, the density and intensity of use of the Property, the maximum height and size
of proposed buildings, and the design, improvement and construction standards and specifications
applicable to Development of the Property, shall be those contained in the Development Plan and
the Land Use Regulations.
3.3 Subsequent Development Approvals. CITY shall accept for processing, review
and action all applications for Subsequent Development Approvals necessary and appropriate for
implementation of the Project, and such applications shall be processed in the normal manner for
processing such matters, for all or a portion of the Property at DEVELOPER’s option. The CITY
further agrees that, unless otherwise requested by DEVELOPER or as authorized by this
Agreement, it shall not, absent a violation of Applicable Law by DEVELOPER, amend or rescind
any Subsequent Development Approvals respecting the Property after such approvals have been
granted by the CITY. All Subsequent Development Approvals that are necessary and appropriate
for implementation of the Project 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; provided, however, that requests for Subequent Development Approvals (including,
without limitation, General Plan amendments, zone changes, specific plan amendments, or
variances) that increase the overall intensity or density of Development or otherwise cause a
substantial modification of the Development Plan shall not be deemed incorporated herein and
vested as of the the effective date of such approvals, but shall instead require an amendment to this
Agreement in accordance with Applicable Law and Section 3.5.
3.4 Timing of Development. The Parties acknowledge that DEVELOPER cannot at
this time predict when or the rate at which phases of the Property will be developed. Such
decisions depend upon numerous factors which are not within the control of DEVELOPER, such
as market orientation and demand, interest rates, absorption, completion and other similar factors.
Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984)
37 Cal. 3d 465, that the failure of the parties therein to 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 parties’ intent to cure that deficiency by acknowledging and providing
that DEVELOPER shall have the right to develop the Property in such order and at such rate and
at such times as DEVELOPER deems appropriate within the exercise of its subjective business
judgment. Nothing in this section is intended to alter the standard durational limits of any
applicable permits issued to DEVELOPER.
3.5 Changes and Amendments. The Parties acknowledge that Development of the
Project will likely require Subsequent Development Approvals, and that in connection therewith
DEVELOPER may determine that changes are appropriate and desirable in the existing
Development Approvals or Development Plan. In the event DEVELOPER finds that such a
change is appropriate or desirable, DEVELOPER may apply, in writing, for an amendment to prior
Development Approvals or the Development Plan to effectuate such change, and CITY shall
process and act on such application notwithstanding anything in this Agreement that may be to the
contrary. CITY shall have no obligation to grant any such application for a Subsequent
Development Approval by DEVELOPER (including, without limitation, General Plan
amendments, zone changes, specific plan amendments, or variances) that increases the overall
intensity or density of Development or, in the sole and absolute discretion of the CITY’s City
Manager, otherwise causes a substantial modification of the Development Plan, and CITY shall
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not approve any such application for substantial modifications unless accompanied by an
amendment to this Agreement processed in accordance with Applicable Law. Except as provided
in the preceding sentence, if approved in a form to which DEVELOPER and CITY have both, in
their respective sole and absolute discretion, consented in writing, any application effectuating a
change in the Development Approvals or Development Plan shall be incorporated herein and any
resulting modifications to the Exhibits to this Agreement, shall be administratively appended to
this Agreement for tracking purposes, and a notice thereof shall be recorded in the Official Records
of the County of Riverside.
3.6 Reservation of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other
provision of this Agreement, the following Subsequent Land Use Regulations shall apply
to the Development of the Property:
(a) Processing fees and charges of every kind and nature imposed by
CITY to cover the estimated actual Costs to CITY of processing applications for
Development Approvals, or Subsequent Development Approvals, or for monitoring
compliance with any Development Approvals or Subsequent Development
Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearing, reports, recommendations, appeals
and any other matter of procedure.
(c) Changes adopted by the International Conference of Building
Officials as part of the then most current versions of the Uniform Building Code,
Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, Uniform
Solar Energy Code, Uniform Swimming Pool, Spa and Hot Tub Code, Uniform
Housing Code, Uniform Administrative Code, or National Electrical Code, and also
adopted by CITY as Subsequent Land Use Regulations.
(d) Regulations imposed by the CITY which may be in conflict with the
Development Plan but which are reasonably necessary to protect the public health
or safety. To the extent reasonable and feasible, any such regulations shall be
applied and construed consistent with Section 3.6.2 below so as to provide
DEVELOPER with the rights and assurances provided under this Agreement.
(e) Regulations imposed by the CITY which are not in conflict with the
Development Plan and this Agreement.
(f) Regulations which are in conflict with the Development Plan
provided DEVELOPER and CITY have given written consent to the application of
such regulations to Development of Property.
(g) Laws and regulations imposed by Federal, State, regional, or other
governmental authorities, or imposed directly by the CITY as necessary to comply
with Federal, State, regional or other governmental authorities’ regulations, which
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CITY is required to enforce against the Property or the Development of the
Property.
For purposes of this Section 3.6 and Section 3.2 the word “conflict” means any CITY-
imposed modification that: (a) changes the permitted uses of the Property, the density and
intensity of use (including, but not limited to, floor area ratios of buildings and the
maximum number of units), or the maximum height and size of proposed buildings in a
manner that is not consistent with the vested Land Use Regulations, the Development
Approvals, and/or the vested Subsequent Development Approvals; (b) imposes new or
additional requirements, or changes existing requirements, for reservation or dedication of
land for public purposes or requirements for infrastructure, public improvements, or public
utilities that are not otherwise provided for pursuant to the vested Land Use Regulations,
the Development Approvals, and/or vested Subsequent Development Approvals; (c)
changes conditions upon Development of the Property other than as permitted by Section
3.6.1, the vested Land Use Regulations, the Development Approvals, and the vested
Subsequent Development Approvals; (d) expressly limits the timing, phasing, or rate of
Development of the Property in a manner that is not consistent with the vested Land Use
Regulations, the Development Approvals, and/or the vested Subsequent Development
Approvals; (e) limits the location of building sites, grading, or other improvements on the
Property in a manner that is not consistent with the vested Land Use Regulations, the
Development Approvals, and/or the vested Subsequent Development Approvals ; (f)
unreasonably limits or controls the ability to obtain public utilities, services, or facilities in
a manner that is not consistent with the vested Land Use Regulations, the Development
Approvals, and/or the vested Subsequent Development Approvals (provided, however,
nothing herein shall be deemed to exempt the Project or the Property from any water use
rationing requirements that may be imposed from time to time in the future or be construed
as a reservation of any existing sanitary sewer or potable water capacity); (g) requires, or
removes the requirement for, the issuance of additional permits or approvals by CITY
(except to the extent otherwise authorized by this section) other than those required by
Land Use Regulations, the Development Approvals, and the vested Subsequent
Development Approvals; (h) changes or removes the permitted Development Fees or adds
new Development Fees, except as permitted in this Agreement; (i) establishes, enacts,
increases, or imposes against the Project or the Property any special taxes or assessments
other than those specifically permitted by this Agreement; (j) imposes against the Project
any Development Requirement not specifically authorized by then-Applicable Law or the
vested Land Use Regulations or vested Subsequent Development Approvals (including this
Agreement); (k) unreasonably limits the processing or procuring of applications and
approvals of Subsequent Development Approvals; or (l) changes, as against the Project,
any obligations regarding affordable housing not specifically required by the Development
Approvals (except to the extent otherwise necessary to comply with a mandate or law
imposed by another governmental authority).
3.6.2 Future Discretion of CITY. This Agreement shall not prevent CITY, in
acting on Subsequent Development Approvals, from applying Subsequent Land Use
Regulations which do not conflict with the Development Plan, nor shall this Agreement
prevent CITY from denying or conditionally approving any Subsequent Development
Approval on the basis of the existing Land Use Regulations or any Subsequent Land Use
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Regulation not in conflict with the Development Plan so long as the conditions imposed
on Subsequent Development Approvals do not impose Development Requirements beyond
those included in the Development Approvals; provided, however, that consistent with
Section 3.5, nothing in this Section 3.6 shall in any way require that CITY grant any
Subsequent Development Approval (including, without limitation, General Plan
amendments, zone changes, specific plan amendments, or variances) that modifies the
overall intensity or density of Development or otherwise is, in the sole and absolute
discretion of the CITY, a substantial modification of the Development Plan. Such
Subsequent Development Approvals may be approved, denied, or conditioned in any manner
deemed appropriate by the CITY and consistent with then Applicable Laws, and shall not be
limited in any way by the provisions of this Agreement.
3.6.3 Modification or Suspension by State or Federal Law. In the event that State
or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent
or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to
comply with such State or Federal laws or regulations, and this Agreement shall remain in
full force and effect to the extent it is not inconsistent with such laws or regulations and to
the extent such laws or regulations do not render such remaining provision impractical to
enforce.
3.6.4 Taxes, Assessments and Fees. This Agreement shall not prevent the CITY
from enacting, levying or imposing any new or increased tax, assessment or fee.
3.7 Regulation by Other Public Agencies. It is acknowledged by the Parties that
other public agencies not subject to control by CITY possess authority to regulate aspects of the
Development of the Property, and this Agreement does not limit the authority of such other public
agencies.
3.8 Compliance with Government Code Section 66473.7. As mandated by
Government Code Section 65867.5, any tentative map prepared for the subdivision(s) included
within the Project will comply with Government Code Section 66473.7.
3.9 Vesting Tentative Maps. If any tentative or final subdivision map, or tentative or
final parcel map, heretofore or hereafter approved in connection with Development of the Property,
is a vesting map under the Subdivision Map Act (Government Code Section 66410, et seq.), and
if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it
grants a vested right to develop to DEVELOPER, then and to that extent the rights and protection
afforded DEVELOPER under the laws and ordinances applicable to vesting maps shall supersede
the provisions of this Agreement. Except as set forth immediately above, Development of the
Property shall occur only as provided in this Agreement, and the provisions in this Agreement
shall be controlling over any conflicting provision of law or ordinance concerning vesting maps.
3.10 Provision of Real Property Interests by CITY. In any instance where
DEVELOPER is required by a condition on the a Project tentative subdivision map to construct
any public improvement on land not owned by DEVELOPER, CITY shall first have acquired the
necessary real property interests to allow DEVELOPER to construct such public improvements.
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Costs associated with such acquisition or condemnation proceedings, if any, shall be
DEVELOPER’s responsibility.
3.11 Cooperation in Completing Development Plan. CITY agrees to cooperate with
DEVELOPER, at no cost to CITY, as necessary for the successful completion of the Development
Plan and fulfillment of Development Requirements, including, without limitation, accomplishment
of each and every one of the Mitigation Measures, and all other requirements or conditions that
may be imposed on the Development by other public agencies.
4. REVIEW FOR COMPLIANCE.
4.1 Periodic Review. During the Term, the City Council or, at CITY’s election
CITY’s City Manager, shall review this Agreement annually during May of each year following
the Effective Date of this Agreement, in order to ascertain the good faith compliance by
DEVELOPER with the terms of the Agreement. As part of that review, DEVELOPER shall
submit an annual monitoring review statement describing its actions in compliance with this
Agreement, in a form acceptable to the CITY’s City Manager, by April 10. The statement shall
be accompanied by an annual review and administration fee sufficient to defray the estimated costs
of review and administration of the Agreement during the succeeding year. The amount of the
annual review and administration fee shall be set by resolution of the City Council. CITY shall
not hold an Annual Review unless it provides DEVELOPER at least thirty (30) days written notice
of such Annual Review.
