2013/07/02 Eldorado (Riverside) Venture, LLP Menifee Rd & Drain Improvements I COOPERATIVE AGREEMENT
2 CITY OF MENIFEE
3 AND
4 ELDORADO (RIVERSIDE) VENTURE, L.L.L.P.
5
6 MENIFEE ROAD AND DRAINAGE IMPROVEMENTS
7
8 This Agreement is entered into this 2°d day of July 2013, by and between public
9 agency, the City of Menifee ("MENIFEE"), and the Eldorado (Riverside) Venture,
to L.L.L.P., a Delaware limited liability limited partnership ("ELDORADO"), for the
11 provision of certain activities related to road and drainage improvements to Menifee
12 Road required by the County of Riverside as conditions of approval for Tract No.
13 31582-1 owned by ELDORADO and now located within the jurisdictional boundaries of
14 MENIFEE.
15 RECITALS
16 A. The Western Riverside Council of Governments ("WRCOG") is the
17 Administrator of the Transportation Uniform Mitigation Fee ("TUMF") Program
18 of Western Riverside County ("TUMF Program").
19 B. The TUMF Program is funded by TUMF fees paid by fees imposed on new
20 development in Western Riverside County (collectively, "TUMF Program Funds").
21 C. WRCOG has identified and designated certain transportation improvement
22 projects throughout Western Riverside County as projects of regional
23 importance ("Qualifying Projects").
24 D. The Qualifying Projects are more specifically described in that certain WRCOG
25 study titled "TUMF Nexus Study" as it may be amended from time to time.
26
27
Menifee Road/Eldorado (Riverside)
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I Qualifying Projects can have Regional or Zonal significance as further
2 described in the TUMF Nexus Study.
3 E. TUMF Program Funds are held in trust by WRCOG for the purpose of funding
4 Qualifying Projects,
5 F. The City of Menifee was incorporated as a new California city effective October
6 1 , 2008.
7 G. At the time of incorporation of the City of Menifee, the County of Riverside had
8 already approved and imposed conditions of approval for development of Tract
9 Nos. 31582 and 31582-1.
10 H. Among those conditions of approval was an obligation to widen and provide
11 drainage improvements to Menifee Road which is adjacent to Tract 31582-1
12 according to that certain map entitled "Street Improvement Plans Tract 31582-
13 V which is attached hereto as Exhibit "A" (the "Project').
14 I. Although funding for the Project was originally planned to be provided by
15 ELDORADO, the Project is a Qualifying Project under the TUMF Program,
16 J. On November 17, 2010, MENIFEE and ELDORADO entered into contracts (the
17 "Contracts") for construction of the Project which required completion of the
18 Project within 24 months. Due to unfavorable economic conditions, the Contracts
19 have been extended twice and now expire on August 17, 2013. To date, no
20 construction has begun. The Contracts are attached hereto and incorporated
21 herein as Exhibit "B°.
22 K. Construction of certain improvements, including the Project, that were required to
23 be constructed as a condition of approval of Tract No. 31582 and 31582-1 are
24 secured by surety performance bonds in a total amount of $17,317,400 (the
25 "Existing Bonds") of which $7,096,100 (to be reduced to $4,000,000) represents
26 security for construction of the Project.
27
28 2 Menifee Road/Eldorado (Riverside)
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1 L. To avoid default under the Contracts and to preclude the need to call the bonds to
2 complete the Project, ELDORADO and MENIFEE have each agreed to advance
3 funds to construct the Project, subject to ELDORADO's obtaining credit against
4 TUMF fees that would otherwise be payable to WRCOG.
5 M. The City has in effect certain development impact fees ("DIF") for off-site
6 improvements that are applicable to the Project, including without limitation DIF
7 for traffic signal installation (the "DIF Traffic Signal Fee").
8 N. The cost to construct the Project is estimated to be $5,078,295. MENIFEE and
9 ELDORADO have negotiated and by this Agreement memorialize the manner in
10 which they intend to fund construction of the Project
11 0. MENIFEE and ELDORADO desire to define herein the terms and conditions
12 under which the Project is to be financed.
13 P. MENIFEE has received a commitment from WRCOG for full reimbursement for
14 the funds advanced by MENIFEE for construction of the Project from the WRCOG
15 TUMF Program once the Central zone transportation improvement program is
16 updated, which is anticipated to occur by December 31, 2013 (see Exhibit "C").
17 However, MENIFEE'S covenants set forth in this Agreement are not contingent or
18 conditioned on such reimbursement.
19 Q. In order for ELDORADO to obtain credit against TUMF fees it would otherwise be
20 obligated to pay to WRCOG, ELDORADO, concurrently with the execution and
21 delivery of this Agreement, must concurrently enter into a credit agreement with
22 MENIFEE acceptable to WRCOG.
23 R. This Agreement assures that all actions necessary to finance construction of the
24 Project will be cooperatively provided by the parties.
25
26
27
28 3 Menifee Road/Eldorado (Riverside )
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I AGREEMENT
2 NOW THEREFORE, in consideration of the mutual promises contained herein,
3 the parties hereto agree as follows:
4 SECTION 1 • MENIFEE AGREES:
5 1 . Concurrently with the execution and delivery of this Agreement, to enter
6 into a credit agreement with ELDORADO for ELDORADO to obtain a credit against
7 TUMF fees that would otherwise be due from ELDORADO in the amount of
8 $2,386,837, which constitutes the total calculated TUMF obligation of ELDORADO to
9 WRCOG.
10 2. To advance funds to ELDORADO in the amount of $1 ,500,000 for
it construction costs upon invoices received from ELDORADO,
12 3. Concurrently with the execution and delivery of this Agreement, to enter
13 into agreements with ELDORADO whereby ELDORADO will grant a lien on Tract Nos,
14 31582 and 31582-1 to MENIFEE as security for the miscellaneous subdivision
15 improvements required by the conditions of approval for Tract Nos. 31582 and 31582-
16 1 other than the Project, and whereby all of the Existing Bonds other than a bond for
1.7 $4,000,000 to secure construction of the Project are released and exonerated.
18 4. To provide to ELDORADO eligible DIF Traffic Signal Fee credits
19 associated with the construction of traffic signals for the Menifee Road Project. The
20 total fee credits shall not exceed ELDORADO'S obligation for DIF Traffic Signal Fees.
21 SECTION 2 • ELDORADO AGREES:
22 1 . To administer the construction of the Project which may include but is
23 not limited to approving plans and specifications; advertising public bids; awarding
24 construction contracts; obtaining appropriate City permits; complying with all
25 applicable federal, state and city laws and regulations including without limitation
26 prevailing wage laws; and overseeing all aspects of administration of the Project.
27
28 4 Menifee Road/Eldorado (Riverside)
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1 2. Concurrently with the execution and delivery of this Agreement, to enter
2 into a credit agreement with MENIFEE for ELDORADO to obtain a credit against
3 TUMF fees that would otherwise be due from ELDORADO in the approximate amount
4 of $2,386,837, which constitutes the total calculated TUMF obligation of ELDORADO
5 to WRCOG.
6 3. To directly document and pay all direct costs of construction for the
7 Project in excess of the $1 ,500,000 advanced by MENIFEE pursuant to Section 1 ,
8 Paragraph 2, above, and to cause the Project to be constructed in accordance with
9 the conditions of approval for Tract 31582-1.
10 4. To maintain bond security for $4,000,000 to secure construction of the
11 Project until the Project is completed and no longer under warranty.
12 5. To submit invoices to MENIFEE documenting expenditures for
13 construction costs on a regular monthly basis and in a form reasonably acceptable to
14 MENIFEE and WRCOG to facilitate reimbursement to MENIFEE by WRCOG.
15 6. To abide by the terms of the credit agreement with MENIFEE for TUMF
16 fees.
17 7. ELDORADO represents and warrants that has title to Tract Nos. 31582
1.8 and 31582-1 as reflected in the preliminary title reports attached hereto as Exhibit
19 "D", and that the unencumbered equity value of that property equals or exceeds one
20 hundred and fifty percent (150%) of the value of the Existing Bonds to be released
21 and exonerated following execution of this Agreement.
22 8. ELDORADO represents and warrants that the persons or entities
23 executing this Agreement have the legal authority and capacity to bind ELDORADO
24 and to pledge Tract Nos. 31582 and 31582-1 as security for a lien in lieu of the
25 Existing Bonds.
26
27
28 5 Menifee Road/Eldorado (Riverside )
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1 SECTION 3 o IT IS MUTUALLY AGREED AS FOLLOWS:
2 1 . The Recitals set forth above at the beginning of this Agreement are
3 incorporated herein by this reference.
4 2. The total estimated cost to complete the PROJECT as shown in Exhibit
5 "D", including project administration, management, design completion and approval,
6 right-of-way, environmental, construction, and utilities, is $5,078,295.
7 3. MENIFEE and ELDORADO acknowledge and agree that any funding
8 shortfall for the completion of the Project will be the responsibility of ELDORADO. In
9 the event that adequate funds are not available to complete the Project, MENIFEE and
10 ELDORADO agree to meet and confer and collectively work to identify adequate
11 funding for Project.
12 4. MENIFEE agrees to budget for the Project at the start of each fiscal year
13 for the life of the Project.
14 5. ELDORADO acknowledges and agrees that the Project is subject to
15 prevailing wage laws and agrees to abide by such laws during construction of the
16 Project.
17 6. In the event that either party defaults in the performance of any of its
18 obligations under this Agreement or materially breaches any of the provisions of this
19 Agreement, and the defaulting or breaching party fails to cure such default or breach
20 within thirty (30) days after the other party gives written notice thereof (or, if such
21 breach or default is not reasonably susceptible of cure within such thirty (30) day
22 period, if the defaulting or breaching party fails to commence to cure within such thirty
23 (30) day period and thereafter diligently prosecute such cure to completion), then the
24 other party shall have all rights and remedies provided for or allowed by law or in
25 equity.
26 7. In the event any action is commenced to enforce or interpret any term or
27 condition of this Agreement, in addition to costs and any other relief, the prevailing
28 6 Menifee Road/Eldorado (Riverside )
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1 party shall be entitled to recover reasonable attorney's fees and costs from the non-
e prevailing party.
3 8. Nothing in the provisions of this Agreement is intended to create duties or
4 obligations to or rights in third parties not parties to this Agreement or affects the legal
5 liability of either party to the Agreement by imposing any standard of care with respect
6 to the maintenance of roads different from the standard of care imposed by law.
7 9. This Agreement and the exhibits herein contain the entire agreement
8 between the parties, and are intended by the parties to completely state the agreement
9 in full. Any agreement or representation respecting the matters dealt with herein or the
to duties of any party in relation thereto, not expressly set forth in this agreement, is null
11 and void.
12 10. No alteration or variation of the terms of this Agreement shall be valid
1.3 unless made in writing and signed by all parties and no oral understanding or
14 agreement not incorporated herein shall be binding on all parties hereto.
15 11 . Each provision, term, condition, covenant and/or restriction in this
16 Agreement shall be considered severable. In the event that any provision, term,
17 condition, covenant and/or restriction, or part thereof is declared invalid,
18 unconstitutional or void for any reason, such provision or part thereof shall be severed
19 from this Agreement and shall not affect the remainder of the Agreement, which shall
20 continue in full force and effect.
21 12. This Agreement may be executed in duplicate originals, each of which is
22 deemed to be an original.
23 13. MENIFEE and ELDORADO shall retain or cause to be retained for audit
24 for a period of three (3) years from the date of final payment, all records and accounts
25 relating to the PROJECT.
26 14. All notices permitted or required under this Agreement shall be deemed
27 made when delivered to the applicable party's representative as provided in this
28 7 Menifee Road/Eldorado (Riverside)
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I Agreement. Such notices shall be mailed or otherwise delivered to the addresses set
2 forth below, or at such other address as the respective parties may provide in writing
3 for this purpose:
4
MENIFEE ELDORADO
5
City of Menifee ELDORADO (Riverside) Venture, L.L.L.P.
6 29714 Haun Road c/o Avanti Properties Group II, L.L.L.P.
Menifee, CA 92586 923 N. Pennsylvania Avenue
7 Attention: City Manager Winter Park, FL 32789
Telephone: (951) 672-6777 Attn: Marvin Shapiro
8 Telephone: (407) 628-8488
9
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
10
(48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the
11
party at its applicable address.
12
13 Executed this day of , 2013
14
15 CITY OF MENIFEE
16 WAAA
17 By Robert Jo son, In e m ity Manager
18
19 Approved as to Form
20
21 lie Haywar Bi City Attorney
22
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28 8 Menifee Road/Eldorado (Riverside)
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I EL DORADO (RIVERSIDE) VENTURE, L.L.L.P,
2 a Delaware limited liability limited partnership
3 By: Eldorado (Riverside) ASLI V, L.L.L.P., a
Delaware limited liability limited
4 partnership, its sole general partner
5 By: Eldorado (Riverside) GP, LLC, a Delaware
6 limited liability limited partnership, its sole
general partner
7
By: Avanti Properties Group II, L.L.L.P., a
8 Delaware limited liability limited
9 partnership, its sole manager and member
10 By: Avanti Management Corporation, a Florida
corporation, its sole general partner
11
12
By:
13 Marvin Shapiro, President
14
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28 9 Menifee Road/Eldorado(Riverside)
Venture, L.L.L.P.
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EXHIBIT B
AGREEMENT
FOR THE CONSTRUCTION OF ROAD/DRAINAGE IMPROVE MENTS
This qgrcoment, made and entered into by and between the City of Menifee,State
of California, hereinafter called City, and Eldorado (Riverside)Venture,L,L,L,P,,a
Delaware limited liability limited partnership,licrebtafter called "Owner".
WITNE SSETII;
FIRST: Owner, for and in consideration of flioapproval by City of the Rnal map
of that at certain land division known as jr—r—a—ct—/P—Ftr—e cl—Man N o. 115 82-1,hereby agrees,at
Owner's own cost and expense,to furnish all labor,equiliniont and materials zjecc&sary to
perform and complete,within 24 months from the date this agreement is executed,in a
good and workmanlike manner, all road and,drainage improvements in accordance with
Urose Road Plans for said land division which have been approved by the City Engineer,
and are on file in the office of the McnifeeEnginccriug Dap ar ant and we k
an em all r
Incidental thereto in accordance with the standards set forth in Riverside County
Ordinance No, 460,as amended, or its successor,which are hereby expressly made a part
of This agreement. Alt the above required work shad be done under the inspeWon of and
to the satisfaction of ffic City Engineer,and shall not be,deemed complete until approved
and accepted as complete by the City. Owner hirthe'r agrees to maintain the above
required improvements for a period of one year following acceptance by the City,and
during this one year period to repair or replace,to the,satistociiiin of tile City faighloeT,
any defective,work or labor done or defective materials furnished, Owner further agrees
that all underground improvements shah be completed prior to the paving of any
roadway.The estimated cosy of said work andimprovoments is the sum of Four Million
Five HunqLed 1:1 irty Four Thousand Six Hundred and Fifty Dollars
($03050.004.
SECOND: Owner agrees to pay to City the actual cost of such inspections of the
work and improvements as may be required by the City Engineer, Owner further agrees
that, if sull is brought Upon this agreement or any bond guranittocing the completion of
the road anti drainage improventaints,all costs and reasonable expenses ard.Been incurred
'by City in successfully enforcing such obligations shall be paid by Owner,including
reasonable attorney's fees, and that,upon entry ol'judgment,all such costs,expenses and
fees shalt be taxed as costs and included in arryiudginQnt reindered.Veauc for any such
litigation shall be Riverside Superior Court,
THIRD: City shalt not,nor shall any officer Or employee of City, be liable or
responsible for any accident,loss or damage happening or occurring to the works
sped lied in this Agreement prior to the completion and acceptance thereof,not shall City
or any officer or employee thereof,be liable for any persons or property injured by reason
of tho nature of the work, or by reason of the acts or omissions of Owner,its agents or
employees,in the performance of the wort,and all or said liabilities are assumed by
Owner, Owner shall to protect, defend,and hold harmless City and the officers, agents
and erriployees thereof train all loss,damage,liability or claini because of, or Wising out
of the acts or omissions of Owner,its officers,agents and employees,in die performance
of this Agreement or arising out of the use of any patent or patented article in the
performance ce of this Agreement.