4.2 Special Review. The City Council may order a special review of compliance with
this Agreement at any time. DEVELOPER shall cooperate with the CITY in the conduct of
such special reviews.
4.3 Procedure. In connection with any periodic or special review, each Party shall
have a reasonable opportunity to assert matters which it believes have not been undertaken in
accordance with the Agreement, to explain the basis for such assertion, and to receive from the
other Party a justification of its position on such matters. If on the basis of the Parties’ review of
any terms of the Agreement, either Party concludes that the other Party has not complied in good
faith with the terms of the Agreement, then such Party may issue a written “Notice of Non-
Compliance” specifying the grounds therefor and all facts demonstrating such non-compliance.
The Party receiving a Notice of Non-Compliance shall have thirty (30) days to respond in writing
to said Notice. If a Notice of Non-Compliance is contested, the Parties shall have up to sixty (60)
days to arrive at a mutually acceptable resolution of the matters occasioning the Notice. In the
event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by
the end of the sixty (60) day period, the Party alleging the non-compliance may thereupon pursue
the remedies provided in Section 8.
4.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or
Special Review, DEVELOPER is found to be in compliance with this Agreement, CITY shall,
upon request by DEVELOPER, issue a Certificate of Agreement Compliance (“Certificate”) to
DEVELOPER stating that after the most recent Periodic or Special Review and based upon the
information known or made known to the CITY’s City Manager and City Council that (1) this
Agreement remains in effect and (2) DEVELOPER is in compliance. The Certificate shall be in
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recordable form, shall contain information necessary to communicate constructive record notice
of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special
Review and shall state the anticipated date of commencement of the next Periodic Review.
DEVELOPER may record the Certificate with the County Recorder. Additionally, DEVELOPER
may at any time request from the CITY a Certificate stating, in addition to the foregoing, which
obligations under this Agreement have been fully satisfied with respect to the Property, or any lot
or parcel within the Property.
5. FEES.
5.1 Development Fees. The current Development Fees applicable to the Project are in
the amount set forth in Exhibit E. DEVELOPER agrees that all Development Approvals and
Subsequent Development Approvals that do not require an amendment to this Agreement under
Section 3.5 shall be subject to the Development Fees. DEVELOPER and CITY further agree that
the Development Fees (shown on and subject to adjustments as allowed in Exhibit E) shall remain
fixed for a period of seven (7) years from the Effective Date. If the CITY incorporates automatic
periodic increases of the Development Fees applicable to all CITY development projects,
following the seven (7) year fixed period, the Project will be subject to only 50% of such accrued
periodic increases for a three (3) year period whether the periodic increase occurred within the
initial seven (7) year fixed period or after. Any Development Fees that are due ten (10) or more
years following the Effective Date shall be subject to the full Development Fees in effect at the
time due.
5.2 Credits and Reimbursements.
5.2.1 Credits. DEVELOPER shall be entitled to full Development Fee credits for
all Project dwelling units for the Development Fees identified in in column D of Exhibit F-
1, in column F of Exhibit F-2, and column F of Exhibit F-3 so long as, prior to obtaining
and utilizing such Development Fee credits, DEVELOPER provides adequate sureties for
the facilities associated with each respective Development Fee credit (e.g., a transportation
fee credit would be available to the extent adequate sureties for the transportation facilities
identified on Exhibit F-1 have been provided). The currently estimated total Development
Fee credits are identified in column D of Exhibit F-1, in column F of Exhibit F-2, and
column F of Exhibit F-3. Available Development Fee credits shall survive the expiration
or earlier termination of this Agreement but shall be applicable only to Development of the
Project on the Property.
5.2.2 Reimbursements for Circulation and Storm Drain Facilities.
DEVELOPER shall be entitled to reimbursements of Development Fees paid by third
parties and otherwise eligible for use on the facilities listed in Exhibit F, in accordance
with the formulas set forth in columns E and F of Exhibit F-1 (for each circulation facility
listed therein), and in columns G and H of Exhibit F-2 (for each storm drain facility listed
therein). The current estimate of such reimbursements are also set forth in columns E and
F of Exhibit F-1 (for each circulation facility listed therein), and in columns G and H of
Exhibit F-2 (for each storm drain facility listed therein). CITY and DEVELOPER shall
enter into one or more Reimbursement Agreements for the circulation facilities listed on
Exhibit F-1 and Exhibit F-2 within one (1) year after the Effective Date; provided,
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however, that the effective date of each Reimbursement Agreement shall be the date of
CITY’s acceptance of the circulation or storm drainage facility that is the subject of the
Reimbursement Agreement. The Reimbursement Agreements shall include terms that:
(i) recognize that DEVELOPER has under Section 5.2.1 obtained specific impact fee
credits described in column D of Exhibit F-1 on the appropriate row for each facility, and
in column F of Exhibit F-2 on the appropriate row for each facility; (ii) establish a
mechanism for DEVELOPER to obtain, for a period of ten (10) years following the
effective date of each Reimbursement Agreement, reimbursements from CITY up to the
dollar amounts contemplated in columns E and F of Exhibit F-1 (for each circulation
facility listed therein), and in columns G and H of Exhibit F-2 (for each storm drain facility
listed therein) with such reimbursements coming solely from the Development Fees
collected by the CITY and otherwise eligible for expenditure of the subject circulation and
drainage facilities; and (iii) establish procedures for the partial release and release of any
sureties for the facilities.
5.2.3 Reimbursements for Park Facilities. CITY and DEVELOPER shall enter
into Reimbursement Agreements for each of the park facilities listed on Exhibit F-3 within
one (1) year after the Effective Date; provided, however, that the effective date of each
Reimbursement Agreement shall be the date of the public opening of the park that is the
subject of the Reimbursement Agreement. The Reimbursement Agreements shall include
terms that: (i) give DEVELOPER the specific impact fee credits for the parks described in
column F of Exhibit F-3 on the appropriate row for each park facility; (ii) establish a
mechanism for DEVELOPER to obtain, for a period of ten (10) years following the
effective date of each Reimbursement Agreement, reimbursements from CITY for Excess
Contributions associated with each park described in Exhibit F-3 up to the cumulative
dollar amount in column G of Exhibit F-3 (as adjusted in accordance with footnote 4 of
Exhibit F-3 and Exhibit F-4), with such reimbursements coming solely from the following
sources: (A) transfer from CITY to DEVELOPER of the Development Fees for parks (if
any) paid after the Effective Date by development in an area to be designated by the Parties
in the Reimbusement Agreement and that are eligible for expenditure on each park
described in Exhibit F-3; and (B) for the Community Park and Community Center Park
Facilities listed on Exhibit F-3, transfer from CITY to DEVELOPER of twenty percent
(20%) of CITY’S lease revenues associated with the Community Park and the Community
Center, respectively; and (iii) establish procedures for the partial release and release of any
sureties for the facilities.
5.2.4 Limitation on Total Credits and Reimbursements. For each of the facilities
listed in Exhibit F, the total credits and reimbursements shall not exceed the dollar amount
of the Actual Cost of Construction of such improvement.
5.2.5 Interpretation and Precedence. This Section 5.2 shall be deemed an
application for such credits and reimbursements if such credits and reimbursements require
an application under the CITY’s Municipal Code. Further, this Section 5.2 shall control
over any contrary provisions applicable to Development Fee credits and reimbursements
in the CITY’s Municipal Code.
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5.2.6 Assumption of Risk. DEVELOPER agrees to assume the risk that the Actual
Costs of Construction incurred in connection with the construction, installation and/or
dedication of each of the improvements listed on Exhibit F-1, Exhibit F-2, and Exhibit
F-3 will exceed the identified “Project Cost” for each such improvement, subject to the
design and cost control protocols set forth in Section 6.2.
5.3 Public Benefit. DEVELOPER shall, subject to this Agreement, construct or cause
the construction of all of the community and area-wide infrastructure and park benefits as set forth
in Exhibit F, even though those benefits exceed the Development Requirements the CITY could
otherwise impose on the Project. CITY and DEVELOPER agree that this Agreement serves as a
contractual mechanism through which the CITY can facilitate construction of such facilities.
DEVELOPER’s Excess Contributions toward the improvements set forth in Exhibit F are
estimated to exceed the dollar value of the Development Requirements the CITY could otherwise
impose on the Project without this Agreement by Twenty Two Million Nine Hundred Eighty-Four
Thousand Six Hundred Forty-Four Dollars ($22,984,644).
5.4 Other Fees and Charges. After the ten (10) year period described in Section 5.1,
this Agreement shall not limit or restrict CITY’s authority to impose new area-wide fees, charges,
assessments, or taxes for the Development of the Property or to increase any existing fees, charges,
assessments, or taxes, and nothing set forth herein is intended or shall be construed to limit or
restrict whatever right the DEVELOPER might otherwise have to challenge any fee, charge,
assessment, or tax either not set forth in this Agreement or not in effect as of the Effective Date.
DEVELOPER shall timely pay all applicable fees, charges, assessments, and special and general
taxes validly imposed in accordance with the Constitution and laws of the State of California,
including without limitation school impact fees in accordance with Government Code §§ 65995,
et seq.
5.5 Fair Share Offsite Improvement Fees. Vesting Tentative Tract Map No. 37408
and Vesting Tentative Tract Map No. 37409 Public Works/Engineering Condition of Approval 88
states in part that upon “the issuance of each building permit the developer/property owner shall
pay a pro rata amount of the total fair share cost for Offsite Improvements for all development
phases of VTTM 37408 and VTTM 37409. The exact pro rata cost is to be determined prior to
the first building permit in VTTM 37408 or VTTM 37409.” The Offsite Improvements subject to
such pro rata amount and estimated fair share percent responsibility of the Project, and the
estimated cost of each Offsite Improvement is set forth Exhibit H. The Parties agree that the Fair
Share Fees will be based on a per dwelling unit basis. The current estimate of the total fair share
contribution of the Project to the Offsite Improvements is Four Million Six Hundred Four
Thousand Two Hundred Eighty Dollars ($4,604,280), which would equal a Fair Share Fee of Four
Thousand Five Hundred Five Dollars and Seventeen Cents ($4,505.17) per unit based on one
thousand twenty-two (1,022) dwelling units. The Parties acknowledge that this is only an estimate
and the actual Fair Share Fee may be higher or lower than Four Thousand Five Hundred Five
Dollars and Seventeen Cents ($4,505.17) per unit. CITY shall within a reasonable time after
receipt of a request from DEVELOPER and at no cost to CITY, provide DEVELOPER an estimate
of the Fair Share Fees prior to the approval of the first small lot subdivision map for the Project.
The Fair Share Fee shall be paid at the time of issuance of building permits for each dwelling unit
of the Project. Fair Share Fees shall be held in a restricted account and only used for the
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improvements in Exhibit H. The Fair Share Fees shall be subject to the management and reporting
requirement in the Mitigation Fee Act (Section 66000 et seq. of the Government Code). The City
shall recalculate the Fair Share Fee every year following the calculation of the initial Fair Share
Fee, which shall occur prior to issuance of the first building permit for Tentative Tract Map No.
37408 or Tentative Tract Map No. 37409. Each adjustment to the Fair Share Fee shall take into
account such factors such as the actual cost of construction of the completed Offsite Improvements,
the remaining building permits to be issued for the Project, whether an Offsite Improvement was
constructed by another project as a condition of approval, whether any Offsite Improvements were
included into a capital improvement program, and other factors that justify an adjustment to the
Project’s fair share contribution to an Offsite Improvement, and impose such fees on building
permits issued after the date the fee is recalculated. Within ninety (90) days after the completion
of all of the Offsite Improvements described in Exhibit H, the CITY shall refund DEVELOPER
the unexpended portion of the collected Fair Share Fees.
6. CONSTRUCTION OF PARK AND RECREATION IMPROVEMENTS.
6.1 Notwithstanding anything in this Agreement or the Applicable Law to the contrary,
completion of the park and recreation improvements described in this Section 6 shall be the full
and complete satisfaction of the DEVELOPER’s Park Obligation related to provision of
neighborhood and/or community parks pursuant to CITY’s Municipal Code, the Quimby Act, and
this Agreement. DEVELOPER is obligated, based on the CITY’s formula for local park
dedication, to provide 16.8 acres of unimproved neighborhood parks. DEVELOPER will be
providing 20.8 acres of dedicated land for the Community Park, linear parks, and pocket parks,
resulting in an excess dedication of 4 acres. DEVELOPER has offered such excess dedication as
an Excess Contribution. The Parties agree that the unreimbursed costs of DEVELOPER’s
improvements to the 12.9 acre Community Park will exceed the Park Obligation of the Project and
therefore the DEVELOPER shall receive a full and complete credit for the Park Obligation of the
Project.
6.2 In full and complete satisfaction of DEVELOPER’s Park Obligation,
DEVELOPER shall do all of the following subject to the credits and reimbursements described in
Section 5.2:
6.2.1 Timing and Scope of Tentative Tract Map (No. 37408) Community Park
Improvements.
(a) Plot Plan. Prior to 250th certificate of occupancy for a Project
dwelling unit (or final inspection if no certificates of occupancies are issued for
dwelling units), DEVELOPER shall prepare and obtain approval from CITY of
Community Park Plot Plans consistent with the design and improvements set forth
in the Specific Plan and Tentative Tract Map No. 37408, which shall include the
location of the Community Center and/or accommodate the location of the
Community Center. City’s approval of the Community Park Plot Plans shall not
be unreasonably withheld, conditioned, or delayed.
(b) Community Park Construction Drawings. DEVELOPER shall rely
on the Community Park Plot Plans to prepare and obtain approval from CITY of
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the Community Park Construction Drawings prior to 300th certificate of occupancy
for a Project dwelling unit (or final inspection if no certificates of occupancies are
issued for dwelling units). The Community Park Construction Drawings shall
substantially conform to the design elements of the Community Park Plot Plan; no
substantial deviation from the design elements of the Community Park Plot Plan
shall be permitted unless mutually agreed upon by CITY and DEVELOPER. The
Community Park Construction Drawings shall be subject to CITY’s timely review
and approval; such approval shall not be unreasonably withheld, conditioned or
delayed.
(c) Review of Community Park Bid. Prior to entering into a
construction contract for the Community Park, DEVELOPER shall deliver to CITY
DEVELOPER’s preferred contractor for the Community Park Selected Contract
which, when combined with a fifteen percent (15%) contingency and all other
categories of Actual Costs of Construction, shall not exceed the amount specified
as the Project Cost for the Community Park in Exhibit F-3 (as adjusted in the
manner required by Exhibit F-4). CITY shall have fifteen (15) days from the
delivery of the Community Park Selected Contract to provide the Community Park
Contract Notice, which will indicate, in its reasonable discretion, CITY’s
acceptance or rejection of the Community Park Selected Contract. CITY’s
acceptance or rejection of the bid shall be based on (i) commercially reasonable
considerations that are consistent with CITY’s historic practices and/or facts or
concerns disclosed upon a reasonable review of the bid documents, or (ii) concern
that the costs of the park will exceed DEVELOPER’s obligations under this
Agreement, thereby resulting in a potential financial exposure to the CITY. If
CITY rejects the Community Park Selected Contract, it shall identify reasonable
requested changes in such contract in the Community Park Contract Notice
(including, without limitations, requests to modify or value engineer park features
to reduce the overall cost as necessary to remove any financial exposure of CITY)
and DEVELOPER shall make reasonable efforts to obtain a revised bid that
addresses the issues identified in the Community Park Contract Notice and submit
the same to the CITY. CITY shall have fifteen (15) days from the delivery of the
revised bid to approve or reject the revised bid in its reasonable discretion. If CITY
rejects the revised Community Park Selected Contract and any revised bid, then
DEVELOPER may either make further modifications to address CITY’s concerns,
or may demand the engagement of a neutral third party, selected upon the mutual
agreement of the Parties, that will perform an expedited evaluation of the CITY’s
concerns and DEVELOPER’s responses thereto; said expedited review shall be
completed within sixty (60) days of DEVELOPER’s demand for a review. If CITY
refuses to accept and implement the conclusions and recommendations of the
neutral third party, DEVELOPER’s sole obligation related to the Community Park
shall be to assign the Community Park Construction Drawings to CITY and to pay
applicable Development Fee fees subject to credits for DEVELOPER’s cost in
preparing the Community Park Construction Drawings. CITY’s failure to provide
DEVELOPER a Community Park Contract Notice within fifteen (15) days of
delivery shall be deemed CITY’s approval of the Community Park Selected
Contract, so long as concurrent with DEVELOPER’s delivery of the proposed
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Community Park Selected Contract (and any revisions thereto) to CITY,
DEVELOPER include a cover letter that states in the first paragraph as follows:
“IMPORTANT, DELIVERY OF THIS CONTRACT FOR CITY REVIEW IS
SUBJECT TO SPECIFIC OBLIGATION IN SECTION 6.2.1(c) OF THE
LEGADO DEVELOPMENT AGREEMENT. SPECIFICALLY, IF CITY FAILS
TO EITHER APPROVE OR REJECT THE ATTACHED CONTRACT WITHIN
15 DAYS OF THE RECEIPT OF THIS LETTER, CITY WILL BE DEEMED
TO HAVE APPROVED THE CONTRACT.” For the avoidance of doubt, nothing
in this Section shall require that the CITY contribute any general funds or other
funds (except as specified in the Reimbursement Agreement for the Community
Park) toward the Community Park.
(d) Completion of Community Park. The Community Park, except for
the Community Center, shall be completed prior to the issuance of the certificate of
occupancy for the 500th Project dwelling unit (or final inspection if no certificates
of occupancies are issued for dwelling units). For purposes of this subsection,
“completed” means the Community Park shall be open to the public after passing
all required inspections and completing a 90-day maintenance and landscape
establishment period. CITY shall promptly grant all required approvals and
conduct all necessary inspections related to the Community Park. CITY’s
unreasonable delay in making an approval or inspection related to the Community
Park shall not serve as a basis for CITY in delaying the filing or recordation of any
Project final map, issuing a building permit, or issuing a certificate of occupancy.
(e) Community Center Construction Drawings. DEVELOPER shall
rely on the Community Park Plot Plan to prepare and obtain approval from CITY
of the Community Center Construction Drawings prior to 600th certificate of
occupancy for a Project dwelling unit (or final inspection if no certificates of
occupancies are issued for dwelling units). The Community Center Construction
Drawings shall substantially conform to the design elements of the Community
Park Plot Plan; no substantial deviation from the design elements of the Community
Park Plot Plan shall be permitted unless mutually agreed upon by CITY and
DEVELOPER. CITY’s approval of the Community Center Construction Drawings
shall be subject to CITY’s timely review and approval; such approval shall not be
unreasonably withheld, conditioned or delayed.
(f) Review of Community Center Bid. Prior to entering into a
construction contract for the Community Center, DEVELOPER shall deliver to
CITY DEVELOPER’s selected contractor for the Community Center Selected
Contract, which, when combined with a fifteen percent (15%) contingency and all
other categories of Actual Costs of Construction, shall not exceed the amount
specified as the Project Cost for the Community Center in Exhibit F-3 (as adjusted
in the manner required by Exhibit F-4). CITY shall have fifteen (15) days from
the delivery of the Community Center Selected Contract to provide the Community
Center Contract Notice, which will indicate, in its reasonable discretion, CITY’s
acceptance or rejection of the Community Center Selected Contract. CITY’s
acceptance or rejection of the bid shall be based on (i) commercially reasonable
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considerations that are consistent with CITY’s historic practices and/or facts or
concerns disclosed upon a reasonable review of the bid documents, or (ii) concern
that the costs of the Community Center will exceed DEVELOPER’s obligations
under this Agreement, thereby resulting in a potential financial exposure to the
CITY. If CITY rejects the Community Center Selected Contract, it shall identify
reasonable requested changes in such contract in the Community Center Contract
Notice (including, without limitations, requests to modify or value engineer park
features to reduce the overall cost as necessary to remove any financial exposure of
CITY) and DEVELOPER shall make reasonable efforts to obtain a revised bid that
addresses the issues identified in the Community Park Contract Notice and submit
the same to the CITY. CITY shall have fifteen (15) days from the delivery of the
revised bid to approve or reject the revised bid in its reasonable discretion. If CITY
rejects the revised Community Center Selected Contract and any revised bid, then
DEVELOPER may either make further modifications to address CITY’s concerns,
or may demand the engagement of a neutral third party, selected upon the mutual
agreement of the Parties, that will perform an expedited evaluation of the CITY’s
concerns and DEVELOPER’s responses thereto; said expedited review shall be
completed within sixty (60) days of DEVELOPER’s demand for a review. If CITY
refuses to accept and implement the conclusions and recommendations of the
neutral third party, DEVELOPER’s sole obligation related to the Community
Center shall be to assign the Community Center Construction Drawings to CITY
and to pay applicable Development Fee fees subject to credits for DEVELOPER’s
cost in preparing the Community Center Construction Drawings. CITY’s failure
to provide DEVELOPER a Community Center Contract Notice within fifteen (15)
days of delivery shall be deemed CITY’s approval of the Community Center
Selected Contract, so long as concurrent with DEVELOPER’s delivery of the
proposed Community Center Selected Contract (and any revisions thereto) to
CITY, DEVELOPER includes a cover letter that states in the first paragraph as
follows: “IMPORTANT, DELIVERY OF THIS CONTRACT FOR CITY
REVIEW IS SUBJECT TO SPECIFIC OBLIGATION IN SECTION 6.2.1(f) OF
THE LEGADO DEVELOPMENT AGREEMENT. SPECIFICALLY, IF CITY
FAILS TO EITHER APPROVE OR REJECT THE ATTACHED CONTRACT
WITHIN 15 DAYS OF THE RECEIPT OF THIS LETTER, CITY WILL BE
DEEMED TO HAVE APPROVED THE CONTRACT”. For the avoidance of
doubt, nothing in this Section shall require that the CITY contribute any general
funds or other funds (except as specified in the Reimbursement Agreement for the
Community Center) toward the Community Center.
(g) Completion of Community Center. The Community Center shall be
completed prior to the issuance of the certificate of occupancy for the 750th Project
dwelling unit (or final inspection if no certificates of occupancies are issued for
dwelling units). For purposes of this subsection, “completed” means the
Community Center shall be open to the public after passing all required inspections.