FOURTH: The Owner hereby grams to City,or any agent or employee of City,
the irrevocable permission to enter upon the lands of the subject,land division for the
purpose of completing the ixnprovomoins. This perraission shall terminate at such time as
Owner has completed work within the time specified or any extension thereof garnted by
the City,
FIFTH: The Owner shall provide adequate notice and warning to the traveling
public of each and every hazardous or dangerous condition onuasol or created by the
construction of the works of improvement at all times up to the completion and formal
acceptance oC the works of improvement,Tba Owner shall protect all persons from such
WArdous or dangerous conditions by use of traffic regulatory control methods,
including,but not limited to,stop signs,regulatory signs or signals, barriers,or detours,
SIXTH: Owner,its agents and employees,shall give notice to the City Engineer
u fsh a t � Men! cc
at least dS hours before beginning any work and shall ft .1 , said City )f f
E.nonecring all reasonable facilities for obtaining full inrormaricti-twithrespeot to the
progress and manner oCwnrk,
SEVENTH:If Owner,its agents or employees,neglects,refitscs,or fails to
prosecute the work with such diligence as to hisure,its completion w thiu the specified
time, on-witHro such extensions of thrie which have been granted by City,or if Owner
violates,neglects,refuses,or fails to perform satisfactorily any of the provisions of the
plans and specifications,Owner shall be in default of this agreement and a0tite of such
ol0laulL shall be served upon Owner, City shall have the power, on recommendation of the
City Engineer, to terminate all rights of Owner because of such default.The
determination by the City Engineer of the oliiestionas to whether any of the terms of the
agreement or spool ricatiolis have been violated, or have not been pelfonned satisfactorily,
shall be conclusive upon the Owner,and any and all parties who may have any interest in
the agreement or any portion thereof.I'lie foregoing provisions of this section shall be in
addition to all other rights and remedies available to City under law.The Mure of the
Owner to commence construationshatl not relieve the.Owner or surety from completion
of the improvements required by t1ris agreement.
EIGHTH: Owner agrees to file with City,prior to the date this agreement is
executed,a good and suffilolent briprovernent security in an amount not less than the
estimated cost of the work and improvements for the faithful performance of the leans
and conditions of this agreement, and good and sufficient security for payrneol of labor
and materials in the arrionlit proscribed by Article XVIT of Riverside County Ordinance
460 as amended to secure the claims to Which reference is roradc in Title 15 (conaranchig
with Section 3082)of Part 4 of Division 3 of the Civil Code of the State of California,
2
Owner agrees to renew each and every said bond or bonds with good and sufficient
suretits or Increase the amount of said bonds,or both,within ten(10)days after being
notified by the City Engineer that the sureties or amounts are insufficient,
Notwithstanding any other provisions herein,if Owner hills to take such action as is
necessary to comply with said notice, Owner shall be in del-'atilt of this agreement unless
all required improvements are completed within ninety(90) days of the date on which the
City Engineer notified Owner of the insufficiency of the security or the amount of tile
bonds or both,
NINTI-1: It is Parther agreed by and between tho parties hereto,including the
surety or studies on the bonds suQuibag this agreement,that,!nine event it is deemed
necessary to extend the tinuo of completion of the work contemplated to be done under
this agreement in accordance with the terms,requirements and provisions of the
conditions of approval for the project,extensions of time may be granted,from hire to
'time,by City,either at its own option, or upon request of Contractor,so long ES the
requested extensions in no way alter the time frairres for projeot improvements as set
forth in the conditions of approval,and such extensions shall in no way affect the validity
of this agreement or release the sorely or sw ctics on such bonds. Contractor further
agrees to:maintain the aforesaid bond or bonds in full force and effect during the terms of
this agreement,including any extensions of thiaeas may by granted therein,
THNITE It is understood and a6ped by the parties hereto that if any pad,term or
provision of this agreement is by the courts held to be unlawful and void, the validity of
the remaining portions shall not be affected and the rights and obligations of the parties
shall,be construed and enforced as if the agreement did not contain that particular part,
term or provision held to be invalid,
ELEVENTH; Any notice or notices required or permitted to be given pursuant to
this Agreement shall be decreed served on the other party when deposited in the"United
States Mail,first class,postage prepaid, addressed as follows:
CAY Owner
City Engineer Eldorado (Riverside)Venture, 1.11Y.
City of Menifee do Avauti Properties Orcup 11,L.L.1-P,
29714 Hann Rmd 923 N' Pennsylvania Avenue
Metrifse, CA 92586 Winter Fork,Ff. 32789
Attention: Mr.Marvin Shapiro
TWELFTH: This Agreement contains the entire agreement of the parties as to the
matters set forth herein.No wtdvQr of any term or condition of this Agrvenrout shall be a
continuing waiver thereof.
ISIgnaturas o?7,1o11orv!ngj,7agqj
IN WITNESS VIDEREOF, Owner has afflixed his name,address and $cal.
OyVNER
ELDORADO (RIVERSIDE)VFNTURE, a Delaware limited liability
lirnitcd partnership
By Eldorado (Riverside) ASLI V, a Delaware lit-rdled liability limited
partnership,its Sole gycncral partner
By: Eldorado (riverside} 011,LLC.a Delaware drifted liability compny,its soh"
general partner
By: Avanti Properties Group 11,L.L.L.P.,a Dehmare limited liability finlited
Partnership, its sole manager and member
By: Avanti Development Corporation 11,a Florida corporation,its sole general partner
Dawch
By: IvlrrvnraM. Shapira, VicePreident
CITY OF ME NIFRF
Waltuo W. Eciperion,Mayor
)VITEST: APPROVED AS TO FORM
13y
Karen Feld, City Attorney
Kathy Berincit, City Clerk
SIGNAT1JRD3 OF OVTNLR 14UST BE ACKNOWLEDGED BY NOTARY
AND ENECUTED 1NTIUPJ,ICA:lE
4
STATb,OF FLORIDA
COUNTY 017 CRANGE
-tV-'1-7+fi-4,NotaryPublic,Qffffly U18tMarvillM,Shapiro,Vice Presideatof
AVANTI DEVELOPMENT CORPORATION 11,a Florida corporation,being personally known to tale to be
Mai via M. Shapiro, came befbre me this day and acknowledged that Zia is the Vice President crAVANTI
DEVELOPMR-W CO[WORiMON 11,a Florida corporation,and that he as Vice lljesidenL,being authorized to
(10 SO,CXeCLftd the foregoing on behalf ofthe earporatioil,
Xctm),iubbC
SUSAN CWHITFIELD
COMMON 4 SEZZ232
L'XPIRM AUG 90 2014
DONDEUTHROUG14
no INSURmal COMPANY
November 14,2012
Platte River Irfsuranee Company t `
115 Glastonbury Blvd
John ,Denver Suites
mayor Glawnbury,CT 06033
Thomas fuhrmart
Mayor Pro Tern Subject; BxteasionofTiree
Waftace W,Edgerton Tract/Parcel Map No.31582&31582-1
counttlmember
lore Xuaml In accordance with tbv Agreements signed by the City of Meni£cc and Mr,Marvin
counrYmember M. Shapiro reprusentinl;Bl Dorado(Riverside)Venture,..LLLP the City of
sue lanmr; Menifee requests that the bonds 16W in Attachment A be extended to Key 17„
Counrtimember 2013,
This request WO fOrmallYOPproved by City Council at its regular meeting on
November 13,2011
The 14 bonds total$17,317,400,00,
5ncer 'y,
Denver'
Mayor
Enclosures;
Attachment A—Bond List
cc: Frank Igo, Director The Ranerso,Group
Jeff Comcrchcr ';19j6 3&Ph
egident,The.Rnneon Group:
B1 Dorado (Riverside)Venture,LI.11
Bill Rawlings,City Manager,City ofMenifee
Joe Pletchor,City Attorney,City of Menitee
Rathy Beautett, City Clerk,City ofMenfee
Jeff Wyrnan,Economic Development Director,City of Menit'ee
Don Allison, Director of Public Works,City of Menifee
29714 Haun Road
Mendfae,CA 97586
Phone 95J,67U777
Fax 951,679,3843
aww,e3typfng6n(ftaa.uz
CITY OF MENIFEE
................................ ....... ....................... .......................... ..
AUTHORIZE AND DIRECT STAFF TO EXTEND SUBDIVISION
IMPROVEMENT AGREEMENTS AND BONDS FOR TRACTS 31582 AND
31582-1 ELDORADO PROJET
MEETING DATE, June 4, 2013
TO: Mayor and City Council
PREPARED BY: Jonathan Smith,Acting City Engin4e
REVIEWED BY: Rob Johnson, City Manager ��
SUBJECT: Authorize and Direct to Extend Subdivision Improvement
Agreements and Bonds for Tracts 31582 and 31582-1
Eldorado Project
RECOMMENDED ACTION
Authorize and direct staff to extend the Subdivision Improvement Agreements, Faithful
Performance Bands,.Material & Labor Bonds and Subdivision Monument Bonds for
Tracts Nos. 31582 and 31582-1 for an additional 90 days to August 17,2013 from
original agreement.
DISCUSSION
Tracts 31582 and 31582-1 are a portion of a single family subdivision project originally
approved by the County of Riverside prior to Menlfee's Incorporation (Exhibit A is a
vicinity map for Tracts 31582 and 31582-1), The Principal Developer is Eldorado
(Riverside) Venture, L,L.L.P., a Florida Corporation (Developer),
In November 2010, the Menifee City Council approved the final maps for the two tracts.
Under those approvals,the Developer was required to enter into infrastructure
agreements secured by 19 bonds (Bonds)guaranteeing improvements, Including the
construction of Monifee Road between Simpson Road and Aldergato Drive (the"missing
link"), major storm drains and utilities, the original estimated cost of which was
$17,317,400. The Initial agreements required the improvements to be completed
q p p ted by
November 2012 (24 months), and as such,the agreements were set to expire on
November 17, 2012,
On November 13, 2012,the City Council approved to extend the 5ubdivislan
Improvement Agreements, Faithful Performance Bonds, Material &Labor Bonds and
Subdivision Monument Bonds for Tracts Nos, 31582 and 31582-1 to May 17, 2013.
Current Status; Both final maps were recorded and all of the'new lots have been
created. So far, only one portion of the project has been built out and occupied:the
Eldorado neighborhood located at the southwest corner of Simpson Road and.
Lindenberger Road. The balance of the tracts are in varying degrees of development. A
City Council Staff Report
Final Maps 31582, and 31582-1
June 4, 2013
large portion of the on-site internal streets south of Trailhead Drive have been installed,
The westerly portion of the development, including the unfinished section of Menifee
Road between Simpson and Aldergate, Is partially graded ("Missing Link"),
The remaining infrastructure, Including the completion of the offsite Menifee Road and
storm drain project(Menifee Road Project), is planned to be funded by the future sale of
homes. In this case, the majority of the homes will have to be constructed and sold to
fund and complete the Infrastructure work, including the offsite Menifee Road Project,
The improvement agreement has expired and Eldorado (Riverside)Venture,1-1.L.P.,
has not met the Improvement obligations listed in the agreement,
Under the terms of the Subdivision Improvement Agreement between the City and the
Developer, the City may extend the completion bond dates. Staff has determined that
extending the Bonds for an additional six (90) days to August 17, 2013, would allow
Eldorado to expedite the completion of the Menifee Road improvements, If during this
extension timeframe, the Developer does not begin bid,award and construction of the
Menifee Road Improvements, then the City can reassess the need to call the Bonds at
that time and have the City construct the Mantes Road Improvements,
Staff recommends extending the Subdivision Improvement Agreements, Faithful
Performance Bonds, Material & Labor Bonds and Subdivision Monument Bonds for
Tracts Nos, 31582 and 31582-1 for an additional 90 days to August 17, 20I3.
'GALS IMPACT I fl�aj
None, i'dO V
UL&P-k XTO gKs-
Vicinity Map - Exhibit'"A"
2
City of Menifee, City council
Meeting Minutes
June 4, 2013
STUDY SESSION
Deputy Mayor Edgerton called the meeting to order at 5:00 p.m. Present were:
Deputy Mayor Wallace Edgerton, Counrimember Greg August, Counc[Imember
John Denver, CounclimemberTom Fuhrman, (Mayor Mann in Sacramento on City
business), Interim City Manager Robert Johnson, City Attorney Julie Hayward
Biggs, City Clerk Kathy Sennett, Finance Director Terri Willoughby,Acting City
Engineer Jonathan Smith, Director of Community Development Carmen Cave,
Director of Economic Development Jeff Wyman, Building Official Colin MoNle,
Assistant to the City Manager Julie Woodruff, and five members of the public,
Study Session:
li, Fiscal Year 2013.14 Budget
2. Effect of Changes In PERS rates through 2019120
3. Capital Improvement Plan(CIP)
Interim City Manager Johnson gave the Council an overview and opening
statement, noting that the City's budget Is balanced despite some very difficult
circumstances, and that it allows for planning for the future. He noted that although
the current budget does not Include new staffing, It Is hoped that It can be included
if the current fiscal picture improves with the possible return of the VLF funding. ]-is
detailed the kinds of expenses that could be covered with the addition of the VLF
funding including police, fire and other needed City services. He reported that
although the current revenue streams do not cover the full amount of services
needed but sales tax is starting to make gains,
Finance Director Willoughby reported on the purpose of a budget,the budget
management and the breakdown of the City's budget. She described the various
funds and action plans of the process.
Council asked questions about the fund balance and thanked staff for the
presentation,
Interim Manager Johnson noted It Is a conservative budget where the staff has
planned for the worst but is expecting the beat.
Deputy Mayor Edgerton asked if staff could return the policy of fund balance
percentage to the Council for consideration as It is currently set at 28% but could
be adjusted to a different percentage. Stiff agreed to return that item to Council for
consideration,
Deputy Mayor Edgerton adjourned the meeting at 6 iorn.
REGULAR SESSION
1. CALL TO ORDER
Deputy Mayor Edgerton called the meeting to order at 7:00 p.m.
2, ROLL CALL
Present were; (Deputy Mayor Wallace Edgerton, Councilmember Greg August,
Councllmember John Denver, Councllmember Tom Fuhrman, (Mayor Mann in
Sacramento on City buslness), Interim City Manager Robert Johnson, City
Attorney Julie Hayward Biggs, City Clerk Kathy Bennett, Finance(Director
Terri Willoughby, Acting City Engineer Jonathan Smith, Director of Community
Development Carmen Cave, Director of Economic Development Jeff Wyman,
Building Official Colin McNie,Assistant to the City Manager Julie Woodruff,
and fifty members of the public,
3. INVOCATION— Offered by Councllmember Denver
4. FLAG SALUTE-Councllmember August
5, PROCLAMATIONS AND PRESENTATIONS—none.
6. APPROVAL OF MEETING MINUTES
None.
T. AGENDA APPROVAL OR MODIFICATION—approved as posted
8. PUBLIC COMMENTS
Katie Ni—stated the name of the city should be Manifee as it Is run by Mr.
Mann and his personal attorney. She noted that the Planning Commission is left out
of decisions, bypassed and listed multiple Issues with trafflc and planning that she
feels the City Is handling Improperly. She asked if anyone has considered putting any
�I
businesses on the east side of the freeway.
Michael Mudd—stated his not speaking for himself but for the entire community and
has a question to Rob Johnson as to why he continues to pay the salary of Carmen
Cave when she obstructs everything and he has been her boss for six months and
should fire her or there will be a large group of people coming to ask him if he wants
to see"what Is behind door no. 2". He stated the community will no longer tolerate her
and she needs to be removed,
James Flynemarl—concerned of a lack of police in the late might and early morning
hours and had an incident where there was a problem and it took quite long to get a
police response to the young people causing a problem as he watched them with his
—.. .__
City of Menifee City Gaunaii
Meetlng Minutes
June 4,20I3 ha ie 2
binoculars being drunk and disorderly. He noted a representative of the police
department did return his call but there were only three deputies on duty.
Gretchen Lamborn—lived in Manifee for 22 years and volunteers all over Mentfee
and fools the widening of Newport is not what people want right now, She feels the
lights need to be timed and the City should work on Holland as the residents cannot
continue to wait for Holland to be constructed properly.
9. COUNCILMEMBER UPDATES AND COMMENTS
Councllmember F"uhrman stated Santa Rosa Academy is staggering its start
and finish times to help with traffic,
10. CONSENT CALENDAR
10.1. Waiver of Reading In Full of All Ordinances Listed on this
Agenda and Provide that they be Read by Title Only
10.2. Warrant Register
10.3, Adopt Resolution No, 13-322 Setting Public Hearing for CSA
Annual Charges
10.4. Accept Notice of Completion for the Newport Road Turn
Pocket to Haun Road South Project
10.5, Approve Extension of Subdivision Improvement Agreements
Tracts 31682 and 31682-1 for an additional 90 clays —
Eldorado
10 6. Approval of Waiver of Condition of Approval#16 for the
Audio Murphy Ranch Tract 31391
Councllmember Denver moved approval of the Consent Agenda. The
motion was seconded by Councllmember Puhrman and approved on a
unanimous roll call vote of those Councilmembers present as follows;
Ayes: August, Denver, Edgerton, Fuhrman
Nos: None
Absent: Mann (City business out of town)
11, PUBLIC HEARINGS
11.1, Public Hearing to Approve Plans and Specifications and
Adopt a Negative Declaration for the Environmental
Assessment of the Newport Road Widening (Antelope to
Monifee Road),CIP No. 01-13
Interim Manager Johnson introduced the item and called for a staff
report, noting, in response to a public speaker, that this project is ready
to go and the Holland Road project is on the list for one of the City's top
City of Menlfee Clty Council -
Meeting Minutes
June 4,2013 Page 3
phoriffes but it is not in the same state of readiness as the Newport
project.