CITY shall promptly grant all required approvals and conduct all necessary
inspections related to the Community Center. City’s unreasonable delay in making
an approval or inspection related to the Community Center shall not serve as a basis
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for CITY in delaying the filing or recordation of any Project final map, issuing a
building permit, or issuing a certificate of occupancy.
6.2.2 Tentative Tract Map No. 37408 Neighborhood Park and Paseo Legado
West Improvements.
(a) Plot Plan. Prior to the issuance of the first certificate of occupancy
for a Project dwelling unit in Planning Areas 1, 2, 3, or 4 of Tentative Tract Map
No. 37408 (or final inspection if no certificates of occupancies are issued for
dwelling units), DEVELOPER shall prepare and obtain approval from CITY of
37408 Park Plot Plans for the 37408 Park Improvements consistent with the design
and improvements set forth in the Specific Plan, Tentative Tract Map No. 37408,
and associated landscape plans. City’s approval of the 37408 Park Plot Plans shall
not be unreasonably withheld, conditioned, or delayed.
(b) Construction Drawings. DEVELOPER shall rely on the 37408 Park
Plot Plan to prepare and obtain approval from CITY of the 37408 Park Construction
Drawings prior to 70th certificate of occupancy for a Project dwelling unit in
Planning Areas 1, 2, 3, and 4 of Tentative Tract Map No. 37408 (or final inspection
if no certificates of occupancies are issued for dwelling units). The 37408 Park
Construction Drawings shall substantially conform to the design elements of the
37408 Park Plot Plan; no substantial deviation from the design elements of the
37408 Park Plot Plan shall be permitted unless mutually agreed upon by CITY and
DEVELOPER. The 37408 Park Construction Drawings shall be subject to CITY’s
timely review and approval; such approval shall not be unreasonably withheld,
conditioned or delayed.
(c) Review of Bid. Prior to entering into a construction contract for the
37408 Park Improvements, DEVELOPER shall deliver to CITY DEVELOPER’S
37408 Park Selected Contract which, when combined with a fifteen percent (15%)
contingency and all other categories of Actual Costs of Construction, shall not
exceed the amount specified as the Project Cost for the 37408 Park and the Paseo
Legado West Improvements in Exhibit F-3. CITY shall have fifteen (15) days
from the delivery of the 37408 Park Selected Contract to approve or reject the
37408 Park Selected Contract through the delivery of the 37408 Park Contract
Notice. CITY’s acceptance or rejection of the 37408 Park Selected Contract shall
be based on (i) commercially reasonable considerations that are consistent with
CITY’s historic practices and/or facts or concerns disclosed upon a reasonable
review of the bid documents, or (ii) concern that the costs of the 37408 Park
Improvements will exceed DEVELOPER’s obligations under this Agreement,
thereby resulting in a potential financial exposure to the CITY. If CITY 37408
Park Selected Contract, it shall identify reasonable requested changes in such
contract in the 37408 Contract Notice (including, without limitations, requests to
modify or value engineer park features to reduce the overall cost as necessary to
remove any financial exposure of CITY) and DEVELOPER shall make reasonable
efforts to obtain a revised bid that addresses the issues identified in the 37408 Park
Contract Notice and submit the same to the CITY. CITY shall have fifteen (15)
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days from the delivery of the revised bid to approve or reject the revised bid in its
reasonable discretion. If CITY rejects the revised 37408 Park Selected Contract
and any revised bid, then DEVELOPER may either make further modifications to
address CITY’s concerns, or may demand the engagement of a neutral third party,
selected upon the mutual agreement of the Parties, that will perform an expedited
evaluation of the CITY’s concerns and DEVELOPER’s responses thereto; said
expedited review shall be completed within sixty (60) days of DEVELOPER’s
demand for a review. If CITY refuses to accept and implement the conclusions and
recommendations of the neutral third party, DEVELOPER’s sole obligation related
to the 37408 Park shall be to assign the 37408 Park Construction Drawings to CITY
and to pay applicable Development Fee fees subject to credits for DEVELOPER’s
cost in preparing the 37408 Park Construction Drawings. CITY’s failure to provide
DEVELOPER a 37408 Park Contract Notice within fifteen (15) days of delivery
shall be deemed CITY’s approval of the 37408 Park Selected Contract, so long as
concurrent with DEVELOPER’s delivery of the proposed 37408 Park Selected
Contract (and any revisions thereto) to CITY DEVELOPER includes a cover letter
that states in the first paragraph as follows: “IMPORTANT, DELIVERY OF THIS
CONTRACT FOR CITY REVIEW IS SUBJECT TO SPECIFIC OBLIGATION
IN SECTION 6.2.2(c) OF THE LEGADO DEVELOPMENT AGREEMENT.
SPECIFICALLY, IF CITY FAILS TO EITHER APPROVE OR REJECT THE
ATTACHED CONTRACT WITHIN 15 DAYS OF THE RECEIPT OF THIS
LETTER, CITY WILL BE DEEMED TO HAVE APPROVED THE
CONTRACT”. For the avoidance of doubt, nothing in this Section shall require
that the CITY contribute any general funds or other funds (except as specified in
the Reimbursement Agreement for the 37408 Park Improvements) toward the
37408 Park Improvements.
(d) Completion of Improvements. The 37408 Park Improvements shall
be completed prior to the issuance of the certificate of occupancy for the 140th
Project dwelling unit in Planning Areas 1, 2, 3, and 4 of Tentative Tract Map
No. 37408 (or final inspection if no certificates of occupancies are issued for
dwelling units) unless the Director of Public Works approves a later completion
date to address construction compatibility and safety issues related to occupied
residences. For purposes of this subsection, “completed” means the 37408 Park
Improvements shall be open to the public after passing all required inspections and
completing a 90-day maintenance and landscape establishment period. CITY shall
promptly grant all required approvals and conduct all necessary inspections related
to the 37408 Park Improvements. City’s unreasonable delay in making an approval
or inspection related to the 37408 Park Improvements shall not serve as a basis for
CITY in delaying the filing or recordation of any Project final map, issuing a
building permit, or issuing a certificate of occupancy.
6.2.3 Tentative Tract Map (No. 37409) Neighborhood Park and Paseo Legado
East Improvements
(a) Plot Plan. Prior to the issuance of the first certificate of occupancy
for a Project dwelling unit in Planning Areas 8, 9, 10, or 11 of Tentative Tract Map
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No. 37409 (or final inspection if no certificates of occupancies are issued for
dwelling units), DEVELOPER shall prepare and obtain approval from CITY of
37409 Park Plot Plans for the 37409 Park Improvements consistent with the design
and improvements set forth in the Specific Plan Tentative Tract Map No. 37409
and associated landscape plans. City’s approval of the 37409 Park Plot Plans shall
not be unreasonably withheld, conditioned, or delayed.
(b) Construction Drawings. DEVELOPER shall rely on the 37409 Park
Plot Plan to prepare and obtain approval from CITY of the 37409 Park Construction
Drawings prior to 70th certificate of occupancy for a Project dwelling unit in
Planning Areas 8, 9, 10, or 11 of Tentative Tract Map No. 37409 (or final inspection
if no certificates of occupancies are issued for dwelling units). The 37409 Park
Construction Drawings shall substantially conform to the design elements of the
37409 Park Plot Plan; no substantial deviation from the design elements of the
37409 Park Plot Plan shall be permitted unless mutually agreed upon by CITY and
DEVELOPER. The 34709 Park Construction Drawings shall be subject to CITY’s
timely review and approval; such approval shall not be unreasonably withheld,
conditioned or delayed.
(c) Review of Bid. Prior to entering into a construction contract for the
37409 Park Improvements, DEVELOPER shall deliver to CITY DEVELOPER’S
37409 Park Selected Contract, which, when combined with a fifteen percent (15%)
contingency and all other categories of Actual Costs of Construction, shall not
exceed the amount specified as the Project Cost for the 37409 Park and the Paseo
Legado East Improvements in Exhibit F-3. CITY shall have fifteen (15) days from
the delivery of the 37409 Park Selected Contract to approve or reject the 37409
Park Selected Contract through the delivery of the 37408 Park Contract Notice.
CITY’s acceptance or rejection of the 37409 Park Selected Contract shall be based
on (i) commercially reasonable considerations that are consistent with CITY’s
historic practices and/or facts or concerns disclosed upon a reasonable review of
the bid documents, or (ii) concern that the costs of the 37409 Park Improvements
will exceed DEVELOPER’s obligations under this Agreement, thereby resulting in
a potential financial exposure to the CITY. If CITY refuses to accept the 37409
Park Selected Contract, it shall identify reasonable requested changes in such
contract in the 37409 Contract Notice (including, without limitations, requests to
modify or value engineer park features to reduce the overall cost as necessary to
remove any financial exposure of CITY) and DEVELOPER shall make reasonable
efforts to obtain a revised bid that addresses the issues identified in the 37409 Park
Contract Notice and submit the same to the CITY. CITY shall have fifteen (15)
days from the delivery of the revised bid to approve or reject the revised bid in its
reasonable discretion. If CITY rejects the revised 37409 Park Selected Contract
and any revised bid, then DEVELOPER may either make further modifications to
address CITY’s concerns, or may demand the engagement of a neutral third party,
selected upon the mutual agreement of the Parties, that will perform an expedited
evaluation of the CITY’s concerns and DEVELOPER’s responses thereto; said
expedited review shall be completed within sixty (60) days of DEVELOPER’s
demand for a review. If CITY refuses to accept and implement the conclusions and
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recommendations of the neutral third party, DEVELOPER’s sole obligation related
to the 37409 Park shall be to assign the 37409 Park Construction Drawings to CITY
and to pay applicable Development Fee fees subject to credits for DEVELOPER’s
cost in preparing the 37409 Park Construction Drawings. CITY’s failure to provide
DEVELOPER a 37409 Park Contract Notice within fifteen (15) days of delivery
shall be deemed CITY’s approval of the 37409 Park Selected Contract, so long as
concurrent with DEVELOPER’s delivery of the proposed 37409 Park Selected
Contract (and any revisions thereto) to CITY DEVELOPER includes a cover letter
that states in the first paragraph as follows: “IMPORTANT, DELIVERY OF THIS
CONTRACT FOR CITY REVIEW IS SUBJECT TO SPECIFIC OBLIGATION
IN SECTION 6.2.3(c) OF THE LEGADO DEVELOPMENT AGREEMENT.
SPECIFICALLY, IF CITY FAILS TO EITHER APPROVE OR REJECT THE
ATTACHED CONTRACT WITHIN 15 DAYS OF THE RECEIPT OF THIS
LETTER, CITY WILL BE DEEMED TO HAVE APPROVED THE
CONTRACT”. For the avoidance of doubt, nothing in this Section shall require
that the CITY contribute any general funds or other funds (except as specified in
the Reimbursement Agreement for the 37409 Park Improvements) toward the
37409 Park Improvements.
(d) Completion of Improvements. The 37409 Park Improvements shall
be completed prior to the issuance of the certificate of occupancy for the 140th
Project dwelling unit in Planning Areas 8, 9, 10, and 11 of Tentative Tract Map
No. 37409 (or final inspection if no certificates of occupancies are issued for
dwelling units) unless the Director of Public Works approves a later completion
date to address construction compatibility and safety issues related to occupied
residences. For purposes of this subsection, “completed” means the 37409 Park
Improvements shall be open to the public after passing all required inspections and
completing a 90-day maintenance and landscape establishment period. CITY shall
promptly grant all required approvals and conduct all necessary inspections related
to the 37409 Park Improvements. CITY’s unreasonable delay in making an
approval or inspection related to the 37409 Park shall not serve as a basis for CITY
in delaying the filing or recordation of any Project final map, issuing a building
permit, or issuing a certificate of occupancy.
7. FINANCING FOR PUBLIC IMPROVEMENTS AND SERVICES.
7.1 [RESERVED]
7.2 Formation of Infrastructure, Business Improvement, and/or Maintenance
Assessment District(s). CITY may request that DEVELOPER agree to annex the Property into
the Assessment District. DEVELOPER, on behalf of itself and its successors in interest, hereby
irrevocably consents to the annexation of the Property into the Assessment District and waives any
and all right of protest or objection with respect to such annexation. DEVELOPER agrees to
cooperate with CITY and take all necessary action to accomplish the annexation of the Property
into the Assessment District, for the purposes of funding maintenance services for the Project.
DEVELOPER agrees to cooperate in the imposition of assessments related to the Assessment
District, including without limitation, if required by CITY, the submission of a ballot to CITY by
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DEVELOPER (or its successors in interest) in favor of the annexation into the Assessment District
and the levying of such assessments so long as the impact of such assessments does not fall
disproportionately on the Property as compared to the benefits accruing to the Property. Nothing
herein shall be construed as a commitment by CITY to annex the Property into the Assessment
District or as a limitation on CITY’s legislative discretion with respect thereto. DEVELOPER has
agreed to the financing provisions set forth in this Section 7.2 and to perform the obligations
hereunder in exchange for the consideration and benefits provided to DEVELOPER by CITY
under this Agreement, including without limitation the vested right to develop the Property in
accordance with Section 3.1.
7.3 Covenant Regarding Assessment District. For avoidance of doubt, the Parties
agree that this Agreement includes and constitutes a covenant not to contest the annexation into
the Assessment District as set forth in Paragraph 7.2. The covenant shall be binding upon
successive owners of the Property, or any portion thereof, and shall also be binding upon any and
all homeowners associations that have covenants, conditions, and restrictions governing the use of
the Property.
8. DEFAULT AND REMEDIES.
8.1 Specific Performance Available. The Parties acknowledge that money damages
and remedies at law generally are inadequate and specific performance is a particularly appropriate
remedy for the enforcement of this Agreement and should be available to DEVELOPER and CITY
because the size, nature and scope of the Project, make it impractical or impossible to restore the
Property to its natural condition once implementation of this Agreement has begun. After such
implementation, DEVELOPER and/or CITY may be foreclosed from other choices they may have
had to utilize or condition the uses of the Property or portions thereof. DEVELOPER and CITY
have invested significant time and resources in performing extensive planning and processing for
the Project and in negotiating and agreeing to the terms of this Agreement and will be investing
even more significant time and resources in implementing the Project in reliance upon the terms
of this Agreement, such that it would be extremely difficult to determine the sum of money which
would adequately compensate DEVELOPER and/or CITY for such efforts. The Parties therefore
agree that specific performance shall be the sole remedy available for a breach of this Agreement.
8.2 Money Damages Unavailable. DEVELOPER and CITY shall not be entitled to
any monetary compensation, whether characterized as money damages or injunctive or other relief
compelling the payment of money, including attorney fees, from the other Party by reason of,
arising out of, based upon, or relating to (a) the interpretation, enforcement, performance, or breach
of any provision of this Agreement, or (b) the respective rights or duties of any of the Parties under
the Development Approvals, the Subsequent Development Approvals, any Development
Requirement, the Land Use Regulations, or the Subsequent Land Use Regulations.
Notwithstanding the foregoing, CITY may recover from DEVELOPER any fees owed under or
pursuant to this Agreement; and DEVELOPER may recover from CITY the right to exercise any
credits and the right to receive any reimbursements under or pursuant to this Agreement.
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8.3 Termination of Agreement.
8.3.1 Termination of Agreement for Default of DEVELOPER. CITY in its
discretion may terminate this Agreement for any failure of Default by DEVELOPER;
provided, however, CITY may terminate this Agreement pursuant to this Section only after
following the procedure set forth in Section 4.3 and thereafter providing written notice to
DEVELOPER of the Default setting forth the nature of the Default and the actions, if any,
required by DEVELOPER to cure such Default and, where the Default can be cured,
DEVELOPER has failed to take such actions and cure such Default within thirty (30) days
after the effective date of such notice or, in the event that such Default cannot be cured
within such thirty (30) day period but can be cured within a longer time, as reasonably
determined by the CITY in its sole discretion, DEVELOPER has failed to commence the
actions necessary to cure such Default within such thirty (30) day period and to diligently
proceed to complete such actions and cure such Default.
8.3.2 Termination of Agreement for Default of CITY. DEVELOPER in its
discretion may terminate this Agreement for any Default by CITY; provided, however,
DEVELOPER may terminate this Agreement pursuant to this Section only after providing
written notice by DEVELOPER to the CITY of the Default setting forth the nature of the
Default and the actions, if any, required by CITY to cure such Default and, where the
Default can be cured, the failure of CITY to cure such Default within thirty (30) days after
the effective date of such notice or, in the event that such Default cannot be cured within
such thirty (30) day period, the failure of CITY to commence to cure such Default within
such thirty (30) day period and to diligently proceed to complete such actions and to cure
such Default.
8.3.3 Rights and Duties Following Termination. Upon the termination of this
Agreement, no Party shall have any further right or obligation hereunder except with
respect to (i) any obligations to have been performed prior to said termination, or (ii) any
Default in the performance of the provisions of this Agreement which has occurred prior
to said termination.
9. INDEMNIFICATION AND THIRD PARTY LITIGATION.
9.1 Indemnities by Developer.
9.1.1 General Indemnity. DEVELOPER agrees to indemnify, protect, defend,
and hold harmless the CITY Parties from and against any and all Claims which may arise,
directly or indirectly, from the acts, omissions, or operations of DEVELOPER or
DEVELOPER’s agents, contractors, subcontractors, agents, or employees pursuant to this
Agreement, but excluding any loss resulting solely from the intentional or active
negligence of the CITY Parties. Notwithstanding the foregoing, (i) CITY shall have the
right to select and retain counsel to defend any such action or actions and DEVELOPER
shall pay the cost thereof; provided, however, that the Parties agree to attempt in good faith
to coordinate and/or consolidate their defense of any Claim that is subject to the
indemnification provisions of this Section; and (ii) this indemnity obligation shall not apply
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to any Claim for which DEVELOPER has provided a separate indemnity to the CITY by
way of a separate instrument mutually accepted by the Parties.
9.1.2 Prevailing Wage Indemnity and Notice to Developer of Labor Code Section
1781. In connection with, but without limiting, the indemnification obligations set forth in
Section 9.1.1, DEVELOPER hereby expressly acknowledges and agrees that the CITY is
not by this Agreement affirmatively representing, and has not previously affirmatively
represented, to the DEVELOPER or any contractor(s) of DEVELOPER for any
construction on or development on or adjacent to the Property, in writing or otherwise, in
a call for bids or any agreement or otherwise, that any work to be undertaken on the
Property, as may be referred to in this Agreement or construed under this Agreement, is
not a “public work,” as defined in Section 1720 of the Labor Code, or under any similar
existing or hereinafter enacted law or regulation. The Parties agree that, in connection with
the Development and construction (as defined by Applicable Law) of the Project,
including, without limitation, any and all public works (as defined by Applicable Law),
DEVELOPER shall bear all risks of payment or non-payment of prevailing wages under
California law and/or federal law and/or the implementation of Labor Code Section 1781,
as the same may be amended from time to time, and/or any other similar law. With respect
to the foregoing, DEVELOPER shall be solely responsible, expressly or impliedly and
legally and financially, for determining and effectuating compliance with all applicable
federal, state and local public works requirements, prevailing wage laws, and labor laws
and standards, and CITY makes no representation, either legally and/or financially, as to
the applicability or non-applicability of any federal, state and local laws to the construction
of the Project as it may be amended pursuant hereto or otherwise.
Without limiting the foregoing, DEVELOPER shall indemnify, protect, defend and hold
harmless the CITY Parties, with counsel reasonably acceptable to CITY, from and against
“increased costs” as defined in California Labor Code Section 1781 (including CITY’s
reasonable attorneys’ fees, court and litigation costs, and fees of expert witnesses) in
connection with the Development or construction (as defined by Applicable Law) of or on
the Property, that results or arises in any way from (1) noncompliance by DEVELOPER
of the requirement, if and to the extent applicable, to pay federal or state prevailing wages
and hire apprentices, or (2) failure by DEVELOPER to provide any required disclosure or
identification as required by California Labor Code Sections 1720 et seq. including without
limitation specifically Section 1781, as the same may be amended from time to time. The
foregoing indemnity shall survive the expiration or earlier termination of this Agreement.
9.2 Indemnification Procedures. Wherever this Agreement requires DEVELOPER
to indemnify any CITY Party:
9.2.1 Prompt Notice. CITY shall promptly notify DEVELOPER in writing of
any Claim.
9.2.2 Cooperation. CITY shall reasonably cooperate with DEVELOPER’s
defense, provided DEVELOPER reimburses CITY’s actual reasonable out of pocket
expenses (including Legal Costs) of such cooperation.
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9.2.3 Settlement. Any settlement shall require the prior written consent of both
CITY and DEVELOPER, which consent shall not be unreasonably withheld if the
settlement is objectively financially reasonable. If CITY refuses to authorize a settlement
that is objectively financially reasonable, it shall be responsible for Costs and damages of
the Claim that are in excess of those incurred through the date of the CITY’s rejection of
the proposal, plus the amount of the proposal.
9.2.4 CITY Cooperation. CITY shall reasonably cooperate with DEVELOPER’s
defense, provided DEVELOPER reimburses CITY for its actual reasonable out of pocket
expenses (including Legal Costs) of such cooperation.
9.2.5 Insurance Proceeds. DEVELOPER’s obligations shall be reduced by net
insurance proceeds CITY actually receives for the matter giving rise to indemnification.
9.3 Third Party Litigation. CITY shall promptly notify DEVELOPER of any Claim
against CITY and/or any CITY Party, and/or any other administrative or judicial action to
challenge, set aside, void, annul, limit or restrict the approval and continued implementation and
enforcement of this Agreement. DEVELOPER agrees to reimburse the CITY for its reasonable
Legal Costs incurred in connection with the defense of the Claim and to fully defend and indemnify
CITY for all costs of defense and/or judgment obtained in any such action or proceeding. CITY
and DEVELOPER agree to cooperate in the defense of such action(s).
9.4 Challenge to Enforceability of Specific Obligations. The Parties have
determined in good faith that each of the provisions of this Agreement are valid and enforceable.
Notwithstanding, if a court of competent jurisdiction finds invalid or unenforceable any provision
of this Agreement purporting to supersede or otherwise render ineffectual any federal, state, or
local law or regulation in existence as of the Effective Date, DEVELOPER shall perform its
obligations under such law or regulation as it existed on the Effective Date, or as otherwise
specifically directed by a court of competent jurisdiction.