Acting City Engineer Smith noted this Is a vital project for the City and
the first step in improving Menifee's transportation and asked Project
Manager Crystal Nguyen to do an overview of the project and the timing
and process,
Project Manager Nguyen reviewed the project timing and process noting
ways the City has found to alleviate as many traffic concerns as possible
while doing a needed project to improve traffic flow.
Council questions of staff: Councilmember Fuhrman asked for the
contractor's opinion -If the road were closed fully for eight weeks If the
project could be completed In eight weeks instead of sixteen weeks,
Interim Manager Johnson suggested it would most likely not be possible
to complete the project in eight weeks even with a full closure and it
would heavily inconvenience those who lived in the area.Acting City
Engineer Smith concurred with that summation.
Deputy Mayor Edgerton opened the public hearing at 7:40 p.m. and
called for public testimony, None was heard,
Deputy Mayor Edgerton closed the public hearing at 7AI p.m.
Councilmember Denver moved to adopt a Negative Declaration for the
Environmental Assessment of the Newport Road Widening (Antelope to
Menfee), CIP#01-13 based an the findings Incorporated in the
environmental document and the conclusion that the project will not have
a significant effect on the environment. The motion was seconded by
Councilmember Fuhrman and Passed On a unanimous roll call vote of
those Counclimember's present:
Ayes; August, Denver, Edgerton, Fuhrman
Noes: None
Absent: Mann (City Business out of town)
Councilmember Denvei,moved approval of the Plains and Specifications
for the Newport Road Widening (Antelope to Menifee), CIP 401-13. The
motion was seconded by Councilmembor Fuhrman and approved on a
unanimous roll call vote of those Councilmember's present:
Ayes: August Denver, Edgerton, Fuhrman
Noes: None
Absent: Mann (City Business out of town)
City of Menroe City Cound
Meeting Minutes
Jone 4,2013 14
Councillmernber Fuhrman moved to authorize the City Engineer to
advertise the Newport Road Widening (Antelope to Menifee), C I P#01.13
for public bid. The motion was seconded by Councimember Denver and
passed on a unanimous roll call vote of those Councimember's present:
Ayes: August, Denver, Edgerton, Fuhrman
Noes: None
Absent Mann (City Business out of town)
11Z Public Hearing Regarding Extension of Moratorium on
Ordinance No.2013.126U on Metal Shipping Containers
City Attorney Biggs noted this item allows for a report required by
Government Code to be Issued when a moratorium Is imposed, She
noted the Council will Issue the report and the moratorium will then be
able to be extended at the next Council meeting after the public has had
time to review the report,
Deputy Mayor Edgerton asked for questions from Council and Council
clarified what action is needed on the item,
Deputy Mayor Edgerton opened the public hearing at 7:45 p.m. and
called for public testimony.
Rick Larson-In favor of metal storage containers and has one would
like to keep as it is well hidden from public view and able to hold his
items well and safety.
Denis Normelg-local church representative and has a local radio show
and has five acres. Finds these containers available and cost efficient for
storing things.
Ran at 1-uptonei-In favor of metal storage containers and uses his for
j-
hobby items,
Deputy Mayor Edgerton closed the public hearing at 7:52 p.m,
Following discussion Counclimember Fuhrman moved to issue the report
required by Government Code 65858,The motion was seconded by
Councilmernber August and passed on R Unanimous roll call vote of
those COUnclimember's present,
> Ayes: August, Denver, Edgerton, Fuhrman
> Noes: None
Absent: Mann (City Business out of town)
Councilmember Fuhrman moved to continue the Public,Hearing on the
Extension of Ordinance No,2013-125U to June 18, 2013,The motion
-6-4-of i enjfae-01ty cow
Meeting Minutes
June 4,2013 Page 5
was seconded by Councilmember Denver and passed on a unanimous
roll Coll Vote Of those COUnCilmember's present.
> Ayes: August, Denver, Edgerton, Fuhrman
)'k Noes: None
> Absent: Mann (City Business out of town)
12, DISCUSSION ITEMS
None,
13. CITY ATTORNEY REPORTS
City Attorney Biggs reported that the courts upheld the ban or marijuana
dispensaries and that our current code Is therefore appropriate. She noted however
that some attorneys are questioning the applicability of the ban as to mobile
marijuana dispensaries and will return to Council with an ordinance to allow Council
to decide if they wish to ban or allow those types of facilities.
14. CITY MANAGER REPORTS
Interim City Manager Johnson reported that Mayor Mann was in
Sacramento meeting with staff of the Governor's office In regard to 813 56
hoping to gain support for return of the City's VLF funds, He reported that
the Mayor has sent a message just before the meeting that indicated that
the meeting went well with a positive tone for success of gaining the funds
and he would continue to follow the matter.
I& FUTURE AGENDA REQUESTS FROM COUNCILMEMBERS
None.
16. ADJOURN
Deputy Mayor Edgerton adjourned the meeting at 8:00 p.m,
ZA-l"4 ,
Kathy Bennett, City Clerk
City of Meriee City Council
Meeting Minutes
Junu4,2013 Page 6
NIFE
Stott A.Mann
Mayor
Wallace W.Edgerton
Deputy Mayor
STATE OF CALIFORNIA
John V.Denver COUNTY OF RIVERSIDE
Courollmernber CITY OF MENIFEE
Thomas Fuhrman
Coundirromber
Greg August 1, Kathy Bennett, City Clerk of the City of Menifee, do hereby certify that the
CounclInnamber foregoing Minutes of June 4, 2013 were duly approved by the City Council of the
City of Menifee at a meeting thereof held on the June 18, 2013 by the following
vote:
Ayes: August, Denver, Edgerton, Fuhnnan
Noes: None
Absent: Mann
Abstaim None
Kathy Bennett, Clty Ele-rk
Dated:
29714 Haun Road
Menflee,(A 9x586
Phone 951.671.6777
FaX 95L579,3843
wwwxltyofmerifee.m I
EXHIBIT C
T :oun of Riverside•Cil of Bannin •C bf Calimesa •City of Canyon take.•CI of Corona•.City of Eostvale•City of Hemel ry Y 9 N N Ya N y y CIIyaFJoNpgValley
q' City of lake Elsinore•City of Merino•Ciiy of Moreno Valley•City of Wateto •City of Norco Cry of Perris•Coy of Riverside 0 City of.SonJddinto
City of Temecula •City of Wildomar• Eastern Municipal Water District•Western Municipal Water District
Robert Johnson
Interim City Manager
City of Menifee
29714 Haun Road
Merrffeo,CA 92586
Subjects Menifee Road Gap Closure
Dear Mr. J.. n, eiY�
This letter Is a follow up on the meetings I have had with city staff regarding the Menifee Road Cap Closure
between Aldergate and Simpson Road,
The City has partnered with the Rancon Group, which is conditioned to construct half-width Improvements for
Manifee Road as part of their development project, to construct the full cross section and complete the gap
closure, This project,when completed will provide continuous connection between the cities of Menifee and
Perris,
Due to the timing of the construction, which is anticipated to being In early August the City of Menifee is
fronting local funds to move the project forward without delay. The City has requested to be reimbursed with
Central Zone TUMF revenue,
The project is an eligible TUMF facility and there is, funding available however, it is currently not on the
Central Zone Transportation Improvement Program(TIP), and will need to be added during the TIP
amendment cycle this fail. The Central Zone Technical Advisory Committee has been apprised of the situation
and has given this project early approval for$1.8 million dollars,pending the TIP amendment,• With this
approval, the City can move forward with this construction with some certainty of reimbursement from TUMF.
Western Riverside Council of Governments (WRCOG) anticipates the Central Zone TIP amendment to be
approved no later than February 2014 by the Executive Committee, The City can enter into a Reimbursement
Agreement with WROOG immediately following the project being added to the approved TIP. Once the
Reimbursement Agreement is executed, the City is eligible for construction costs incurred prior to the
execution of the Reimbursement Agreement WROOG encourages the City to meet with WRCOG staff prior
to commencing Construction to go over the eligible activities and costs. WRCOG has found that a pre-billing
meeting early to the process provides project clarity and avoids any billing misunderstandings during the
project,
I look forward to working with the City on this project. If you have any questions regarding this letter please
contact me at(961) 956-8304, or by email at here erajwrcoa.a ,ca us.
Sincerely, �
t1Gf _P
�;&�f,� �rtL \ 1 �T
Ruthanne Taylor Berger
Deputy Executive Director
cc; Rick Bishop,WRCOG Executive Director
Jonathan Smith, Public Works Director
Shawn Nelson, Consultant
Donna Dean, Program Manager
4080 lomon Seet, 3rd 61oar Annex,MS1032•Riverside,CA 92501-3609 • 1951)955-7985 •kox 19511787.7991 •www.wrcog,cog.co.us
EXHIBIT D
Estimated Amount of credit/Reimbursement
PID- MUM
WAMOPA Street Improvements* $1,221,78100
Grading $1,393,634.00
Storm Drain* $884,820.00
sonde $42,192,11
Construction Sub Total
FUSIN MNR cjVj-1Z Soils PDC Englmcerng W,874,00
POC Slaking* $75,unoo
GeDcon, $SS,QwQC
Poc Soils $17,55000
Engineering Sub Total $242,424.00
Fees City of Menifee $S5,000,00
Flood Control $92,000.00
EMWD $10,00na
tempts-Grading $10,000.00
Pass-Sub Total mm $167,000.00
Dedication of Fdght-Gf-Way for Matiffea,Road I007,900,00
Right'Or-Way-sub Total $607,000.00
OLI IER CONSULTANTS Urban Cross Roads $14,510.00
Monte Group t35,000.0o
A00an Advisors $10,000.00
Other Consultants Sub Totem $79,510,00
CONSTRUCTION PROJECT MANAGEMEN1 MooLv/DSCM $1,00,000,00
Const,/Project Mgmt Sob Total $100,000,00
Contingency ISM $339,990,00
Mctv Only on asuaricleems
Notes
Fstirsauldcost rased upon low bld and actual expenditures where available
Actual Costs suject to Yalidagon
D-1
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
RECORDED AS BENEFIT TO
THE CITY OF MENIFEE
Note: This document is exempt from the payment of a recording fee pursuant to California
Code Section 27383.
LIEN AGREEMENT
JR 31582)
THIS LIEN AGREEMENT (this "Lien Agreement") is entered into as of July 2, 2013,
by and among the CITY OF MENIFEE, a political subdivision of the State of California("City")
and Eldorado (Riverside) Venture, LLLP, a Delaware limited liability limited partnership
("Owner").
RECITALS
A. Pursuant to Section 2 of that certain Cooperative Agreement dated July 2, 2013,
by and between City and Owner (Riverside County Recorder's Document No. ),
Owner is constructing certain site improvements described on Exhibit B attached hereto (the
"Improvement Work") on or in the vicinity of the real property described on Exhibit A
attached hereto (the "Property"),
B. As part of the construction of the Improvement Work, the City has requested
security to guarantee the completion of the Improvement Work.
C. The City is authorized to accept the security proposed by Owner, known as a lien
agreement, for the completion of the Improvements Work pursuant to City Ordinance No. 2010-
74, which amended County Ordinance No. 460 ("Ordinance 460"), which Ordinance 460 was
adopted by the City upon incorporation.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
US2008 4688639 4
I. Owner's Performance and Obli atg ions
A. Owner hereby grants to City, in accordance with the terms and conditions of this
Lien Agreement, a lien upon the property, as security for the construction of the Improvement
Work more specifically described on Exhibit B attached hereto, and in the estimated amounts
and specified in Exhibit C attached hereto (the "Security Amount"), which Security Amount as
required by Section 17.1(A).5 of Ordinance 460; provided, however, that Owner's obligation
hereunder shall extend only to the actual cost of construction of the Improvements,
notwithstanding that such costs may be more or less than the estimate set forth in Exhibit C.
This lien secures said obligation and the remedies provided herein for breach of said
obligation.
B, The value of the Property is at least 1.5 times the Security Amount, as required by
Section 17.1(A).5 of Ordinance 460.
II. City's Performance and Obligations
A. Following Owner's completion of the Improvement Work, the completion of
which are secured by this Lien Agreement, City shall release the Property from the provisions of
this Lien Agreement and shall execute any necessary release to enable Owner or its transferee to
clear the record of title of the Property so released of the lien herein imposed.
B. In no instances shall this Lien Agreement compel the City to construct the
Improvement Work.
III. Effect of Lien Agreement
A. From the date of recordation of this Lien Agreement, a lien shall attach to the
Property which shall have the priority of a judgment lien in an amount necessary to discharge
Improvement Work.
B. Owner shall have the right to convey or sell fee title to the entire property
encumbered by this Lien Agreement, so long as the purchaser agrees in writing to accept and be
bound by the terms and provisions of this Lien Agreement or has provided alternative security
acceptable to the City per Ordinance 460. Any new lien agreement entered into by a purchaser of
the Property must provide for completion of the Improvements by the then-applicable deadline
therefor pursuant to the operative agreements between the Owner and the City.
C. This Lien Agreement shall expire upon the release of the Property by the City,
except that Owner's obligation to perform and complete the Improvement Work must be
completed and shall not expire but shall remain in full force and effect until satisfactory
completion of the Improvement Work in full compliance plans approved by the City.
US2008 4688639 4
IV. Events of Default
Upon the occurrence of any one of the following events, Owner shall be deemed in
default hereunder:
A. Failure by Owner to complete the Improvement Work by the then-applicable
deadline therefor pursuant to the operative agreements between the Owner and the City.
B. Commencement of any improvement work without replacement bonds.
C. Filing of any proceedings or action by or against Owner to declare Owner
bankrupt or to appoint a receiver or trustee for Owner or to reorganize Owner or to make an
assignment for the benefit of creditors or to do anything else of a similar nature or purpose under
any state or federal bankruptcy or insolvency laws, if such proceedings or actions are not
discharged within one hundred twenty (120) days.
D. Levy of any attachment or writ of execution against Owner and the Property
whereby the Property is taken or occupied or attempted to be taken or occupied by someone
other than Owner and such attachment or execution is not released within sixty (60) days.
V. Cites Remedies
Upon receipt of written notice from the City of the occurrence of any of the events
described in Section IV above, and the failure of the Owner to commence to cure such default
within thirty (30) days and thereafter diligently prosecute such cure to completion, the City may
declare a breach of this Lien Agreement by giving written notice to Owner, and may, at City's
option, exercise any one or more of the following remedies:
A. Enforce this lien by appropriate action in court and the amount of said lien shall
include reasonable attorneys' fees which shall be taxed as a cost in any suit for such
enforcement; and
B. Estimate the cost of the work required to complete the Improvements, and all
Fees, and foreclose said lien in said amount.
All references to Owner in this Section shall be deemed to include Owner's successors,
assignees, and transferees.
VI. General Provisions
A. Recordation. This Lien Agreement shall be recorded by City with the County
Recorder immediately following execution of this Lien Agreement indexed by (1) all parties
hereto, and (2) all parties having any record title interest in the subject real property, pursuant to
Government Code Section 66436, acknowledging subordination of their interests to this Lien
Agreement.
US2008 4688639 4
B. Contingency. This Lien Agreement shall not take effect until it has been approved
by the City Council.
C. Entire Agreement. This Lien Agreement together with all exhibits and other
agreements expressly referred to herein, constitutes the entire agreement between the parties with
respect to the subject matter contained herein. All prior or contemporaneous agreements,
understandings, representations, warranties and statements, oral or written, are superseded.
D. Further Assurances. The parties agree to perform such further acts and to execute
and deliver such additional documents and instruments as may be reasonably required in order to
carry out the provisions of this Lien Agreement and the intentions of the parties.
E. Governing Law. This Lien Agreement shall be governed, interpreted, constructed
and enforced in accordance with the laws of the State of California.
F. Headings. The captions and Section headings used in this Lien Agreement are
inserted for convenience of reference only and are not intended to define, limit or affect the
construction or interpretation of any term or provision hereof.
G. Modification, Waiver. No modification, waiver, amendment or discharge of this
Lien Agreement shall be valid unless the same is in writing and signed by all parties.
H. No Other Inducement. The making, execution and delivery of this Lien
Agreement by the parties hereto has been induced by no representations, statements, warranties
or agreements other than those expressed herein.
I. Severability. If any term, provision, covenant or condition of this Lien Agreement
is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent
jurisdiction, the remainder of this Lien Agreement shall not be affected thereby, and each term,
provision, covenant or condition of this Lien Agreement shall be valid and enforceable to the
fullest extent permitted by law.
[Signature Page Follows]
US2008 4688639 4
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day
and year first written above.
CITY OWNER
CITY OF MEN IFEE, apolitical subdivision of ELDORADO(RIVERSIDE) VENTURE,
the il
rnia L.L.L.P, a Delaware limited liability limited
partnership
By: Eldorado (Riverside)ASLI V, L.L.L.P.,
By: a Delaware limited liability limited
partnership, its sole general partner
ATTEST
By: Eldorado (Riverside) GP, LLC, a
g� Delaware limited liability limited
�u[/ partnership, its sole general partner
Kathy Bennett, City Clerk
By: Avanti Properties Group II, L.L.L.P., a
Approved as to form: Delaware limited liability limited
partnership, its sole manager and
member
By: Avanti Management Corporation, a
Juli iggs, City Attorney Florida corporation, its sole general
partner
By:
Marvin Shapiro, President
US2008 4688639 4
STATE OF FLORIDA )
) ss
COUNTY OF ORANGE )
On June 26, 2013, before me, Bernadette Sostillio, a Notary Public in and for said
State, personally appeared Marvin M. Shapiro, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person or the entity upon behalf of which the person acted
executed the instrument.
I certify under PENALTY OF PERJURY that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY PUBLIC
NOTARY PUBLIC SEAL
BERNADME SOSTILLIO
NOTARY COMMISSION#EE848991
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EXHIBIT B
DESCRIPTION OF THE IMPROVEMENT WORT{
TRACT 31582
Description of the improvement work per plans and bonds listed below.
PLANS
Constriction of improvements per Perimeter Wall Plans prepared by ProjectDesign Consultants
and as approved by the Valley Wide Recreation &Park District
Construction of improvements per Rough Grading Plans prepared by ProjectDesign Consultants
and as approved by the County of Riverside
Construction of improvements per Water & Sewer Plans prepared by ProjectDesign Consultants
and as approved by Eastern Municipal Water District
Construction of improvements per Signing &Striping Plans prepared by ProjectDesign
Consultants and as approved by the County of Riverside Transportation Department
Construction of improvements per Storm Drain Irprovement Plans prepared by ProJeetDesign
Consultants and as approved by the County of Riverside Transportation Department
Construction of improvements per Street Improvement Plans prepared by.Projeetl3esign
Consultants and as approved by the County of Riverside Transportation Department
Construction of improvements per Street.Lighting Plans prepared by ProjectDesign Consultants
and as approved by the County of Riverside Transportation Department
Construction of improvements per Park Plans for Brendle Mills Pocket Park prepared by
Community Works Design Group and as approved by the County of Riverside
Construction of improvements per Permanent Erosion ControUIrrigation for Brendle Mills
prepared by Architerra Design Group and as approved by the County of Riverside
BONDS
Construction of improvements per Faithful Performance Bond for Grading Projects No..
41209005 and Agreement for Grading Projects and/or Erosion Control Improvements for
$62,000
Construction of improvements per Faithful Performance Bond for Grading Projects No,
41209006 and Agreement for Grading Projects and/or Erosion Control Improvements for
$82,000
1a. Construction of improvements per Faithful Perfonnance Bond for Streets, Drainage, Water• &
Sewer No. 41208996 and Agreement for the Construction of Road/Drainage Improvements for
$475,700
lb. Construction of improvements per Material & Labor Bond No. 41208996 and Agreement for
the Construction of Road/Drainage Improvements for$237,850
2a. Construction of improvements per Faithful.Performance Bond for Streets, Drainage, Water &
Sevier No, 41208997 and Agreement for the Construction ofRoad/Drainage Improvements for
$460,600
2b. Construction of improvements per Material & Labor Bond No. 41208997 and Agreement for
the Construction ofRoad/Drainage Improvements for$230,300
3a. Construction of improvements per Faithful Performance Bond for Streets, Drainage, Water&
Sewer No. 41208998 and Agreement for the Construction of Road/Drainage Improvements for
$2,531,200
3b. Construction of improvements per Material & Labor Bond No. 41208998 and Agreement for
the Construction of Road/Drainage Improvements for$1,265,600
Construction of improvements per Subdivision Monument Bond No. 41209001 and Agreement
for the Placement of Survey Monuments for $62,200
EXHIBIT C
Description
Tract31582
Streets& Drainage 2,531,200
Water System 460,600
Sewer System 475,700
Subdivision Monuments 62,200
Rough Grading 82,000
Erosion Control 62,000
Grand Total 3,673,700
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
RECORDED AS BENEFIT TO
THE CITY OF MENIFEE
Note: This document is exempt from the payment of a recording fee pursuant to California
Code Section 27383.
LIEN AGREEMENT
(TR 31582-1)
THIS LIEN AGREEMENT (this "Lien Agreement") is entered into as of July 2, 2013,
by and among the CITY OF MENIFEE, a political subdivision of the State of California("City")
and Eldorado (Riverside) Venture, LLLP, a Delaware limited liability limited partnership
("Owner").
RECITALS
A. Pursuant to Section 2 of that certain Cooperative Agreement dated July 2, 2013,
by and between City and Owner (Riverside County Recorder's Document No. ),
Owner is constructing certain site improvements described on Exhibit B attached hereto (the
"Improvement Work") on or in the vicinity of the real property described on Exhibit A
attached hereto (the "Property").
B. As part of the construction of the Improvement Work, the City has requested
security to guarantee the completion of the Improvement Work.
C. The City is authorized to accept the security proposed by Owner, known as a lien
agreement, for the completion of the Improvements Work pursuant to City Ordinance No. 2010-
74, which amended County Ordinance No. 460 ("Ordinance 460"), which Ordinance 460 was
adopted by the City upon incorporation.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
US2008 4696482 1
I. Owner's Performance and Obligations
A. Owner hereby grants to City, in accordance with the terms and conditions of this
Lien Agreement, a lien upon the property, as security for the construction of the Improvement
Work more specifically described on Exhibit B attached hereto, and in the estimated amounts
and specified in Exhibit C attached hereto (the "Security Amount"), which Security Amount as
required by Section 17.1(A).5 of Ordinance 460; provided, however, that Owner's obligation
hereunder shall extend only to the actual cost of construction of the Improvements,
notwithstanding that such costs may be more or less than the estimate set forth in Exhibit C. ,
This lien secures said obligation and the remedies provided herein for breach of said
obligation.
B. The value of the Property is at least 1.5 times the Security Amount, as required by
Section 17.1(A).5 of Ordinance 460.
II. City's Performance and Obligations
A. Following Owner's completion of the Improvement Work, the completion of
which are secured by this Lien Agreement, City shall release the Property from the provisions of
this Lien Agreement and shall execute any necessary release to enable Owner or its transferee to
clear the record of title of the Property so released of the lien herein imposed.
B. In no instances shall this Lien Agreement compel the City to construct the
Improvement Work.
III. Effect of Lien Agreement
A. From the date of recordation of this Lien Agreement, a lien shall attach to the
Property which shall have the priority of a judgment lien in an amount necessary to discharge
Improvement Work,
B. Owner shall have the right to convey or sell fee title to the entire property
encumbered by this Lien Agreement, so long as the purchaser agrees in writing to accept and be
bound by the terms and provisions of this Lien Agreement or has provided alternative security
acceptable to the City per Ordinance 460. Any new lien agreement entered into by a purchaser of
the Property must provide for completion of the Improvements by the then-applicable deadline
therefor pursuant to the operative agreements between the Owner and the City.
C. This Lien Agreement shall expire upon the release of the Property by the City,
except that Owner's obligation to perform and complete the Improvement Work must be
completed and shall not expire but shall remain in full force and effect until satisfactory
completion of the Improvement Work in full compliance plans approved by the City.
US2008 4696482 1
IV. Events of Default
Upon the occurrence of any one of the following events, Owner shall be deemed in
default hereunder:
A. Failure by Owner to complete the Improvement Work by the then-applicable
deadline therefor pursuant to the operative agreements between the Owner and the City.
B. Commencement of any improvement work without replacement bonds.
C. Filing of any proceedings or action by or against Owner to declare Owner
bankrupt or to appoint a receiver or trustee for Owner or to reorganize Owner or to make an
assignment for the benefit of creditors or to do anything else of a similar nature or purpose under
any state or federal bankruptcy or insolvency laws, if such proceedings or actions are not
discharged within one hundred twenty (120) days.
D. Levy of any attachment or writ of execution against Owner and the Property
whereby the Property is taken or occupied or attempted to be taken or occupied by someone
other than Owner and such attachment or execution is not released within sixty (60) days.
V. City's Remedies
Upon receipt of written notice from the City of the occurrence of any of the events
described in Section IV above, and the failure of the Owner to commence to cure such default
within thirty (30) days and thereafter diligently prosecute such cure to completion, the City may
declare a breach of this Lien Agreement by giving written notice to Owner, and may, at City's
option, exercise any one or more of the following remedies:
A. Enforce this lien by appropriate action in court and the amount of said lien shall
include reasonable attorneys' fees which shall be taxed as a cost in any suit for such
enforcement; and
B. Estimate the cost of the work required to complete the Improvements, and all
Fees, and foreclose said lien in said amount.
All references to Owner in this Section shall be deemed to include Owner's successors,
assignees, and transferees.
VI. General Provisions
A. Recordation. This Lien Agreement shall be recorded by City with the County
Recorder immediately following execution of this Lien Agreement indexed by (1) all parties
hereto, and (2) all parties having any record title interest in the subject real property, pursuant to
Government Code Section 66436, acknowledging subordination of their interests to this Lien
Agreement.
US2008 4696482 1
B. Contingency. This Lien Agreement shall not take effect until it has been approved
by the City Council.
C. Entire Agreement. This Lien Agreement together with all exhibits and other
agreements expressly referred to herein, constitutes the entire agreement between the parties with
respect to the subject matter contained herein. All prior or contemporaneous agreements,
understandings, representations, warranties and statements, oral or written, are superseded.
D. Further Assurances. The parties agree to perform such further acts and to execute
and deliver such additional documents and instruments as may be reasonably required in order to
carry out the provisions of this Lien Agreement and the intentions of the parties.
E. Governing Law. This Lien Agreement shall be governed, interpreted, constructed
and enforced in accordance with the laws of the State of California.
F. Headings. The captions and Section headings used in this Lien Agreement are
inserted for convenience of reference only and are not intended to define, limit or affect the
construction or interpretation of any term or provision hereof.
G. Modification. Waiver.No modification, waiver, amendment or discharge of this
Lien Agreement shall be valid unless the same is in writing and signed by all parties.
H. No Other Inducement. The making, execution and delivery of this Lien
Agreement by the parties hereto has been induced by no representations, statements, warranties
or agreements other than those expressed herein.
I. Severability. If any term, provision, covenant or condition of this Lien Agreement
is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent
jurisdiction, the remainder of this Lien Agreement shall not be affected thereby, and each term,
provision, covenant or condition of this Lien Agreement shall be valid and enforceable to the
fullest extent permitted by law.
[Signature Page Follows]
US2008 4696482 1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first written above.
CITY OWNER
CITY OF MENIFEE, a political subdivision of ELDORADO (RIVERSIDE) VENTURE,
the State of rnia L.L.L.P, a Delaware limited liability limited
partnership
By: Eldorado(Riverside) ASLI V, L.L.L.P.,
By: a Delaware limited liability limited
partnership, its sole general partner
ATTEST
By: Eldorado (Riverside) GP, LLC, a
Delaware limited liability limited
1 partnership, its sole general partner
Kathy Bennett, City Clerk
By: Avanti Properties Group ❑, L.L.L.P., a
Approved as to form: Delaware limited liability limited
partnership, its sole manager and
member
Julie ggs, C,cityfiAtt�or�n—e/4y'7 By: Avanti Management Corporation, a
Florida corporation, its sole general
partner
By:
Marvin Shapiro, President
US2008 4696482 1
STATE OF FLORIDA )
) ss
COUNTY OF ORANGE )
On June 26, 2013, before me, Bernadette Sostillio, a Notary Public in and for said
State, personally appeared Marvin M. Shapiro, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person or the entity upon behalf of which the person acted
executed the instrument.
I certify under PENALTY OF PERJURY that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY PUBLIC
NOTARY PUBLIC SEAL
BERNADETTE SOSTILLIO
NMo��Y COMMISSION#EE848991
STATE OF EXPIRES NOV 17 2014
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EXHIBIT B
DESCRIPTION OF THE IMPROVEMENT WORK,
TRACT 31582-1
Description of the improvement work per plaas and bonds listed below.
PLANS
Constructions of improvements per Perimeter Wall Plans prepared by ProjectDesign Consultants
and as approved by the Valley Wide Recreation& Park District
Construction of improvements per Rough Grading Plans prepared by ProjectDesign Consultants
and as approved by the County of Riverside
Construction of improvements per Water, Sewer &Recycled Water Plans prepared by
ProjectDesign Consultants and as approved by Eastern Municipal Water District
Construction of improvements per On-Site Signing & Striping Plans prepared by ProjectDesign
Consultants and as approved by the County of Riverside Transportation Department
Construction of improvements per Salt Creek—Trailhead Dr. Storm Drain Stage 2 Salt Creek-
Redwood Street Debris Basin hrrprovement Plans prepared by ProjectDesign Consultants and as
approved by the County of Riverside
Construction of improvements per Streetscape Plans prepared by Community Works Design
Group and as approved by the County of Riverside Transportation Department
Construction of improvements per Permanent Erosion Control Plans for Brendle Mills prepared
by Architerra Design Group and as approved by the County of Riverside
Construction of improvements per Water Quality Basins prepared by Architerra Design Group
and as approved by the: County of Riverside Transportation Department
BONDS
Construction of improvements per Faithful Performance Bond for Grading Projects No.
41209002 and Agreement for Grading Projects and/or Erosion Control hnprovements for
$120,500
Construction of improvements per Faithful Performance Bond for Grading Projects No,
41209003 Agreement for Grading Projects acid/or Erosion Control Improvements for$116,500
Construction of improvements per Faithful Performance Bond for Grading 'Projects No.
41209004 and Agreement for Grading Projects and/or Erosion Control Improvements for
$25,000
Construction of improvements per Subdivision Monument Bond No. 41208999 and Agreement
for the Placement of Survey Monuments for$79,200
EXHIBIT C
Description
Tract31582-1
Subdivision Monuments 79,200
Rough Grading 116,500
Rough Grading 25,000
Erosion Control 120,500
Grand Total 341,200
IMPROVEMENT and CREDIT /REIMBURSEMENT AGREEMENT
TRANSPORTATION UNIFORM MITIGATION FEE PROGRAM
This IMPROVEMENT AND CREDIT AGREEMENT (this "Agreement") is entered
into as of the 2nd day of July, 2013, by and between the City of Menifee, a California Municipal
Corporation ("City"), and Eldorado Riverside Venture L.L.L.P., a Delaware limited liability
limited partnership, with its principal place of business at 923 North Pennsylvania Avenue,
Winter Park, Florida 32789 ("Developer"), City and Developer are sometimes hereinafter
referred to individually as "Party" and collectively as "Parties".
RECITALS
WHEREAS, Developer owns 90 acres of real property located within the City of
Menifee California, which is more specifically described in the legal description set forth in
Exhibit"A", attached hereto and incorporated herein by this reference (the"Property");
WHEREAS, Developer has previously obtained from City certain entitlements and/or
permits for the construction of improvements on the Property, which are more particularly
described as 269 dwelling units within Tracts 31582 and 31582-1 (the "Project"), which include
improvements to Menifee Road;
WHEREAS, the City is a member agency of the Western Riverside Council of
Governments ("WRCOG"), a joint powers agency comprised of the County of Riverside and 17
cities located in Western Riverside County, and WRCOG is the administrator for the
Transportation Uniform Mitigation Fee ("TUMF") Program;
WHEREAS, as part of the TUMF Program, the City has adopted the "Transportation
Uniform Mitigation Fee Nexus Study: 2009 Update" ("2009 Nexus Study");
WHEREAS, as a condition to City's prior approval of the Project, City required
Developer to construct certain street and transportation system improvement(s) of regional
importance (as hereinafter defined as the TUMF Improvements);
WHEREAS, pursuant to the TUMF Program, the City requires Developer to pay the
TUMF which covers the Developer's fair share of the costs to deliver those TUMF
Improvements that help mitigate the Project's traffic impacts and burdens on the Regional
System of Highways and Arterials (also kriown as the "TUMF Network"), generated by the
Project and that are necessary to protect the safety, health and welfare of persons that travel to
and from the Project using the TUMF Network;
WHEREAS, the TUMF Improvements have been designated as having Regional or
Zonal Significance as further described in the 2009 Nexus Study and the 5 year Transportation
Improvement Program as may be amended;
WHEREAS, City and Developer now desire to enter into this Agreement for the
following purposes: (1) to provide for the timely delivery of the TUMF Improvements, (2) to
-1-
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
ensure that delivery of the TUMF Improvements is undertaken as if the TUMF Improvements
were constructed under the direction and authority of the City, (3) to provide a means by which
the Developer's costs for project delivery of the TUMF Improvements and related right-of-ways
is offset against Developer's obligation to pay the applicable TUMF for the Project in
accordance with the TUMF Administrative Plan adopted by WRCOG, and (4) to provide a
means, subject to the separate approval of WRCOG, for Developer to be reimbursed to the extent
the actual and authorized costs for the delivery of the TUMF Improvements exceeds Developer's
TUMF obligation.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable
consideration, the adequacy of which is hereby acknowledged, Developer and City hereby
agree as follows:
TERMS
1.0 Incorporation of Recitals. The Parties hereby affirm the facts set forth in the
Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
2.0 Construction of TUMF Improvements. Provided City advances the first
$1,500,000 of the costs thereof in accordance with the Cooperative Agreement of even date
herewith between City and Developer, Developer shall cause to be constructed, at its own cost,
expense and liability to the extent of amounts in excess of the foregoing $1,500,000 amount to be
advanced by City, certain street and transportation system improvements generally described as
construction of four travel lanes and dedication of Right of Way (ROW) improvements to
Menifee Road between Aldergate Drive and Simpson Road, and as shown more specifically on
the plans, profiles, and specifications which have been prepared on behalf of Developer and have
previously been approved by City, and which are incorporated herein by this reference (the
"TUMF Improvements"). Construction of the TUMF Improvements shall include any transitions
and/or other incidental work deemed necessary for drainage or public safety. Developer shall be
responsible for the replacement, relocation, or removal of any component of any existing public
or private improvement, if any, in conflict with the construction or installation of the TUMF
Improvements. Such replacement, relocation, or removal shall be performed to the complete
satisfaction of City and the owner of such improvement. Developer further promises and agrees
to provide all equipment, tools, materials, labor, tests, design work, and engineering services
necessary to fully and adequately complete the TUMF Improvements.