10. MORTGAGEE PROTECTION.
The Parties hereto agree that this Agreement shall not prevent or limit DEVELOPER from
encumbering the Property or any portion thereof or any improvement thereon by any mortgage,
deed of trust or other security device securing financing with respect to the Property. CITY
acknowledges that the lenders providing such financing may require certain Agreement
interpretations and modifications and agrees upon request, from time to time, to meet with
DEVELOPER and representatives of such lenders to negotiate in good faith any such request for
interpretation or modification. Subject to compliance with Applicable Laws, CITY will not
unreasonably withhold its consent to any such requested interpretation or modification provided
CITY determines such interpretation or modification is consistent with the intent and purposes of
this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and
privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement
shall defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by law.
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(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee has submitted a request in writing
to the CITY in the manner specified herein for giving notices, shall be entitled to
receive written notification from CITY of any Default by DEVELOPER in the
performance of DEVELOPER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a
copy of any notice of Default given to DEVELOPER under the terms of this
Agreement, CITY shall make a good faith effort to provide a copy of that notice to
the Mortgagee within ten (10) days of sending the notice of Default to
DEVELOPER. The Mortgagee shall have the right, but not the obligation, to cure
the Default during the remaining cure period allowed such Party under this
Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any
part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu
of such foreclosure, shall take the Property, or part thereof, subject to the terms of
this Agreement. However, 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 to develop the Property or receive any benefit provided under this
Agreement unless it first agrees in writing to fully comply with this Agreement and
the Development Plan.
11. MISCELLANEOUS PROVISIONS.
11.1 Option to Terminate Due to Litigation. If a lawsuit is filed challenging the
Development Approvals or the ordinance approving this Agreement within the time periods for
the filing of such lawsuits under the California Environmental Quality Act (Public Resources Code
section 21000 et seq.) or the State Planning and Zoning Law (Government Code section 65000 et
seq.), then the Parties shall meet and confer concerning the potential impact of the lawsuit on this
Agreement and the Development of the Project. Within thirty (30) days of such meeting, if
DEVELOPER determines that such litigation may have an unacceptable adverse impact on the
Project or its rights under this Agreement, DEVELOPER may in its discretion terminate this
Agreement by sending CITY a written notice of such termination, and the Parties shall be relieved
of any further obligations to this Agreement, to the extent that such obligations have not been
performed or have been incurred prior to such termination. DEVELOPER acknowledges and
agrees that if this Agreement is terminated, other than by court order, CITY shall have the option
to restore the General Plan, the Specific Plan, and zoning to the condition that existed prior to the
adoption of the Development Approvals or ordinance approving this Agreement. In no event,
however, shall DEVELOPER bring or cause to bring a lawsuit in any court against CITY to
invalidate any provision in this Agreement that would result in the ability of DEVELOPER to keep
the Development Approvals without having to comply with the terms and conditions of this
Agreement.
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11.2 Recordation of Agreement. This Agreement shall be recorded with the County
Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code.
Amendments approved by the Parties, and any termination, shall be similarly recorded.
11.3 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein. No testimony or evidence of any such representations, understandings
or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine
the terms or conditions of this Agreement.
11.4 Estoppel Certificate. Any Party hereunder may, at any time, deliver written notice
to any other Party requesting such Party to certify in writing that, to the best knowledge of the
certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Party;
(ii) this Agreement has not been amended or modified either orally or in writing, or if so amended,
identifying the amendments; and (iii) the requesting Party is not in Default in the performance of
its obligations set forth in this Agreement or, if in Default, to describe therein the nature and
amount of any such Defaults. A Party receiving a request hereunder shall execute and return such
Certificate within thirty (30) days following the receipt thereof. Any third party including a
Mortgagee shall be entitled to rely on the Certificate.
11.5 Severability. If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions of this Agreement shall continue in full force and effect, unless and to the extent the
rights and obligations of any Party has been materially altered or abridged by such holding.
11.6 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of California.
Any dispute between CITY and DEVELOPER over this Agreement shall be filed, and tried, in the
Superior Court of the County of Riverside. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and purposes of the
Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against
the drafting Party or in favor of CITY shall not be employed in interpreting this Agreement, each
of the Parties having been represented by counsel in the negotiation and preparation hereof.
11.7 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
11.8 Singular and Plural. As used herein, the singular of any word includes the plural.
11.9 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
11.10 Waiver. Failure of a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon
the Default of the other Party, shall not constitute a waiver of such Party’s right to insist and
demand strict compliance by the other Party with the terms of this Agreement thereafter.
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11.11 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit for the Parties and their successors and assigns. No other Person shall
have any right of action based upon any provision of this Agreement.
11.12 Force Majeure. Subject to the limitations set forth below, the Term of this
Agreement and the time within which any Party shall be required to perform any act under this
Agreement shall be extended by a period of time equal to the number of days during which
performance of such act is delayed unavoidably and beyond the reasonable control of the Party
seeking the delay by: strikes; acts of God; unusually severe weather, but only to the extent that
such weather or its effects (including, without limitation, dry out time) result in delays that
cumulatively exceed twenty (20) days for any winter season occurring after commencement of
construction of the Project; failure or inability to secure materials or labor in a commercially
reasonable manner by reason of a new priority or new regulations or order of any governmental or
regulatory body; changes in local, state, or federal laws or regulations that render performance
commercially infeasible; any development moratorium or any action of other public agencies that
regulate land use, development, or the provision of services and that unreasonably prevents,
prohibits, or delays construction of the Project due to circumstances beyond DEVELOPER’s
control, including without limitation any extension authorized by Government Code Section
66463.5(d); enemy action; civil disturbances; wars; terrorist acts; fire; unavoidable casualties;
referenda; or mediation, arbitration, litigation, or other administrative or judicial proceeding
commenced by a third party and involving the Development Approvals or Subsequent
Development Approvals or this Agreement (each a “Force Majeure Delay”). An extension of time
shall be for the period of the enforced delay and shall commence to run from the time of the
commencement of the cause, if written notice by the Party claiming such extension is sent to the
other Parties within thirty (30) days of the commencement of the cause. If written notice is sent
after such thirty (30) day period, then the extension shall commence to run no sooner than thirty
(30) days prior to the giving of such notice. The cumulative extensions of time for Force Majeure
Delays for individual performance obligations hereunder shall not exceed five (5) years, and the
cumulative extensions of the expiration of this Agreement as a result of Force Majeure Delays
shall not exceed two (2) years, unless otherwise agreed to in writing in accordance with Section
11.12.
11.13 Extension of Time Limits. The time limits set forth in this Agreement may be
extended by mutual consent in writing of the Parties without amendment to this Agreement.
Except as otherwise specified in this Agreement, each Party may agree or refuse to agree to any
extension of time in its sole and absolute discretion.
11.14 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent performance by the Party benefited thereby
of the covenants to be performed hereunder by such benefited Party.
11.15 Successors in Interest. As provided in Section 65868.5 of the Government Code,
and except as otherwise provided in this Agreement, all of the terms, provisions, covenants and
obligations contained in this Agreement shall be binding upon, and inure to the benefit of, CITY
and DEVELOPER, and their respective successors and assigns. In no event shall this Agreement
impose obligations on Individual Unit Owners. From and after the date that certificates of
occupancy have been issued (or a final inspection is completed when no certificate of occupancy
35
is required) for all buildings and improvements to be constructed on a parcel within the Project (or
with respect to a single-family dwelling unit on a single-family residential lot), such parcel shall
not be burdened with the obligations of DEVELOPER under this Agreement.
11.16 Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if each of the Parties
had executed the same instrument.
11.17 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining
the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the
County of Riverside, State of California, and the Parties hereto waive all provisions of law
providing for the filing, removal or change of venue to any other court.
11.18 Project as a Private Undertaking. It is specifically understood and agreed by and
between the Parties hereto that the Development of the Project is a private Development, that
neither Party is acting as the agent of the 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. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and DEVELOPER is that of a government entity
regulating the Development of private property and the owner of such property.
11.19 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and writings and take any actions as may be reasonably necessary under the terms of this
Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or
consummate the transactions contemplated by this Agreement.
11.20 Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the exercise by CITY of its power of eminent domain.
11.21 Amendments in Writing/Cooperation. This Agreement may be amended only
by written consent of both Parties specifically approving the amendment and in accordance with
the Government Code provisions for the amendment of Development Agreements. The Parties
shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent
and application of this Agreement, and shall treat any such proposal on its own merits, and not as
a basis for the introduction of unrelated matters.
11.22 Authority to Execute. The Person or Persons executing this Agreement on behalf
of DEVELOPER warrants and represents that he/they have the authority to execute this Agreement
on behalf of his/their corporation, partnership or business entity and warrants and represents that
he/they has/have the authority to bind DEVELOPER to the performance of its obligations
hereunder.
36
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year first set forth above.
CITY: CITY OF MENIFEE
By
Mayor
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
By
City Attorney
(SEAL)
DEVELOPER: BLC FLEMING LLC, a
Delaware limited liability
company.
By
Title
By
Title
[ALL SIGNATURES SHALL BE NOTARIZED. EXECUTION ON BEHALF OF ANY
CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
916/031858-0003
15029240.1 a05/03/20 EXHIBIT A – Page 1
EXHIBIT A
Legal Description of the Property
916/031858-0003
15029240.1 a05/03/20 EXHIBIT A – Page 2
916/031858-0003
15029240.1 a05/03/20 EXHIBIT A – Page 3
916/031858-0003
15029240.1 a05/03/20 EXHIBIT A – Page 4
916/031858-0003
15029240.1 a05/03/20 EXHIBIT A – Page 5
916/031858-0003 15029240.1 a05/03/20 EXHIBIT B – Page 1 EXHIBIT B Map Showing Property and its Location
916/031858-0003 15029240.1 a05/03/20 EXHIBIT B – Page 2
916/031858-0003
15029240.1 a05/03/20 EXHIBIT C – Page 1
EXHIBIT C
Development Plan
916/031858-0003
15029240.1 a05/03/20 EXHIBIT C – Page 2
Exhibit C
Development Plan
The Development Plan under the Agreement is the plan for the Development1 of the Property, as
set forth in and regulated by the Development Approvals, planning and zoning standards,
regulations, applicable conditions of approval, and criteria for the Development of the Property,
all as contained in the following:2
1. The Menifee General Plan
2. Legado Specific Plan (No. 2017-187), which establishes a specific land use plan,
designation of planning areas, development standards, architectural design
guidelines and landscape design guidelines for development of a maximum of
1,061 dwelling units and up to 225,000 square feet of freeway-oriented commercial
uses, with twenty-two (22) Planning Areas, 12.9 acres of community park, 7.9 acres
of linear and pocket parks, and additional features and amenities on the Property
3. Title 9, Planning and Zoning, of the Menifee Municipal Code, as amended by
Change of Zone No. 2017-188, which changes the zoning classification on the
Property from “Fleming Ranch Specific Plan Zone” to “Legado Specific Plan
Zone” to reflect the adopted Legado Specific Plan.
4. Menifee Municipal Code Chapter 8.26, Grading Regulations
5. Title 7, Subdivisions, of the Menifee Municipal Code
6. The Design Guidelines of the City of Menifee, adopted by the Menifee City Council
on April 15, 2020.
7. Tentative Tract Map No. 37408, which proposes a subdivision of approximately
149.6 gross acres into 475 single-family residential lots and __ lots for open space,
park, landscape, monumentation, drainage, and storm drain purposes with single-
family residential lots with minimum lot sizes (depending on Specific Plan
Planning Area) of between 5,000 square feet and 7,000 square feet.