2.1 Pre-approval of Plans and Specifications. Developer is prohibited from
commencing work on any portion of the TUMF Improvements until all plans and specifications
for the TUMF Improvements have been submitted to and approved by City. Approval by City
shall not relieve Developer from ensuring that all TUMF Improvements conform to all other
requirements and standards set forth in this Agreement. City agrees that all approvals of plans
and specifications for the Project previously issued by Riverside County remain in force and
effect and are unaffected by this Agreement, and no further approval thereof shall be required.
2.2 Permits and Notices. Prior to commencing any work, Developer shall, at
its sole cost, expense and liability to the extent of amounts in excess of the foregoing $1,500,000
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amount to be advanced by City, obtain all necessary permits and licenses and give all necessary
and incidental notices required for the lawful construction of the TUMF Improvements and
performance of Developer's obligations under this Agreement. Developer shall conduct the
work in full compliance with the regulations, rules, and other requirements contained in any
permit or license issued to Developer.
2.3 Public Works Requirements. In order to insure that the TUMF
Improvements will be constructed as if they had been constructed under the direction and
supervision, or under the authority of, City, Developer shall comply with all of the following
requirements with respect to the construction of the TUMF Improvements:
(a) Developer shall obtain bids for the construction of the TUMF
Improvements, in conformance with the standard procedures and requirements of City with
respect to its public works projects, or in another manner which is approved by the Public Works
Department.
(b) The contract or contracts for the construction of the TUMF
Improvements shall be awarded to the responsible bidder(s) submitting the lowest responsive
bid(s) for the construction of the TUMF Improvements.
(c) The specifications and bid and contract documents shall require all
such contractors to pay prevailing wages (in accordance with Articles 1 and 2 of Chapter 1, Part
7, Division 2 of the Labor Code) and to otherwise comply with applicable provisions of the
Labor Code, the Government Code and the Public Contract Code relating to public works
projects of cities/counties and as required by the procedures and standards of with respect to the
construction of its public works projects or as otherwise directed by the Public Works
Department.
(d) All such contractors shall be required to provide proof of insurance
coverage throughout the term of the construction of the TUMF Improvements which they will
construct in conformance with City's standard procedures and requirements.
(e) Developer and all such contractors shall comply with such other
requirements relating to the construction of the TUMF Improvements, to the extent required as a
result of changes in applicable laws, during the progress of construction thereof.
Owner shall provide proof to City, at such intervals and in such form as City may require, that
the foregoing requirements have been satisfied as to the TUMF Improvements.
2A Quality of Work; Compliance With Laws and Codes. The construction
plans and specifications for the TUMF Improvements shall be prepared in accordance with all
applicable federal, state and local laws, ordinances, regulations, codes, standards, and other
requirements. The TUMF hmprovements shall be completed in accordance with all approved
maps, plans, specifications, standard drawings, and special amendments thereto on file with City,
as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards,
and other requirements applicable at the time work is actually commenced.
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2.5 Standard of Performance. Developer's contractors shall perform all work
required in constructing the TUMF Improvements in a skillful and workmanlike manner, and
consistent with the standards generally recognized as being employed by professionals in the
same discipline in the State of California. Developer represents and maintains that its
contractors shall be skilled in the professional calling necessary to perform the work. Developer
warrants that all of its contractors shall have sufficient skill and experience to perform the work
assigned to them, and that they shall have all licenses, permits, qualifications and approvals of
whatever nature that are legally required to perform the work, and that such licenses, permits,
qualifications and approvals shall be maintained throughout the term of this Agreement.
2.6 Alterations to TUMF Improvements. All work shall be done and the
TUMF Improvements completed as shown on approved plans and specifications, and any subse-
quent alterations thereto.
3.0 Maintenance of TUMF Improvements. City shall not be responsible or liable for
the maintenance or care of the TUMF Improvements until City approves and accepts them. City
shall exercise no control over the TUMF Improvements until accepted. Any use by any person
of the TUMF Improvements, or any portion thereof, shall be at the sole and exclusive risk of
Developer and it contractors at all times prior to City's acceptance of the TUMF Improvements.
Developer shall cause all of the TUMF Improvements to be maintained in a state of good repair
until they are completed and approved and accepted by City, and until the security for the
performance of this Agreement is released. It shall be Developer's responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work
when notified to do so by City. If Developer fails to properly prosecute its maintenance
obligation under this section, City may do all work necessary for such maintenance and the cost
thereof shall be the responsibility of Developer and its surety under this Agreement. City shall
not be responsible or liable for any damages or injLury of any nature in any way related to or
caused by the TUMF Improvements or their condition prior to acceptance.
4.0 Fees and Charges. Developer shall, at its sole cost, expense and liability to the
extent of amounts in excess of the foregoing $1,500,000 amount to be advanced by City, pay all
fees, charges, and taxes arising out of the construction of the TUMF Improvements, including,
but not limited to, all plan check, design review, engineering, inspection, sewer treatment
connection fees, and other service or impact fees established by City.
5.0 City/County Inspection of TUMF Improvements. Developer shall, at its sole cost,
expense and liability to the extent of amounts in excess of the foregoing $1,500,000 amount to be
advanced by City, and at all times during construction of the TUMF Improvements, maintain
reasonable and safe facilities and provide safe access for inspection by City of the TUMF
Improvements and areas where construction of the TUMF Improvements is occurring or will
occur.
6.0 Liens. Upon the expiration of the time for the recording of claims of liens as
prescribed by Sections 3115 and 3116 of the Civil Code with respect to the TUMF
Improvements, Developer shall provide to City such evidence or proof as City shall require that
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all persons, firms and corporations supplying work, labor, materials, supplies and equipment to
the construction of the TUMF Improvements, have been paid, and that no claims of liens have
been recorded by or on behalf of any such person, firm or corporation. Rather than await the
expiration of the said time for the recording of claims of liens, Developer may elect to provide to
City a title insurance policy or other security acceptable to City guaranteeing that no such claims
of liens will be recorded or become a lien upon any of the Property.
7.0 Acceptance of TUMF Improvements; As-Built or Record Drawings. If the
TUMF Improvements are properly completed by Developer and approved by City, and if they
comply with all applicable federal, state and local laws, ordinances, regulations, codes,
standards, and other requirements, City shall be obligated to accept the TUMF Improvements.
City may, in its sole and absolute discretion, accept fully completed portions of the TUMF
Improvements prior to such time as all of the TUMF Improvements are complete, which shall
not release or modify Developer's obligation to complete the remainder of the TUMF
Improvements. Upon the total or partial acceptance of the TUMF Improvements by City,
Developer shall file with the Recorder's Office of the County of Riverside a notice of completion
for the accepted TUMF Improvements in accordance with California Civil Code section 3093
(the"Notice of Completion"), at which time the accepted TUMF Improvements shall become the
sole and exclusive property of City without any payment therefor. Notwithstanding the
foregoing, City will not be obligated to accept any TUMF Improvements unless and until
Developer provides one (1) set of"as-built" or record drawings or plans to the City for all such
TUMF Improvements. The drawings shall be certified and shall reflect the condition of the
TUMF hmprovements as constructed, with all changes incorporated therein.
8.0 Warranty and Guarantee. Developer hereby warrants and guarantees all the
TUMF Improvements against any defective work or labor done, or defective materials furnished
in the performance of this Agreement, including the maintenance of the TUMF Improvements,
for a period of one (1) year following completion of the work and acceptance by the City (the
"Warranty"). During the Warranty, Developer shall cause to be repaired, replaced, or
reconstructed any defective or otherwise unsatisfactory portion of the TUMF Improvements, in
accordance with the ordinances, resolutions, regulations, codes, standards, or other requirements
of City in effect as of the time of the TUMF Improvements were permitted (i.e., Developer shall
not be required to comply with any such requirement first becoming effective after permitting).
All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost,
expense, and liability of Developer and its surety. As to any TUMF Improvements which have
been repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby
agree to extend the Warranty for an additional one (1) year period following completion and
City's acceptance of the repaired, replaced, or reconstructed TUMF Improvements. Nothing
herein shall relieve Developer from any other liability it may have under federal, state, or local
law to repair, replace, or reconstruct any TUMF Improvement following expiration of the
Warranty or any extension thereof. Developer's warranty obligation under this section shall
survive the expiration or termination of this Agreement.
9.0 Administrative Costs. If Developer fails to construct and install all or any part of
the TUMF Improvements, or if Developer fails to comply with any other obligation contained
herein, Developer and its surety shall be jointly and severally liable to City for all administrative
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expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining
compliance with this Agreement or in processing any legal action or for any other remedies
permitted by law.
10.0 Default;Notice; Remedies.
10.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely
complete any obligation, term, or condition of this Agreement, or if there is a violation of any
federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may
at any time thereafter make written demand upon Developer or its surety, or both, to immediately
remedy the default or violation ("Notice"). Developer shall cause the work required to remedy
the default or violation to be commenced within ten (10) days of the Notice. If the default or
violation constitutes an immediate threat to the public health, safety, or welfare, City may
provide the Notice verbally, and Developer shall substantially commence the required work
within forty eight(48) hours thereof.
10.2 Failure to Remedy; City Action. If the work required to remedy the
noticed default or violation is not timely commenced and diligently prosecuted to a completion,
City may complete all remaining work, arrange for the completion of all remaining work, and/or
conduct such remedial activity as in its sole and absolute discretion it believes is required to
remedy the default or violation. All such work or remedial activity shall be at the sole and
absolute cost, expense, and liability of Developer and its surety, without the necessity of giving
any further notice to Developer or surety. City's right to take such actions shall in no way be
limited by the fact that Developer or its surety may have constructed any of the TUMF
Improvements at the time of City's demand for performance. In the event City elects to
complete or arrange for completion of the remaining work and the TUMF Improvements, City
may require all work by Developer or its surety to cease in order to allow adequate coordination
by City.
10.3 Other Remedies. No action by City pursuant to this Section 10.0 et seq.
shall prohibit City from exercising any other right or pursuing any other legal or equitable
remedy available under this Agreement or any federal, state, or local law. City may exercise its
rights and remedies independently or cumulatively, and City may pursue inconsistent remedies,
City may institute an action for damages, injunctive relief, or specific performance.
11.0 Security, Surety Bonds. Prior to the commencement of any work on the TUMF
Improvements, Developer or its contractor shall provide City with surety bonds in the amounts
and under the terms set forth below ("Security"). The amount of the Security shall be based on
the estimated actual costs to construct the TUMF Improvements, as reasonably determined by
City after Developer has awarded a contract for construction of the TUMF Improvements to the
lowest responsive and responsible bidder in accordance with this Agreement (the "Estimated
Costs"). If City determines, in its reasonable judgment, that the Estimated Costs have changed,
Developer or its contractor shall adjust the Security in the amount requested by City.
Developer's compliance with this Section 11.0 et seq. shall in no way limit or modify
Developer's indemnification obligation provided in Section 12.0 of this Agreement.
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11.1 Performance Bond. To guarantee the faithful performance of the TUMF
Improvements acid all the provisions of this Agreement, to protect City if Developer is in default
as set forth in Section 10.0 et sec, of this Agreement, and to secure the one-year Warranty,
Developer or its contractor shall provide City a faithful performance bond in an amount which
sum shall be not less than one hundred percent (100%) of the Estimated Costs, The City may, in
its sole and absolute discretion, partially release a portion or portions of the security provided
under this section as the TUMF Improvements are accepted by City, provided that Developer is
not in default on any provision of this Agreement and the total remaining security is not less than
ten percent (10%) of the Estimated Costs. All security provided Linder this section shall be
released at the end of the Warranty Period, or any extension thereof as provided in Section 8.0 of
this Agreement, provided that Developer is not in default Linder any provision of this Agreement.
11.2 Labor & Material Bond. To secure payment to the contractors,
subcontractors, laborers, materialmen, and other persons furnishing labor, materials, or
equipment for performance of the TUMF Improvements and this Agreement, Developer or its
contractor shall provide City a labor and materials bond in an amount which sum shall not be
less than one hundred percent (100%) of the Estimated Costs. The security provided under this
section shall be released by City six (6) months from the date City accepts the TUMF
Improvements. The amount of such security shall be reduced by the total of all stop notice or
mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of
such claims for reimbursement of City's anticipated administrative and legal expenses arising out
of such claims.
11.3 Additional Requirements. The surety for any surety bonds provided as
Security shall have a current A.M. Best rating of at least "A" and FSC-VIII, shall be licensed to
do business in California, and shall be reasonably satisfactory to City. Notwithstanding the
foregoing, City hereby expressly approves Capitol Indemnity Corporation and/or Platte River
Insurance Company as the surety issuing the required surety bonds. As part of the obligation
secured by the Security and in addition to the face amount of the Security, Developer, its
contractor or the surety shall secure the costs and reasonable expenses and fees, including
reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this
Agreement. Developer, its contractor and the surety shall stipulate and agree that no change,
extension of time, alteration, or addition to the terms of this Agreement, the TUMF
Improvements, or the plans and specifications for the TUMF Improvements shall in any way
affect its obligation on the Security.
11 A Evidence and Incorporation of Security. Evidence of the Security shall be
provided on the forms set forth in Exhibit "B", unless other forms are deemed acceptable by the
City, and when such forms are completed to the satisfaction of City, the forms and evidence of
the Security shall be attached hereto as Exhibit"B" and incorporated herein by this reference.
12.0 Indemnification. Developer shall defend, indemnify, and hold harmless City, its
elected officials, employees, and agents from any and all actual or alleged claims, demands,
causes of action, liability, loss, damage, or injury to property or persons, including wrongful
death, whether imposed by a court of law or by administrative action of any federal, state, or
local governmental agency, arising out of or incident to any acts, omissions, negligence, or
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willful misconduct of Developer, its employees, contractors, or agents in the performance of this
Agreement ("Claims"). This indemnification includes, without limitation, the payment of all
penalties, fines, judgments, awards, decrees, attorneys fees, and related costs or expenses, and
the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses
and costs incurred by each of them. This indemnification excludes any Claim to the extent
caused by the negligence or willful misconduct of City. Developer's obligation to indemnify
shall survive the expiration or termination of this Agreement, and shall not be restricted to
insurance proceeds, if any, received by City, its elected officials, employees, or agents.
13.0 Insurance.
13.1 Types; Amounts. Developer shall procure and maintain, and shall require
its contractors to procure and maintain, during performance of this Agreement, insurance of the
types and in the amounts described below (the "Required Insurance"). If any of the Required
Insurance contains a general aggregate limit, such insurance shall apply separately to this
Agreement or be no less than two times the specified occurrence limit.
13.1.1 General Liability. Occurrence version general liability insurance, or
equivalent form, with a combined single limit of not less than Two Million Dollars ($2,000,000)
per occurrence for bodily injury, personal injury, and property damage.
13.1.2 Business Automobile Liability. Business automobile liability insurance,
or equivalent form, with a combined single limit of not less than One Million Dollars
($1,000,000) per occurrence. Such insurance shall include coverage for the ownership,
operation, maintenance, use, loading, or unloading of any auto owned, leased, hired, or borrowed
by the insured or for which the insured is responsible.
13.1.3 Workers' Compensation. Workers' compensation insurance with limits as
required by the Labor Code of the State of California and employers' liability insurance with
limits of not less than One Million Dollars ($1,000,000)per occurrence, at all times during which
insured retains employees.
13.1.4 Professional Liability. For any consultant or other professional who will
engineer or design the TUMF Improvements, liability insurance for errors and omissions with
limits not less than Two Million Dollars ($2,000,000) per occurrence, shall be procured and
maintained for a period of five (5) years following completion of the TUMF Improvements.
Such insurance shall be endorsed to include contractual liability.
13.2 Deductibles. Any deductibles or self-insured retentions must be declared
to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects City, its elected officials, officers,
employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial
guarantee satisfactory to City guaranteeing payment of losses and related investigation costs,
claims, and administrative and defense expenses.
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13.3 Additional Insured; Separation of Insureds. The Required Insurance,
except for the professional liability and workers' compensation insurance, shall name City, its
elected officials, officers, employees, and agents as additional insureds with respect to work
performed by or on behalf of Developer or its contractors, including any materials, parts, or
equipment furnished in connection therewith. The Required Insurance shall contain standard
separation of insureds provisions, and shall contain no special limitations on the scope of its
protection to City, its elected officials, officers, employees, or agents.
13.4 Primary Insurance; Waiver of Subro ag tion. The Required Insurance shall
be primary with respect to any insurance or self-insurance programs covering City, its elected
officials, officers, employees, or agents. The policy required for workers' compensation
insurance shall provide that the insurance company waives all right of recovery by way of
subrogation against City in connection with any damage or harm covered by such policy.
13.5 Certificates; Verification. Developer and its contractors shall furnish City
with original certificates of insurance and endorsements effecting coverage for the Required
Insurance. The certificates and endorsements for each insurance policy shall be signed by a
person authorized by that insurer to bind coverage on its behalf. All certificates and
endorsements must be received and approved by City before work pursuant to this Agreement
can begin. City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
13.6 Term; Cancellation Notice. Developer and its contractors shall maintain
the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or
endorsement which will expire prior to that date. All policies shall be endorsed to provide that
the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire
except on thirty (30) days' prior written notice to City.
13.7 Insurer Rating. Unless approved in writing by City, all Required
Insurance shall be placed with insurers licensed to do business in the State of California and with
a current A.M. Best rating of at least"A" and FSC-VIII.
14.0 TUMF Credit.
14.1 Developer's TUMF Oblieation. Developer hereby agrees and accepts
that as of the date of this Agreement, the amount that is required to be paid to City as the TUMF
for the Project pursuant to City's TUMF Resolution is Two Million Three Hundred and Eighty
Six Thousand Eight Hundred and Thirty Seven Dollars ($2,386,837) ($8,873 per lot) (the
"TUMF Obligation"). This TUMF Obligation shall be initially determined under the nexus
study and fee schedule in effect for City at the time Developer submits a building permit
application for the TUMF Improvements. Notwithstanding, this TUMF Obligation does not
have to be paid for any lot in the Project uitil the Certificate of Occupancy for such lot is
obtained.
14.2 Limited Period of Adjustment. Not Applicable
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14.3 Fee Adjustments. Notwithstanding the foregoing, Developer agrees that
this Agreement shall not estop City from adjusting the TUMF in accordance with the provisions
of City's TUMF Resolution. Developer agrees and acknowledges that Developer's final TUMF
Obligation for the Project shall be calculated when the building permit application is submitted
and in accordance with the provisions of City's TUMF Resolution in effect at the time at the
time Developer submits a building permit application for the TUMF Improvements.
14.4 Credit Offset Against TUMF Obligation. In accord with the process set
forth in Exhibit E and pursuant to City's TUMF Resolution and as consideration for Developer's
obligation under this Agreement for the delivery of TUMF Improvements, credit shall be applied
by City to offset the TUMF Obligation (the "Credit") subject to adjustment and reconciliation
trader 14.6 of this Agreement. City and Developer hereby agree that the amount of the Credit
shall be applied after Developer has initiated the process of project delivery of TUMF
Improvements to the lowest responsible bidder in accordance with this Agreement. Developer
further agrees that the dollar amount of the Credit shall be equal to the lesser of: (A) the bid
amount set forth in the contract awarded to the lowest responsible bidder; and (B) the unit cost
assumptions for the TUMF Improvements in effect at the time of the contract award, as such
assumptions are identified and determined in the 2009 Nexus Study and the TUMF
Administrative Plan adopted by WRCOG (the "Unit Cost Assumptions"). Exhibit G is an
estimate of anticipated fee credit as of the date of this agreement.
The bid amount and the Unit Cost Assumptions shall hereafter be collectively
referred to as the `Estimated Cost". At no time will the Credit exceed the Developer's TUMF
Obligation. If the dollar amount of the Estimated Cost exceeds the dollar amount of the TUMF
Obligation, Developer will be deemed to have completely satisfied the TUMF Obligation for the
Project and the Reimbursement Agreement(as described in Section 14.7 of this Agreement) shall
apply. If the dollar amount of the Estimated Cost is less than the dollar amount of the TUMF
Obligation, Developer agrees the Credit shall be applied to offset the TUMF Obligation as
follows:
(1) For residential units in the Project, the Credit shall be applied to
assigned residential units within the Project to offset and/or satisfy the TUMF Obligation. The
residential traits for which the TUMF Obligation has been offset and/or satisfied by use of the
Credit, and the amount of offset applicable to each unit, shall be identified in the notice provided
by Developer to City pursuant to this section.
(2) For commercial and industrial structures in the Project, the Credit
shall be applied to assigned commercial and industrial development within the Project to offset
and/or satisfy the TUMF Obligation. The commercial or industrial structure(s) for which the
TUMF Obligation has been offset and/or satisfied by use of the Credit, and the amount of offset
applicable to such structure(s), shall be identified in the notice provided by Developer to City
pursuant to this section.
City shall provide Developer written notice of the determinations that City makes pursuant to
this section, including how the Credit is applied to offset the TUMF Obligation as described
above.
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14.5 Verified Cost of the TUMF Improvements. Upon recordation of the
Notice of Completion for the TUMF Improvements and acceptance of the TUMF Improvements
by City, Developer shall submit to the City Public Works Director or his or her designee the
information set forth in the attached Exhibit "C". The City Public Works Director, or his or her
designee, shall use the information provided by Developer to calculate the total actual costs
incurred by Developer in delivering the TUMF Improvements covered under this Agreement(the
"Verified Costs"). The City Public Works Director will use his or her best efforts to determine
the amount of the Verified Costs and provide Developer written notice thereof within thirty (30)
calendar days of receipt of all the required information from Developer.
14.6 Reconciliation: Final Credit Offset Against TUMF Obligation. The actual
amount of Credit that shall be applied by City to offset the TUMF Obligation shall be equal to
the lesser of: (A) the Verified Costs; and (B) Unit Cost Assumptions for the TUMF
Improvements as determined in accordance with Section 14.4 of this Agreement (the "Actual
Credit"), No Actual Credit will be awarded until the Verified Costs are determined through the
reconciliation process.
14.6.1 TUMF Balance. If the dollar amount of the Actual Credit is less
than the dollar amount of the TUMF Obligation (a "TUMF Balance"), the City Public Works
Director shall provide written notice to Developer of the amount of the TUMF Balance and
Developer shall pay the TUMF Balance in accordance with City's determination to fully satisfy
the TUMF Obligation (see Exhibit"F" - Example "A").
14.6.2 TUMF Reimbursement. If the dollar amount of the Actual Credit ,
exceeds the TUMF Obligation, Developer will be deemed to have fully satisfied the TUMF
Obligation for the Project and may apply for a reimbursement agreement, to the extent
applicable, as provided in Section 14.7 of this Agreement. City shall provide Developer written
notice of the determinations that City makes pursuant to this section (see Exhibit "F" - Example
"B').
14.6.3 TUMF Overpayment. If the dollar amount of the Actual Credit
exceeds the Estimated Cost, but is less than the TUMF Obligation, but the Actual Credit plus
additional monies collected by City for the TUMF Obligation exceed the TUMF Obligation (a
"TUMF Overpayment"), the TUMF Obligation for the Project will be deemed to have been fully
satisfied, and Developer shall be entitled to a reftimd. The City Public Works Director shall
provide written notice to WRCOG and Developer of the amotmt of the TUMF Overpayment and
WRCOG shall refund Developer in accordance with the City determination (see Exhibit "F" -
Example C).
14.7 Reimbursement Agreement. If authorized under either Section 14.4 or
Section 14.6, Developer shall be entitled to reimbursement for the amount by which the Actual
Credit exceeds the TUMF Obligation, as determined pursuant to Section 14.4 of this Agreement,
the City, and the TUMF Administrative Plan adopted by WRCOG (the "Reimbursement
Agreement"), City and Developer are executing, as part of this Agreement, the Reimbursement
Agreement attached hereto as Exhibit "D" which is incorporated herein by this reference as if set
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forth in full, which contains the terms and conditions applicable to the reimbursement. The
Parties agree that the Reimbursement Agreement shall be subject to all terms and conditions of
this Agreement.
15.0 Miscellaneous.
15.1 Assignment. Developer may assign all or a portion of its rights pursuant to
this Agreement to a purchaser of a portion or portions of the Property ("Assignment").
Developer and such purchaser and assignee ("Assignee") shall provide to City such reasonable
proof as it may require that Assignee is the purchaser of such portions of the Property. Any
assignment pursuant to this section shall not be effective unless and until Developer and
Assignee have executed an assignment agreement with City in a form reasonably acceptable to
City, whereby Developer and Assignee agree, except as may be otherwise specifically provided
therein, to the following: (1) that Assignee shall receive all or a portion of Developer's rights
pursuant to this Agreement, including such credit as is determined to be applicable to the portion
of the Property purchased by Assignee pursuant to Section 14.0 et seq, of this Agreement; and
(2) that Assignee shall be bound by all applicable provisions of this Agreement.
15.2 Relationship Between the Parties. The Parties hereby mutually agree that
this Agreement shall not operate to create the relationship of partnership,joint venture, or agency
between City and Developer. Developer's contractors are exclusively and solely under the
control and dominion of Developer. Nothing herein shall be deemed to make Developer or its
contractors an agent or contractor of City.
15.3 Warranty as to Property Ownership; Authority to Enter Agreement.
Developer hereby warrants that it owns fee title to the Property and that it has the legal capacity
to enter into this Agreement. Each Party warrants that the individuals who have signed this
Agreement have the legal power, right, and authority make this Agreement and bind each
respective Party.
15.4 Prohibited Interests. Developer warrants that it has not employed or
retained any company or person, other than a bona fide employee or contractor working for
Developer, to solicit or secure this Agreement. Developer also warrants that it has not paid or
agreed to pay any company or person, other than a bona fide employee or contractor working for
Developer, any fee, commission, percentage, brokerage fee, gift, or other consideration
contingent upon the making of this Agreement. For breach of this warranty, City shall have the
right to rescind this Agreement without liability.
15.5 Notices. All notices, demands, invoices, and written communications
shall be in writing and delivered to the following addresses or such other addresses as the Parties
may designate by written notice:
To (City/County): City of Menifee
Attn: Jonathan Smith
29714 Hann Road
Menifee, CA 92586
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Phone: (951) 672-6777
Fax: (951) 679-3843
To Developer: Eldorado Riverside Venture LLLP
Attn: Marvin Shapiro
923 North Pennsylvania Avenue
Winter Park, Florida 32789
Phone: (407) 648-8488
Fax: (407) 644-3115
Depending upon the method of transmittal, notice shall be deemed received as follows: by
facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail
first class postage prepaid, as of 72 hours after deposit in the U.S. Mail.
15.6 Cooperation; Further Acts, The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate, or convenient to attain the purposes of this Agreement.
15.7 Construction: References; Cam. It being agreed the Parties or their
agents have participated in the preparation of this Agreement, the language of this Agreement
shall be construed simply, according to its fair meaning, and not strictly for or against any Party.
Any term referencing time, days, or period for performance shall be deemed calendar days and
not work days. All references to Developer include all personnel, employees, agents, and
contractors of Developer, except as otherwise specified in this Agreement. All references to City
include its elected officials, officers, employees, agents, and volunteers except as otherwise
specified in this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe the scope,
content, or intent of this Agreement.
15.9 Amendment: Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
15.9 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual right by custom, estoppel, or otherwise.
15.10 Binding Effect. Each and all of the covenants and conditions shall be
binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal
representatives, or assigns. This section shall not be construed as an authorization for any Party
to assign any right or obligation.
15.11 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
-13-
TUMF Agreement—El Dorado(Menifee Road)
U52008 4688640 5
15.12 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
15.13 Consent to Jurisdiction and Venue. This Agreement shall be construed in
accordance with and governed by the laws of the State of California. Any legal action or
proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the
Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the
appropriate California State Court in the County of Riverside, California. Each Party waives the
benefit of any provision of state or federal law providing for a change of venue to any other court
or jurisdiction including, without limitation, a change of venue based on the fact that a
governmental entity is a party to the action or proceeding, or that a federal right or question is
involved or alleged to be involved in the action or proceeding. Without limiting the generality of
the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to
California Code of Civil Procedure Section 394.
15.14 Time is of the Essence. Time is of the essence in this Agreement, and the
Parties agree to execute all documents and proceed with due diligence to complete all covenants
and conditions.
15.15 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original and which collectively shall constitute one instrument.
15.16 Entire Agreement. This Agreement contains the entire agreement between
City and Developer and supersedes any prior oral or written statements or agreements between
City and Developer. Without limiting the generality of the foregoing, the terms and provisions
of this Agreement as to the requirements for the construction of the TUMF Improvements
supersede the terms and provisions of any prior Agreement between City and Developer
pertaining thereto.
[SIGNATURES OF PARTIES ON NEXT PAGE]
-14-
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the day and year first above written.
DEVELOPER:
EL DORADO (RIVERSIDE) VENTURE, L.L.L.P
a Delaware limited liability limited partnership
By: Eldorado (Riverside)ASLI V, L.L.L.P., a
Delaware limited liability limited
partnership, its sole general partner
By: Eldorado (Riverside) GP, LLC,a Delaware
limited liability limited partnership, its sole
general partner
By: Avanti Properties Group II, L.L.L.P, a
Delaware limited liability limited
partnership, its sole manager and member
By: Avanti Management Corporation, a Florida
corporation, its sole general partner
By:
Marvin Shapiro, President
CITY OF MENIF
By:
Scott Mann, Mayor
ATTEST:
By: By:
Kathy Bennett, City Clerk Robert*ohn, anage
,W,, uer/ ao fo rm
R Oi1
f'04'!,
-15-
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
[ATTACHED BEHIND THIS PAGE]
EXHIBIT A-I
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
COUNTY OF' RIVERSIDF
IMPROVEWNT AREA
FACILITY //--- ELDORADO
-
LANE WIDENING LEGAL DESCRIPTION
TRACT NO, 31582--1
IN THE UNINcORPORATeD couNTY oi--R1vr-ns1Dc-,
SrA'FJ-= 01=CALIPOPINIA
BEING A SUBDIVISION OF A PORTION OF
LOT 211. OF OLIVELAND RANCHO COMPANY'S
SUBDI.W.qION, MA 2114, AND PORT16,N$ OF
PARCEL 0 OF' PARCEL MAP NO. 21838,
Pda. 14611-26, RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA, LOCATE0 IN I'HE
SOUTHWEST OUARFEJ? OF SECTION 25; 7-1 5
S., R. 3 w, .5 a,M.
FILED ON .--, 2007 IN BOOK OF
MAPS, Al F`ArEjv 17-IROUGH
INCLUSIVE,
gg
cmxmaFina
PROJECT DESIGN CONsuurANTS
Planning I Landsoape Arohftootoro I Enalneodnu I Survey
3
AMMO R[dja Park Drivo,,9ure 17(4Tenrocula,CAusso
:
m 96iaxne rot 051M ]:=
.5507 Fax T I f=-
I 01`= 1
EXHIBIT A-2
TUMF Agreement—El Dorado(Menifee Road)
COUNTY OF 'WFOASIDE
IMPROVEMENT AF�LA ELDORADO
FACILPY
LANE- WIDENING LEGAL DESCRIPTION
TRACT NO. 31582
IN 'rHr-- UNINCORPORATI-0 COUNTY OF, F7lVffnSfDF,
STATE OF CALIFORNIA.
rW7Nr A SURFWSION OF PORTIONS or
LOi`5 18 AND 23 OF OJIVrI.ANO RANCHO
GOMPANY'S 5U601VISION, M.13,211q, ANO
POR71ONS OF PARCEL JO OF PARCEL MAP
NO. 21838, RM. 14611-26, RECOR0.5 OF
RIVEM51Or COUNTY, CALIFORNIA, LOCATrO
IN THE SOUTHWEST QUAR[1-[? 017 SEWIQN
25, T. 5 S., R J W, S.0,0,
FILED ON -, 2007 IN ROOK OF
MAPS, AT PACES THROUGH
INCLUSIw"
a.