8. Tentative Tract Map No. 37409, which proposes a subdivision of approximately
159.1 gross acres into 547 single-family residential lots and __ lots for park,
landscape, monumentation, drainage, and storm drain purposes, with single-family
1 All capitalized terms used in this Exhibit C shall have the meaning assigned to those terms in
the Legado Development Agreement, to which this Exhibit C is attached.
2 Under Section 3.2 of the Agreement, except as otherwise provided in the Agreement, those
portions of the items listed on Exhibit C that govern permitted uses of the Property, the density
and intensity of use of the Property, the maximum height and size of proposed buildings, and the
design, improvement and construction standards and specifications applicable to Development of
the Property, shall govern the Development of the Property.
916/031858-0003
15029240.1 a05/03/20 EXHIBIT C – Page 3
residential lots with minimum lot sizes (depending on Specific Plan Planning Area)
of 5,000 square feet and 7,000 square feet.
9. Tentative Tract Map No. 37391. Proposes a large-lot subdivision of the Property’s
approximately 331.01 gross acres into twenty-six (26) parcels for park,
commercial, roadway, and financing purposes, including one 12.9 acre community
park.
10. The Mitigation Measures identified in Exhibit D.
11. All other ordinances, resolutions, codes, rules, regulations, CITY adopted plans
(including, but not limited to, trail plans and park master plans) and official policies
of CITY adopted and effective on or before the Effective Date governing
Development and use of land, including, without limitation, the permitted use of
land, the density or intensity of use, subdivision requirements, the maximum height
and size of proposed buildings, the provisions for reservation or dedication of land
for public purposes, and the design, improvement and construction standards and
specifications applicable to the Development of the Property.
12. Variances, conditional use permits, master plans, public use permits, and plot plans
that constitute Subsequent Development Approvals.
COMPLETE COPIES OF THE DEVELOPMENT PLAN ARE ON FILE
WITH THE CITY CLERK.
916/031858-0003 15029240.1 a05/03/20 EXHIBIT D – Page 1 EXHIBIT D Mitigation Measures
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916/031858-0003 15029240.1 a05/03/20 EXHIBIT E – Page 1 EXHIBIT E Development Impact Fees
916/031858-0003 15029240.1 a05/03/20 EXHIBIT E – Page 2 “Exhibit E” Development Impact Fees 20203 Land Use Law Enf. Fire Circulation Storm Drainage Animal Shelter General Govt. Public Use Facilities Parks – Land Acqn. Parks – Imp. Master Planning And Nexus Analyses Library Facilities Total – Maximum Justified Residential Fee Per Dwelling Unit Single Family Unit $ 231 $ 614 $ 4,670 $ 1,036 $ 148 $ 1,021 $ 154 $ 215 $ 661 $ 23 $ 66 $8,839 Multi-Family Unit $ 169 $ 452 $ 3,261 $ 570 $ 109 $ 752 $ 113 $ 159 $ 487 $ 17 $ 48 $ 6,137 Senior/ Assisted Living $ 89 $ 239 $ 1,802 $ 570 $ 57 $ 398 $ 59 $ 84 $ 257 $ 9 $ 26 $ 3,590 Nonresidential Fee Per 1,000 Sq. Ft. Commercial / Retail $ 58 $ 428 $ 7,736 $ 735 $ 123 $ 262 $ 0 $ 0 $ 0 $ 5 $ 0 $ 9,347 Commercial / Service / Office $ 77 $ 560 $ 5,946 $ 259 $ 160 $ 342 $ 0 $ 0 $ 0 $ 6 $ 0 $ 7,350 Industrial / Business Park $ 29 $ 208 $ 3,941 $ 425 $ 59 $ 127 $ 0 $ 0 $ 0 $ 2 $ 0 $ 4,791 3 This exhibit represents the DIF fee schedule in effect for all use categories; however, the Project subject to the Development Agreement only includes single family residential uses.
916/031858-0003 15029240.1 a05/03/20 EXHIBIT F – Page 1 EXHIBIT F Estimated Excess Contributions
LEGADO - VTTM 37408 & 37409
Circulation Facilities - Calculation of Developer Excess Contributions in Development Agreement
Segment/Intersection From : To Project Cost 1,6 Subtotal Project Cost A - Total
Project Cost
B - Percent
Allocated to
DIF 1
C - Circulation
DIF Allocation
(A x B)
D - Project
Residential
Circulation DIF
Credit 4
E - Other Project
Residential
Circulation DIF
Reimbursed (C - D)7
F - Other Project
Nonresidential
DIF Reimbursed 5
G - Developer Excess
Contributions
(A - D - E - F)
Encanto Drive 2 Hotel to Rouse Rd. $1,305,500
Rouse Road Encanto Dr. to Myles Ct.$549,275
Rouse Road Myles Ct. to Dawson Rd.$1,955,000
Rouse Road Dawson Rd. to Antelope Rd.$1,731,375
Antelope Road 3 Chambers Ave. to Rouse Rd. $1,306,300
Chambers Avenue Encanto Dr. to School $1,715,625
Chambers Avenue School to Sherman Rd.$549,875
Chambers Avenue Sherman Rd. to Chatham Ln.$1,249,700
Chambers Avenue Chatham Ln. to Antelope Rd.$726,750
Sherman Road Chambers Ave. to Rouse Rd.$3,196,750
Encanto Dr./Rouse Rd.N/A $350,000
Encanto Dr./Chambers Ave.N/A $350,000
Sherman Rd./Rouse Rd.N/A $350,000
Sherman Rd./Chambers Ave.N/A $350,000
Reimbursable Circulation Facilities Project Total (D + E + F)
Notes:
1. From City of Menifee Development Impact Fee Study Update (DIFSU)Table 5.3: Traffic Project List & Table 5.4: Traffic Signal Project List
2. Based on 45% of construction cost due to shorter segment length than what is included in DIFSU Table 5.3.
3. Based on 26% of construction cost due to half width construction and shorter segment length than what is included in DIFSU Table 5.3.
4. Based on DIFSU Circulation Facilities Impact Fee of $4,670 per Single Family Dwelling x 1,022 Units, Nonresidential Fees were not included. Actual credit will be determined by then applicable fees and total number of project dwelling units
5. Based on DIFSU Circulation Facilities Impact Fee of $7,736 per 1,000sf x 225,000sf. Actual reimbursement will equal non-residential specific plan area fees collected by City during reimbursement period.
6. Developer shall bear any costs of improvements in excess of the amounts shown in this exhibit.
7. Total reimbursement will be capped by the difference between then applicable Circulation DIF Allocation and actual credit provided under D. Reimbursement will be funded by fees collected city-wide during reimbursement period.
8. Unless specifically defined in the Project’s Conditions of Approval, construction of the following facilities shall be completed as follows:
Traffic Signals at Sherman/Chambers and Sherman/Rouse – completed as part of Development Phase 2 as defined in the approved Traffic Impact Analysis
Offsite Encanto Improvement from Hotel to south of PA18 – completed as part of Infrastructure Phase 3, as defined and illustrated in Figure 3-15 of the Legado Specific Plan
$7,293,497
Exhibit F-1
$8,392,653$780,157 $1,740,600
$14,286,150
$1,400,000
$4,772,740$15,686,150 35.40%$5,552,897
LEGADO - VTTM 37408 & 37409
Storm Drain Facilities - Calculation of Developer Excess Contributions in Development Agreement
Drainage Facility A - Project Cost 1,7 B - Percentage of
Public Benefit 2
C - Public Benefit
Project Cost (A x B)
D - Total Public
Benefit Cost
E - Drainage
Facilities DIF
Allocation 3
F - Project
Residential
Drainage DIF
Credit 4
G - Other Project
Drainage DIF
Reimbursed -
Residential5
H - Other Project
Drainage DIF
Reimbursed -
Nonresidential 6
I - Developer Excess
Contributions
(D - F - G - H)
PA-19 Drainage Basin $4,944,150 55%$2,719,283
Rouse Road Diversion $403,793 75%$302,845
East Chambers Ave. Storm Drain $1,219,095 75%$914,321
PA-21 Drainage Basin $1,822,425 55%$1,002,334
Rancho La Vita Diversion $240,375 75%$180,281
West Chambers Ave. Storm Drain $2,251,500 60%$1,350,900
Encanto Dr. Storm Drain $3,367,350 85%$2,862,248
Reimbursable Storm Drain Facilities Project Total (F + G + H)
Notes:
1. From K&A Cost Estimates dated Jan. 23, 2020
2. From City of Menifee e-mail on Jan. 28, 2020
3. From City of Menifee Development Impact Fee Study Update (DIFSU)Table 6.3: Total Cost of Facilities to Serve New Development - Encanto Drive Benefit Area
4. Based on DIFSU Storm Drain Facilities Impact Fee for Encanto Drive Benefit Area of $1,036 per Single Family Dwelling x 1,022 Units, Commercial Fees were not included
5. Based on DIFSU Table 6.2: Storm Drain Facilities Equivalent Dwelling Units - Encanto Drive Benefit Area Residential Growth EDU
Residential Projected Growth = 1,309 EDU
Legado Residential = 1,022 EDU
Residential Remaining = 287 EDU x $1,036/EDU = $297,332
6. Based on DIFSU Table 6.2: Storm Drain Facilities Equivalent Dwelling Units - Encanto Drive Benefit Area NonResidential Growth EDU
Nonresidential Projected Growth = 1,336 EDU x $1,036/EDU = $1,384,096
7. Developer shall bear any costs of improvements in excess of the amounts shown in this exhibit.
8. Unless specifically defined in the Project’s Conditions of Approval, construction of the following facilities shall be completed as follows:
Rouse Road Diversion – completed as part of Infrastructure Phase 1, as defined and illustrated in Figure 3-15 of the Legado Specific Plan
Rancho La Vita Diversion – completed as part of Infrastructure Phase 2, as defined and illustrated in Figure 3-15 of the Legado Specific Plan
Storm Drain diversion facilities along Chambers and Encanto Drive – completed as part of Infrastructure Phases 2 and 3 as illustrated in Figure 3-15 of the Legado Specific Plan
Exhibit F-2
$2,740,220
$1,058,792$9,332,211 $2,686,337 $6,591,991$297,332 $1,384,096
LEGADO - VTTM 37408 & 37409
Park Facilities - Calculation of Developer Excess Contributions in Development Agreement
Park Facility B - Percentage of
Public Benefit
C - Public Benefit
Project Cost (A x B)
D - Total Public
Benefit Cost
E - Park
Improvements DIF
Allocation 2
F - Park DIF
Credit 3,6,7
G - Park DIF & Lease
Revenue Reimbursed
(D - F - H)4
H - Developer Excess
Contributions8
Tr. 37408 Neighborhood Park $700,000 100%$700,000
Tr. 37408 Community Park $5,000,000 1 100%$5,000,000
Tr. 37408 Community Center $3,000,000
1 100% $3,000,000
Tr. 37408 & 37409 Paseo Legado $1,500,000 100%$1,500,000
Tr. 37409 Neighborhood Park $800,000 100%$800,000
Reimbursable Park Facilities Project Total (F + G)
Notes:
1. Based on negotiated costs with City subject to CPI for Tr. 37408 Community Park and Tr. 37408 Community Center per Exhibit F-4
2. Based on discussions with City the DIF Allocation is not applicable
3. Based on Park and Recreation Facilities Impact Fee for Park Improvements of $661 per Single Family Dwelling x 1,022 Units
4. Reimbursement calculated assuming $100,193 for lease revenue in addition to $661 per Single Family Dwelling x 3,365 Units. These figures are hypothetical only. Actual lease revenue and development impact fees may vary.