PnOJECT DESIGN CONSULTANTS
Nanning I Landampa Architecture I Eilghoorng I SMOY
4040 Ridge Pwk Qf1va,600 170,Tomnouln,CA MOO
Fox SHEET I 0F 1 ]]:-=260-07
EXHIBIT A-3
TUMF Agreement—El Dorado(Menifee Road)
COUNTY OF RIVERSIDE
IMPROVEMENT AREA NO.
SITE MAP
I �
pA
El
it
I
I
r k
PROJECT DESIGN CONSMANTS
Planning lLAtldsoupa Ncliiltaclura Cngliieariilo f MOY
43480IiId0a Park urN9,GWta 170 Tameriuln,CA a200a 9 496.6507 Fax s.d—e".�. ^IV�'7 !�("8A1.40k3.8fitlBTa(
u nwwe
a
'm
EXHIBIT A-4
TUMF Agreement—El Dorado (Menifee Road)
COUNTY OF RIVERSIDE
lMPROVFMr--NT Af3E A NO
VICINITY MAP
d
McCALL BLVD �a
PROECT
SITE
SIMPSON RO
0 0::
L
CH
-�L w
NEWPORT ROAD
a
F
3
i
SEC. 25 T5S. R,3W, St A
Vire 7Y MAP ,
NO SCALE
IHOMAS CUIDE — RIVERSIDES COUNTY (2065) �
PAGE — f & 7 �
PROJECT DESIGN[ COIvISULTAPIT$
P l aivaing I L.xndaoapo ArWtoaturo I Ngfneering l Survoy E
J
4WO Rldgo Pruk DrN9,aulc�ai%Tomonulc�CA 02MO n-23--07 —NCJ7" 7"'O SCALE—
EXHIBIT A-5
TUMF Agreement—El Dorado(Menifee Road)
EXHIBIT"B"
FORMS FOR SECURITY
[ATTACHED BEHIND THIS PAGE]
EXHIBIT B-1
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
FAITHFUL PERFORMANCE BOND
CITY OF MENIFEE, STATE OF CALIFORNIA
(Government Code Section 66499.1)
FOR: Streets and Drainage $ 610721400,00 Tract/Parcel Map Tract 31582-1
Water System $--MIPSO—M Bond No. 41209000
Sewer System $--A�75 700.00 Premium $106,442.00
Surety. Platte River Insurance Compares Principal
Address 115 Glastonbury Blvd., Ste, 6 Address 923 N. Pennsylvania Averrue�
City/State Glastonbury, CT City/Slate Winter Park Florida
Zip code--06-033 Zip 32789
Phone, -244-398�
-08�0 Phone 800-896-0554
"WHEREAS, the City of Mantles, State of California, and
li
(hereinafter designated as"principal") have entered Into,E
or are about to enter into, the
attached agreament(s)whereby principal agrees to install and complete the above designated
public Improvements relating to (TracVParcel)Tract 31682-1, which agreement(s) Ware
hereby referred to and made a part hereof; and,
WHEREAS, said principal is required under the terms of said agreement(s) to furnish bond($)
for the faithful performance of said agreement(s);
NOW, THEREFORE, we the principal and FJqtte River Insurance Company, as surety, are
held and firmly bound unto the City of Menifee in the penal sum of -Seven Million Ninety Six
Thousand One Hundred and QQ1100- Dollars ($ 7 096 100 lawful money of the United
States, for the payment of which sum will and truly be made, we bind ourselves, our heirs,
successors, executors and administrators,jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above bonded principal, his or its heirs,
executors, administrators, successors or assigns, shall in all things stand to and abide by, and
well and truly keep and perform the covenants, conditions and provisions In the said
agreement and any alteration thereof made as therein provided, on his or their part, to be kept
and performed at the time and in the manner therein specified, and in all respects according
to their true intent and meaning, and shall Indemnify and save harmless the City of Menifee,
Its officers, agents and employees, as therein stipulated, then this obligation shall become null
and void; otherwise, it shall remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified
therefore, there shall be included costs and reasonable expenses and fees, Including
reasonable attorneys fees, incurred by the City In successfully enforcing Such obligation,,all
to be taxed as costs and included in any judgment rendered.
TUMF Agreement—El Dorado(Menifee Road)
FAITHFUL, PERFORMANCE BOND
..��`
The surety hereby stipulates and agrees that no Mange, extension of time, alteration or
addition to the terms of this agreement orto the work to be performed them under or the
specifications accompanying the same shall in anywise affect its obligation on this bond, and
It does hereby waive notice of any such change, extension of time, alteration or addition.
Surety further stipulates and agrees that the provisions of Section 2845 of the Civil Code and
commencement of construction are not conditions precedent to surety's obligations hereunder
and are hereby waived by surety.
When the work covered by the agreement Is complete,the City ofMenifee will accept the
work and thereupon, the amount of the obligation of this bond is reduced by 90%with the
remaining 10%held as security forthe one-year maintenance period provided for in the
agreements(s).
IN WITNESS WHEREOF, this instrument has been duly executed by the principal and surety
above named, on_July 23, 2010
NAME OF PRINCIPAL: gidorado Riverside) catuce L.L.L:P
AUTHORIZED SIGNATURE(S):
Name: fL+7v'✓ice'
Title: V/e-C' pert s'1<) Ji
(IF CORPORATION,AFFIX SEAL)
NAME OF SURETY: Platte Rdwver Insu nce-E n
AUTHORIZED SIGNATURF
Laura D. Mos older' Its Nto hey-in-Fact Title
(IF CORPORATION,AFFIX SEAL)
ATTACH NOTARIAL ACKNOWLEDGMENT OF SIGNATURES OF PRINCIPAL AND
ATTORNEY-IN-FACT
TUMF Agreement—El Dorado (Menifee Road)
Bond No. 41209000
PR]NCPRAT N0 A Y
STATE OF F o ida
COUNTY OF Orage
On this 23rd day of Jules,2010 before me, 13ernadolto Vetosin.I*Iota v
blic personally appeared Em Slianiro personally known to me
to he the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, and that by hfs signature on
the instrument the persons,or the entity upon behalf of which the person acted,executed
tile instrument.
Witness ay hand mid official seal
2 BEJINAOETTE VOLQSIN
Bernadette tt Vo ,Notary Public "elm NWalie,state of MOM
my comm.exp.Oct. 25,2010
Comm.%a.OD 593030
STIREnNOTARY
STATE OF Florida
COUNTY OF Seminole
On this 2±day of dy-,2Q]0, before me; Tjatalie C Uemors„N-qAry Public,
personally appeared Laura D.Mosholder personally known to nie,
to be the person whose name is subscribed to the within instrument and acknowledged
to me that she executed tite mine as Attsirucy-In-Pact for Platte River Insurance Company and
that by her signature on the instrument the person orthe entity upon behalf of which the person
acted,executed the instrunnat ,
Witness my hand and official s6l
�,;'/Z-z
yNWin C Demers, No ry Public
TUMF Agreement—El Dorado (Menifee Road)
i
MATERIAL AND LABOR BOND
CITY OF MENIFEE, STATE OF CALIFORNIA
(Government Code Section 66499,1)
FOR: Streets and Drainage $4,022 800 00 Tract/Parcel Map I'tact 31582-1
Wafter System $,-274 000.00 Bond No, 41209000
Sewer System $ _237 850 00 Premium Included in Performance Bond
Surety Platte River Insurance Company Principal otadg_(Rivareide)yent<re I tLy
Address 115 Glastonbury Blvd., Ste 5 Address 923 N, Pennsylvania Avenue
City/State Glastonbury, CT Clty/State Winter Park Florida
Zip code 06038 Zip 32789
Phone 888-244-3980 Phone 800-896-0554
WHEREAS, the City of Menifee, State of California, and Eldqrado IZivexside Venture,L.L.L.P
(hereinafter designated as °principal") have entered into, or are about to enter into,the
attached agreement(s) whereby principal agrees to install and complete the above designated
public improvements relating to (Tract/Parcel)jLract 31682-1 , which agreement(s) is/are
hereby referred to and made a part hereof; and,
WHEREAS, under the terms of said agreement, principal is required, before entering upon
the performance of the work, to file a good and sufficient payment bond with the City of
Menifee to secure the claims to which reference is made in Title 15 (commencing with Section
3082) of Part 4 of Division 3 of the Civil Code of the State of California;
NOW, THEREFORE, said principal and the undersigned, as corporate surety, are held firmly
unto the City of Menifee and all contractors, subcontractors, laborers, material persons and
other persons employed in the performance of said Civil Code in the sum of -Four Million
Five Hundred Thirty Four Thousand Six Hundred Ffty.and 001100 Dollars ($4 534 650 00)
for materials furnished or labor thereon of any kind, or for amounts due under the
Unemployment Insurance Act with respect to such work or labor, that said surety will pay the
sarne in an amount not exceeding the amount hereinabove set forth, and also in case suit Is
brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable
expenses and fees, including reasonable attorney's fees, Incurred by the City in successfully
enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and
to be Included in the judgement therein rendered.
It is hereby expressly stipulated and agreed upon that this bond shall inure to the benefit of
any and all persons, companies and corporations entitles to full claims under Title 15
(commencing with Section 3082) of Part 4 of Division 3 of the Civil Code, so as to give a right
of action to them or their assigns in any suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation shall become null
and void, otherwise, it shall be and remain in full force and effect,
TUMF Agreement—El Dorado (Menifee Road)
MATERIAL AND LABOR BOND
The surety hereby stipulates and agrees that no change, extension of time, .alteration or
addition to the terms of this agreement or to the specifications accompanying the some shall
in anywise affect its obligation on this bond, and it does hereby waive notice of any such
change,extension of time, alteration or addition. Surety further stipulates and agrees that the
provisions of Seotion 2845 of the Civil Code are not a condition precedent to surety's
obligations hereunder and are hereby waived by surety,
IN WITNESS WHEREOF, this instrument has been duly executed by the principal and surety
above named, on July 23 2030
NAME OF PRINCIPAL.: Eldorado 'verside)venture,L. .L.P.
AUTHORIZED SIGNATURE(S):
By
Name: /�k,,V 757
(IF CORPORATION,AFFIX SEAL)
NAME OF SURETY: Platte River Insurance-Cninnoariv
AUTHORIZED SIGNATURE',
Laura D, Moshold r, s Att rneyan Fact Title
(IF CORPORATION,AFFIX SEAL)
ATTACH NOTARIAL ACKNOWLEDGMENT OF SIGNATURES OF PRINCIPAL AND
ATTORNEY-IN-FACT.
TUMF Agreement—El Dorado(Menifee Road)
Bond No.41209000
PRTNCIPAI NOTARY
STATE OF Plor as
COUNTY OF Orange
Onthis23rd dayof Ju1y-,2010, beforenie, BernadetteVolosiu N, otary
Publie,personally appealed ,1Harvhi Shapiro personally known to the
to be the pencil whose name is subscribed to She within instrument and oakriowledged
to me that lie executed the same in his authorized capaelty, and that by his signature on
the inshuraent the persons,or the entity upon behalfof which the person acted,executed
the instrument.
Witness my hand and official seal BERNADETTE NOLOSIN
Nam Public,State of Florida
y c gip•Oct. 25,2010
` Comm.No-00 593030
Bernadette Volosin ,Notary Public
SURSTYNQ"rAn
STAT1a+JP Florida.
COUNTYCIF Somin le
Oil this23`s day Of July,M before me, NatalipQDenigrs l`rotarvPublic
Personally appeared Laura D.Mosholder personally known to me,
to be the person whose name is subscribed to the wifiiin instrument and acknowledged
to ape drat she execxned the same as Aldorney-lit-Fact for Platte River Insurance Company and
that by her signature on Via instrument the person or the entity upon behalf of which the person
acted,execorted the instrument,
Witness my hand and officiat seal
atalie C Demsts,N� ary Public
TUMF Agreement—El Dorado(Menlfee Road)
♦l
11
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PLNfTE RIVER INSURANCE COMPANY 41209000
POWER OT.A I'TORNEY
IQNOYi'ALL MEN BY TIf SE IRIESENTS,Thal tiro VLXF'IT RIVER INSVI2AlS•E COMPANY, a 'ouN'dlc$ialu PflAuhtmkP,Ilaviugsy
taj Pwatipalafl`uum to the Car ofMtddtomn,Waseaasm does mnls sanntrhaP and appatal.
3t,i ........... .. . ....._........ ..__..... .... .. . ......._.._.. [4t4p:1 Dbi[T,I101,171'R'---. ...... .._,.................... �I w.,
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as htm and Iaold fluor 1 rd' to feu,IP Doke.Pxeuda $av]mot sdommuclu I'ae and an its ctfichillfof l as worry nod w ax its art -od dewf,mny and aIi bonds.
n= moodiathe m nd contmals of swxtyslnp.Irmvided that to hmai m'vadettni.rog or ranttxat of mttag�lup amxuted under thle auihanty sbaE,Seas,In
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'I P('' oafPLh R,CYER HVSURAItiCEC441.f 1Y1'al a meeting duly codull aanlhold on am SSh day oFhwmy,2002, ,
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EXHIBIT B-8
TUMF Agreement—El Dorado(Menifee Road)
AGREEMENT
FOR THE CONSTRUCTION OF ROAD/DRAINAGE IMPROVEMENTS
This agreement,made and entered into by and between the City of Menifee, State
of California,hereinafter called City,and Eldorado(Riverside)Venture,L.L.L,P,a
Delaware limited liability limited partnership,hereinafter called "Owner",
WITNE SSE TH:
FIRST: Owner,for and in consideration of the approval by City of the final map
of that certain land division known as Tenet/Parcel Mai)No,31582-1,hereby agrees,at
Owner's own cost and expense,to furnish all labor, equipment and materials necessary to
perform and complete,within 24 months from the date this agreement is executed,in a
good and workmanlike manner,all road and drainage improvements in accordance with
those Road.Plans for said land division which have been approved by the City Engineer,
and are on file in the office of the Menifee Engineering Department, and dealt work
incidental thereto in accordance with the standards set forth in Riverside County
Ordinance No. 460, as amended,or its successor,which are hereby expressly made a part
of this agreement.All the above required work shall be done under the inspection of and
to the satisfaction of the City Engineer, and shall not be deemed complete until approved
and accepted as complete by the City. Owner finther agrees to nnalma n the above
required improvements for a period of one year following acceptance by tine City,and
denting this one year period to repair or replace,to the satisfaction of the City Engineer,
any defective work or tabor done or defective materials furnished. Owner further agrees
that all underground improvements shall be completed prior to the paving of any
roadway, The estimated cost of said.work and improvements is the sum of Seven Million
Ninety Six Thousand One hundred Dollars (S9,096.100.00).
SECOND: Owner agrees to pay to City the actual cost of such inspections of the
work and improvements as may be required by the City Engineer. Owner further agrees
that,if suit is brought upon this agreement or any bond guaranteeing the completion of
the road and drainage improvements, all costs and reasonable expenses and fees incurred
by City in successfully enforcing such obligations shall be paid by Owner, including
reasonable attorney's fees,and that,upon entry of judgment, all such costs,expenses and
fees shall be taxed as costs and included in any judgment rendered. Venue for any such
litigation shall be Riverside Superior Court.
TI-IfRD: City shall not,nor shall any officer or employee ol'City,be liable or
responsible for any accident,loss or dana.ge happening or occurring to the works
specified in this Agreement prior to the completion and,acceptance thereof, nor shall City
or any officer or employee thereof,be liable for any persons or property injured by reason.
of the nature of the work, or by reason of the acts or omissions of Owner, its agents or
employees,in the performance of the work,and all or said liabilities are assumed by
Owner, Owner shall to protect, defend, and hold harmless City and the officers,agents
I
TUMF Agreement—El Dorado (Menifee Road)
and employees thereof from all less,damage,liability or claim because of, or arising out
of the acts or omissions of Owner,its officers, agents and employees, in the performance
of this Agreement or arising out of the use of any patent or patented article in the
performance of this Agreement,
FOURTH: The Owner hereby grants to City,or any agent or employee of City,
the'.irrevocable permission to enter upon the lands of the subject land division for the
purpose of completing the improvements. 'Phis permission shall terminate at such time as
Owner has completed work within the time specified or any extension thereof granted by
the City.
FIFTH: The Owner shall provide adequate notice and warning to the traveling
public of each mud every hazardous or dangerous condition caused or created by the
construction of the works of improvement at all times rip to the completion and formal
acceptance of the works of improvement. The Owner shall protect all persons from such
hazardous or dangerous conditions by use of traffic regulatory control methods,
including,but not limited to, stop signs,regulatory signs or signals,barriers,or detours.
SIXTIT: Owner,its agents and employees, shall give notice to the City Engineer
at least 48 hours before begimring any work and shall furnish said City of Menifee
Engineering all reasonable facilities for obtaining full information with respect to the
progress and.manner of work.