Reimbursement will be funded by park fees collected from areas to be designated by the Parties in the reimbursement agreement and by Community Park & Community Center lease revenue collected during reimbursement period.
5. Project Costs are inclusive of a 15% contingency and reflect not-to-exceed values as described in Section 6.2 of the Development Agreement
6. Quimby Fee satisfied by Developer donation of land to City for future park improvements
7. DIF Credit shall be determined separately for each park facility project
8. Subject to CPI per Exhibit F-4
$8,000,000$2,324,458
Exhibit F-3
A - Project Cost 5
$3,000,000
$675,542$11,000,000 N/A
LEGADO - VTTM 37408 & 37409
Park Facilities - Consumer Price Index (CPI) Increase
Maximum Cost for Neighborhood Parks & Paseos:3,000,000$ Developer Excess Contribution to Exhibit F-3 Facilities:8,000,000$
Annual CPI After Year 3 - Not to Exceed 1.5% or less than 0%120,000$ CPI
Maximum Cost for Community Park & Community Center:8,000,000$ 8,120,000$ Year 4 Max
Annual CPI After Year 3 - Not to Exceed 1.5% or less than 0%120,000$ CPI 121,800$ CPI
8,120,000$ Year 4 Max 8,241,800$ Year 5 Max
121,800$ CPI 123,627$ CPI
8,241,800$ Year 5 Max 8,365,427$ Year 6 Max
123,627$ CPI 125,481$ CPI
8,365,427$ Year 6 Max 8,490,908$ Year 7 Max
125,481$ CPI Year 7 and beyond - reduce CPI Not to Exceed 1% or less than 0%84,909$ CPI
8,490,908$ Year 7 Max 8,575,817$ Year 8 Max
Year 7 and beyond - reduce CPI Not to Exceed 1% or less than 0%84,909$ CPI 85,758$ CPI
8,575,817$ Year 8 Max 8,661,576$ Year 9 Max
85,758$ CPI 86,616$ CPI
8,661,576$ Year 9 Max 8,748,191$ Year 10 Max
86,616$ CPI 87,482$ CPI
8,748,191$ Year 10 Max 8,835,673$ Year 11 Max
87,482$ CPI 88,357$ CPI
8,835,673$ Year 11 Max 8,924,030$ Year 12 Max
88,357$ CPI 89,240$ CPI
8,924,030$ Year 12 Max 9,013,270$ Year 13 Max
89,240$ CPI 90,133$ CPI
9,013,270$ Year 13 Max 9,103,403$ Year 14 Max
90,133$ CPI 91,034$ CPI
9,103,403$ Year 14 Max CAP of CPI - Year 15 9,194,437$ Year 15 Max
91,034$ CPI
CAP of CPI - Year 15 9,194,437$ Year 15 Max
Exhibit F-4
Project Cost Developer Excess Contribution to Exhibit F-3 Facilities
(Exhibit F-3 Column A) (Exhibit F-3 Column H)
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EXHIBIT G
Assumption Agreement
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RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
CITY OF MENIFEE
29844 Haun Road
Menifee, CA 92586
Attn: City Attorney
(Space Above This Line For Recorder’s Use)
[PARTIAL] ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
This [PARTIAL] ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (“[Partial] Assignment”) is entered into as of _________________, 20__ (the
“Effective Date”), by and between _____________________________________ (“Assignor”),
and ___________________________ (“Assignee”).
RECITALS
A. BLC Fleming LLC, a Delaware limited liability company (“Original
Developer” [or “Assignor”]), and the City of Menifee, a municipal corporation (“City”) entered
into that certain “Legado Development Agreement”, dated _____________, and recorded on
________________, as Document No. ___________________ of Official Records, Riverside
County (the “Development Agreement” or the “DA”), pursuant to which Original Developer
agreed to develop certain property more particularly described in the Development Agreement
subject to certain conditions and obligations set forth in the Development Agreement.
B. Assignor is [the owner of or Original Developer’s successor-in-interest to]
the property more particularly described on Exhibit A attached hereto (the “Assignor Land”),
which is [all or a portion] of the property subject to the Development Agreement]
C. Assignee is purchasing [all or a portion] of the Assignor Land, as more
particularly described on Exhibit B attached here to (the “Property”), from Assignor, in accordance
with the terms of that certain [Purchase and Sale Agreement Description] (the “Purchase
Agreement”).
D. Pursuant to the terms of the Purchase Agreement, Assignor agreed to assign
and Assignee agreed to assume certain rights, interests and obligations and other terms and
conditions under the Development Agreement, as such right, interests and obligations relate to the
Property.
E. The purpose of this [Partial] Assignment is to set forth the terms and
provisions agreed upon between Assignor and Assignee with respect to the assignment of certain
rights and interests and the delegation of certain duties and obligations of Assignor under the
Development Agreement, as such rights, interests, duties and obligations relate to the Property.
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AGREEMENT
NOW, THEREFORE, Assignor and Assignee agree as follows:
1. Assignment. Assignor hereby assigns, conveys and transfers to Assignee all rights
and interests of Assignor, as the “Developer”, under the Development Agreement to the extent
such rights and interests relate to the Property, and Assignee hereby accepts such assignment.
[Notwithstanding the foregoing, Assignor shall retain (i) any and all rights under the
Development Agreement necessary to perform the Retained Obligations, defined below; and
(ii) those specific retained rights set forth on Exhibit C attached hereto (the “Retained
Rights”).]
2. Assumption of Obligations. [Except with respect to those specific retained burdens
and obligations of Assignor set forth on Exhibit C attached hereto (the “Retained
Obligations”),] Assignee hereby assumes all of Assignor’s duties and obligations under the
Development Agreement accruing after the date hereof, to the extent such obligations relate to
the Property, regardless of whether the obligations originate in the Development Agreement
itself or documents executed in connection therewith as a means to effectuate the intent of
those provisions, including, without limitation: (a) any indemnity obligations, to the extent
applicable to the Property or to Assignee by reason of its ownership of the Property, (b) any
obligation to follow and be bound by all applicable rules, regulations and policies, (c) any
obligation to pay any fees, assessments or exactions as may be imposed by the Development
Agreement, and (d) any obligations arising under the Development Agreement by reason of a
default of Assignee under the Development Agreement (with respect to any obligations
assumed by Assignee hereunder). Assignee agrees to provide City commercially reasonable
assurances of its performance of its obligations under the Development Agreement.
[Notwithstanding anything to the contrary in this Partial Assignment, Assignee acknowledges
that the Development Agreement runs with the land, therefore nothing in this Partial
Assignment shall be construed to excuse Assignee from general compliance with the
Development Agreement’s prohibitions, default and cure provisions, and other standard
provisions to the extent applicable to the Property.]
3. Development Agreement Transfer Provision. Assignor and Assignee understand
and agree that this Agreement is required to comply with Section 2.2 of the Development
Agreement.
4. Indemnity. Assignee agrees to indemnify, defend and hold harmless Assignor, its
affiliated entities and persons, and their respective members, managers, partners, officers,
directors, shareholders, employees and agents from any claims, demands, losses, liability,
damages, causes of action, costs or expenses (including reasonable attorneys’ fees) made against
or suffered by Assignor with regard to any failure by Assignee to perform any term or condition
of the Development Agreement, to the extent such term or condition relates to the Property, from
and after the date hereof, and Assignor shall indemnify, defend and hold harmless Assignee, its
affiliated entities and persons, and their respective members, managers, partners, officers,
directors, shareholders, employees and agents from any claims, demands, losses, liability,
damages, causes of action, costs or expenses (including reasonable attorneys’ fees) made against
916/031858-0003
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or suffered by Assignee with regard to any failure by Assignor to perform any term or condition
of the Development Agreement, as it relates to the Property, before the date hereof.
5. Miscellaneous.
5.1. Interpretation; Governing Law. This [Partial] Assignment shall be
construed according to its fair meaning and as prepared by both parties hereto. This
[Partial] Assignment shall be construed in accordance with and governed by the laws of
the State of California.
5.2. Attorneys’ and Other Fees. In the event of any dispute between the
parties hereto or institution of any action or proceeding to interpret or enforce the
provisions of this [Partial] Assignment, or arising out of the subject matter of this [Partial]
Assignment or the transaction contemplated hereby, the prevailing party shall be entitled
to recover from the losing party all of its costs and expenses incurred, including court costs
and reasonable attorney’s fees and expert witness fees.
5.3. Authority. Each of the parties hereto represents and warrants to the
other that the person or persons executing this [Partial] Assignment on behalf of such party
is or are authorized to execute and deliver this [Partial] Assignment and that this [Partial]
Assignment shall be binding upon such party.
5.4. Further Assurances. Assignor and Assignee each agree to do such
further acts and things and to execute and deliver such additional agreements and
instruments as the other may reasonably request to consummate, evidence, confirm or
more fully implement the agreements of the parties as contained herein.
5.5. Execution in Counterparts. This [Partial] Assignment may be
executed in several counterparts, and all originals so executed shall constitute one
agreement between the parties hereto.
5.6. Conflict. Nothing in this [Partial] Assignment is intended to modify
or amend the respective obligations of Assignor and Assignee under the Purchase
Agreement between Assignor and Assignee which gave rise to this [Partial] Assignment
and, in the event of any conflict between this [Partial] Assignment and the Purchase
Agreement, as between Assignor and Assignee the provisions of the Purchase Agreement
shall supersede and control over this Partial Assignment.
5.7. Recordation. The parties hereby authorize this [Partial] Assignment
to be recorded in the records of Riverside County upon the date hereof.
5.8. Successors and Assigns. This [Partial] Assignment shall be binding
upon and inure to the benefit of the respective successors, assigns, personal
representatives, heirs and legatees of Assignor and Assignee.
5.9. Notice. All notices to Assignee under the Development Agreement
should be addressed as follows:
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_____________________
_____________________
_____________________
_____________________
Attn: _____________________
With a copy to:
_____________________
_____________________
_____________________
Attn: _____________________
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this [Partial] Assignment as of the
date set forth below its name below.
“ASSIGNOR”
_____________________,
a _____________________
By: ___________________________________
Date: ___________________________________
By: ___________________________________
Date: ___________________________________
“ASSIGNEE”
_____________________,
a _____________________
By: ___________________________________
Date: ___________________________________
By: ___________________________________
Date: ___________________________________
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A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On ____________,20__ before me, _____________________________________________
(insert name and title of the officer),
personally appeared , 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 hand and official seal.
Signature: _______________________________________
[Seal]
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A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On ____________,20__ before me, _____________________________________________
(insert name and title of the officer),
personally appeared , 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 hand and official seal.
Signature: _______________________________________
[Seal]
916/031858-0003
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EXHIBIT “A”
TO [PARTIAL] ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF THE ASSIGNOR LAND
[TO BE INSERTED]
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EXHIBIT “B”
TO [PARTIAL] ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF THE PROPERTY
[TO BE INSERTED]
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EXHIBIT “C”
TO [PARTIAL] ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
RETAINED RIGHTS AND OBLIGATIONS
[TO BE INSERTED]
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EXHIBIT H
Off Site Improvements and Fair Share Fees
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