SEVENTH: If Owner,its agents or employees,neglects,refuses, or fails to
prosecute the work with such diligence as to insure its completion within the specified
time, or within.such extensions of Wnne which have been granted by City, or if Owner
violates,neglects,refuses, or fails to perform satisfactorily any of the,provisions of the
Plans and specifications, Ownershall be in default of this agreement and notice of such
default shall be served upon Owner, City shall have the power, on recommendation of the
City Engineer,to terminate all rights of Owner because of such default. The
determination by the City Engineer of the question as to whether any of the terms of the
agreement or specifications have been violated, or have not been performed satisfactorily,
shall be conchisive upon the Owner, and any and all parties who may have any interest in
the agreement or any portion thereof, The foregoing provisions of this section shall be in
addition to all other rights and remedies available to City under law.The failure of the
Owner to commence construction shall not relieve the Owner or surety from completion
of the improvements required by this agreement.
EIGHTH: Owner agrees to file with City,prior to the date this agreement is
executed, a good and sufficient improvement security in an amount not less Una n the
estimated cost of the work and improvements for the faithful perfornnance of the terms
and conditions of this agreement, and good and sufficient security for payment of labor
and materials in the amount prescribed by Article XVII of Riverside County Ordinance
460 as amended to secure the claims to which reference is made in Title 15 (commencing
with Section 3082)of Part 4 of Division 3 of the Civil Cade of the State of California.
Owner agrees to renew each and every said bond or bonds with good and sufficient
z
TUMP Agreement—El Dorado(Menifee Road)
sureties or increase the amount of said bonds, or both,within ten.(10) days after being
notified by the City Engineer that the,Sureties Or amounts are insufficient.
Notwithstanding any other provisions herein,if Owner fails to take such action as is
necessary to comply with said notice,Owner shall be in default of this agreement unless
all required improvements are completed within ninety(90)days of the date on which the
City Engineer notified Owner of the insufficiency of the security or the amount of the
bonds or both.
NINTH: It is farther agreed by and between the parties hereto,including the
surety or sureties on the bonds securing this agreement,that,in the event it is doomed
necessary to extend the time of completion of the work contemplated to be done lender
this agreement in accordance with the terms,requirements and provisions of the
conditions of approval for the project, extensions of time may be granted,from time to
time,by City, either at its own option,or upon request of Contractor, so long as the
requested extensions in no way alter the time frames for project improvements as set
forth in the conditions of approval, and such extensions shall in no way affect the validity
of this agreement or release the surety or sureties on such bonds. Contractor further
agrees to maintain the aforesaid bond or bonds in full force and effect during the torms of
this agreement,including any extensions of time as may be granted therein,
TENTH: It is understood and agreed by the parties hereto that if any part,term or
provision of this agreement is by the courts hold to be unlawful and void,the validity of
the remaining portions shall no(be affected and the rights and obligations of the patties
shall be construed and enforced as if the agreement did not contain that particular part,
term or provision hold to be invalid.
ELEVENTH; Any notice or notices required or permitted to be given pursuant to
this Agreement shall be deemed served on the other patty when deposited in the United
Slates Mail,first class,postage pre-paid, addressed as follows:
f Ifty Owner
City Engineer Eldorado(Riverside)Venture,LI.L.P.
City Or Menifee c/o Avanti Properties Group 11,1,11Y,
29714 Flaun,Road 923 N. Pennsylvania Avenue
Mcnifec, CA 92586 Winter Part,,FL 32789
Attention: Mr. Marvin Shapiro
TWELFTH; This Agreement contains the entire agreement of the parties as to the
matters set forth herein.No waiver of any tenn or condition of this Agreement shall be a
continuing waiver thereof.
[Signatures onfiollonWngpage]
TUMF Agreement—El Dorado(Menifee Road)
IN WIINL'SS WFIERBOF, Owner has affixed his name,address and seal.
OWNER
ELDORADO (ICIVERSIDE) VENTURE,L.'LLL.P., aDelnware limited liability
limited partnership
By: Eldorado (Riverside)ASIA V,L.L.L.P„ a Delaware lhnited liability limited
partnership, its sole general partner
By: Eldorado (Riverside) GP,LLC,a Delaware limited liability company,its sole
general partner
By: Avanti Properties Group II, 1,.I:.1R,a Delaware limited liability limited.
partnership,its sole manager and member
By: Avanti Development Co poration l:I, a Florida corporation,its sole general partner
I <.
Dated: _4 1�.._
By, M:uvin M. Shapiro,Vicc President
CITY OF MENIFEE
By
Wallace W. Edgerton, Mayor
ATTI,ST: APPROVED AS TO FORM
By
'AIW j _ Karen Feld, City Attorney
Kathy Bennett,City Ctcrk
SIGNATURFS OF OWNER MIDST BE ACKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
4
TUMF Agreement—El Dorado(Menifee Road)
STATE OF Fl,,OR I DA
COUNTY OF ORANGE
41 Notary Public,certify that Marvin M.Shapiro, Vice President of
AVANTI DEVFI,OPMENT CORPOPLACTION 11,a Florida corporation, being personally knobNn to me to be
Marvin M. Shapiro,came before ine this day and acknowledged that he is the Vice President of AVANT[
DEVELOPMENT CORPORATION ff,a Florida corporation,and that he its Vice President,being authorized to
do so,executed the foregoing on behalf of the Corporation.
Winness my hand/and official sea], this day of
y2010.
N -y ohu Public
SUSAN C WHITFIELD
NOTARY COMMISS1011#EE22232
nuax7 WIRES AUG30 2014
ATRR OF
F.l1FIIU DONDEDTHROUGH
RU INSUroela COMPANY
TUMF Agreement-El Dorado(Menifee Road)
AGREEMENT
FOR T11E CONSTRUCTION OF ROAD/DRAINAGE IMPROVEMENTS
This agreement,made and entered into by and between the City of Meri£ee, State
of California,hereinafter called City,and Eldorado(Riverside)Venture,L.L.L R, a
Delaware limited'liability limited partnership,hereinafter called"Owner".
WITNESSETII.
FIRST: Owner,for and in consideration of the approval by City of die final map
of that certain land division known as Tract/Parcel Map No.31582-1,.hereby agrees,at
Owner's own cost and expense„to furnish all,labor,equipment and materials necessary to
perform and complete,within 24 months from the date this agreement is executed,in a
good and workmanlike manner, all road and drainage improvements in accordance with
those Road Plans for said land division which have been approved by the City Engineer,
and are on file in the office of the Monifee Engineering Department,and do all work
incidental thereto in accordance with the standards set forth in Riverside County
Ordinance No. 460,as amended,or its successor,wbich are hereby expressly made a part
of this agreement. All the above required work shall be done under die inspection of and
to the satisfaction of the City Engineer,and shall not be deemed complete until approved
and accepted as complete by the City. owner further agrees to maintain the above
required improvements for aperiod of one yearfollowing acceptance by the City,and.
during this one year period to repair or replace,to the satisfaction of the City Engineer,
any defective work or labor done or defective materials furnished. Owner further agrees
that all underground improvements shall be completed prior to the paving of any
roadway, The estimated cost of said work and.improvements is the sum of four Million
Five hundred ThirtT Four Thousand Skxllundred and Fifty Dollars
($4,534,650.00).
SECOND: owner agrees to pay to City the actual cost of such inspections of the
worts and improvements as may be required by the City Engineer, Owner further agrees
that,if suit is brought upon this agreement or any bond guaranteeing the completion of
thc,road and drainage improvements,all costs and reasonable expenses and fees incurred
by City in successfully enforcing such obligations shall be paid by Owner, including
reasonable attorney's fcos,and that,upon entry of judgment, all such costs,expenses and
fees shall be taxed as costs and included in any judgment rendered. Verne for any such
litigation shall be Riverside Superior Court.
T13IRD: City shall not,nor shall any officer or employee of City,be liable or
responsible for any accident,loss or damage happening or occurring to the works
specified in this Agreement prior to the completion and acceptance thereof,nor shall City
or any officer or employee thereof,be liable for any persons or property injured by reason
of the nature of the work, or by reason of the acts or omissions of Owner,its agents or
employees,in the performance of the work,and all or said liabilities are assumed by
' I
TUMF Agreement—El Dorado(Menifee Road)
Owner. Owner shall to protect, defend, and hold harmless City and the officers, agents
and employees thereof from all loss, damage, liability or claim because of, or arising out
of the acts or emissions of Owner,its officers,agents and employees,in the performance
of this Agreement or arising out of the use of any patent or patented article in the
performance of this Agreement.
FOURTH: The Owner hereby grants to City,or any agent or employee of City,
the irrevocable permission to enter upon the lands of the subject land division for the
purpose of completing the improvements.This permission shall terminate at such time as
Owner has completed work within the time specified or any extension thereof granted by
the City.
FIFTH: The Owner shall provide adequate notice and warning to the traveling
public of each and every hazardous or dangerous condition caused or created by the
constntetion of the works of improvement at all times up to the completion and formal
acceptance of the works ofimprovement, The Owner shall protect all persons from such
hazardous or dangerous conditions by use of traffic regulatory control methods,
including,but not limited to,stop signs,regulatory signs or signals,barriers, or detours.
SIXTH:Owner,its agents and employees, shall give notice to the City Engineer
at least 48 hours before beginning any work and shall furnish said City of Menifea
Engineering all reasonable facilities for obtaining full information with respect to the
progress and manner of work.
SEVENTH: if Owner, its agents or employees,neglects, refuses,or falls to
prosecute the work with such diligence as to insure its completion with n the specified
time, or within such extensions of time which,have been granted by City,or if Owner
violates,neglects,refuses, or fails to perform satisfactorily any of the provisions of the
plans and specifications,Owner shall be in default of this agreement and notice of such
default shall be served upon Owner. City shall have the power, on recommendation of the
City Engineer,to terminate all rights of Owner because of such default. The
dotennivation by the City Engineer of the question as to whether any of the terms of the
,agreement or specifications have been violated,or have not been performed satisfactorily,
shall be conclusive upon the Owner, and any and all parties who may have any interest in
the agreement or any,portion thereof, The foregoing provisions of this section shall be in
addition to all other rights and remedies available to City under law. The failure of the
Owner to commence construction shall not relieve the Owner or surety from completion
of the improvements required by this agreement.
EIGHTH: Owner agrees to file with City,prior to the date this agreement is
executed., a good and sufficient improvement security in an amount not less than the
estimated cost of the work and improvements for the faithful performance of the terms
and conditions of this agreement, and good and suffxoiont security for payment of labor
and materials in the amount prescribed by Article XVII of Riverside County Ordinance
460 as amended,to secure the claims to which reference is made in Title 1.5 (commencing
with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California.
2
TUMF Agreement—El Dorado (Menifee Road)
Owner agrees to renew each and every said bond or bonds with good and sufficient
sureties or increase the amount of said bonds,or both,within ten(10)days after being
notified by the City Engineer that the sureties or amounts are iusufficient.
Notwithstanding any other provisions herein,if Owner fails to talce such action as is
necessary to comply with said notice,Owner shall be in default of this agreement unless
all required improvements are completed within ninety(90)days of the date on which the
City Engineer notified.Owner of the insufficiency of the seourity or the amount of the
bonds or both.
NINTH:It is further agreed by and between the parties hereto,including the
surety or sureties on the bonds securing this agreement,that,in the event it is deemed
necessary to extend the time of completion of the work contemplated to be done under
this agreement in acoordnance with the torms,requirements and provisions of the
conditions of approval for the project, extensions of time may be granted,from time to
time,by City,either at its own option,or upon request of Contractor,so long as the
requested extensions in no way alter the time frames for project improvements as sex
forth in the conditions of approval,and such extensions shall in no way affect the validity
of this agreement or release the surety or sureties on such bonds. Contractor further
agrees to maintain the aforesaid bond or bonds in full force and effect during the terms of
this agreement.,including any extensions of time as may be granted therein.
TENTH: It is understood and agreed by the patties hereto that if any part,tern or
provision of this agreement is by the courts held to be unlawful and void,the validity of
the remaining portions shall not be affected and the rights and obligations of the parties
shall be construed and enforced as if the agreement did not contain that particular part,
term or provision held to be invalid.
ELEVENTH:Any notice or notices required or permitted to be given pursuant to
this Agreement shall be deemed served on the other party when deposited in the United
States Mail,first class,postage prepaid, addressed as follows:
K& Owner
City Engineer Eldorado(Riverside)Venture,L.L,L.P.
City of Menifee c/o Avanti Properties Group II, L.L.L.P,
29714 Haun Road 923 N,Pennsylvania Avenue
Menifae, CA 92.586 Winter Park,EL 32789
Attention: Mr,Marvin Shapiro
TWELFTH: This Agreement contains the entire agreement of the parties as to the
matters set forth'herein,No waiver of any term or condition of this Agreement shall be a
continuing waiver thereof.
[Signatures on following paSel
3
TUMF Agreement—El Dorado(Menifee Road)
IN WITNESS WHEREOF, Owner has affixed his name,address and seal.
OWNER
ELDORADO (RIVERSIDE)VENTURE,L.L.L.P., a Delaware limited liability
limited partnership
By: Eldorado (Riverside)ASI.I V, f,11.P., a Delaware limited liability limited
partnership,its sole general partner
By: Eldorado (Riverside) GP,LLC, a Delaware limited liability company, its sole
general partner
By: Avanti Properties C3roup II,L.L.LT,, a Delaware limited liability limited
partnership, its sole manager and member
By: Avamd Development Corporation 11, a Florida corporation,its sole general partner
Dated: G�
By: MarvinM. Shapiro,Vice President
CITY�OFq ME(Nf FE.F,
By
Wallace W. Edgerton,Mayor
ATTEST: APPROVED AS TO DORM
By
-� Karen Feld, City Attorney
Kathy Bennett, City Cleric
SIGNATURES OF OWNER MUST BE ACKNOWLEDGED BY NOTARY
AND(EXECUTED IN TRIPLICATE
4
TUMF Agreement—El Dorado(Menifee Road)
STATE OF FLORIDA
CO UN'lYOF GRAN
/GE ++ d
%7C jt,Notary Public,certify that Marvin M.Shapiro,Vice President of
AV ANTI DEVELOPMENT CORPORATION'1I,a Florida corporation,being personally known to me to be
Marvin M.Sliapiro,came bofere me Otis day and acIcnowledged that he is the Vice President of AVANTI
DEVELOPMENT CORPORATION 11,a Florida corporation,and that he as Vice President,being authorized to
do so,executed the foregoing on behalf of the corporation.
W ituess Iny liandfand official seal,this PT-
Of
Notary Public
SUSAN C WHITFIELD
['O"tY
COMMIS$10N#EE22232
"aic EMPIRES 302014
IM 1A IRVS AUGUG302
aU INSURANCE COMPANY
EXHIBIT B-18
TUMF Agreement—El Dorado(Menifee Road)
Nt November 14,2012
Platto River ft"Urtnice Company
I 15 Glastonbury Blvd
John V,Denver Suite 5
Mayor Glastonbury, CT 00033
Thomas Fuhrman
Mvyorft Tern
Subject: Exttmider,of Thne
Wallace M Edgerton Tract/Paroal Map No, 31582 Fc 31582.1
CourxilmambgI
Dwq MQnzl In sue nxlat r with the Agi oomems signed by the City of Monifec aid Mr, Marvin
Coon Omamber M,Shapiro roproundal F.1 Dorado(Riverside) Venture, ULP the,City of
smaKristfansoon Menifee requests that the bonds listed in Attachment A be extended to May 17,
2013,
This request was formally approved by City Council at its regular mooting on
November 13,2012,
7110 19 bonds total$17,317,400,00,
$111cer Y,
to V, Denver
Mayor
lincicsurel;;
Atutehment A—Bond List
cc; Frank Igo,Director,The.Rancon Group
Jeff Comp K�jj�Fq,CEO&Prosi Atj,f7, q,'Rancon Group
El Dorado(Riverside)Venture, LLP
Bill Rawlitigs, City Manager,City of'Munifee
Joe Fletcher,City Attorocy,City of Mcmlfco
Kathy Bennett,City Clock,City of'Mvnifbo
Jeff Wyman, Economic Development Director, City of MarifW
Don Allison,Director of Publie Works,city of Menifee
29714110un Road
Merino,(A 92586
PI'M 95IX72,6777
Fax q5tb?9.3843
IA"WXltY0fMPnit4aU5
EXHIBITB-19
TUMF Agreement—El Dorado (Menifee Road)
EXHIBIT "C"
DOCUMENTATION TO BE PROVIDED TO CITY BY DEVELOPER FOR
DETERMINATION OF CONSTRUCTION COSTS
To assist City in determining the Construction Costs for a completed TUMF
Improvement, Developer shall provide the following documents to City:
1. Plans, specifications and Developer's civil engineer's cost estimate;
2. List of bidders from whom bids were requested;
3. Construction schedules and progress reports;
4. Contracts, insurance certificates and change orders with each contractor or
vendor;
5. Invoices received from all vendors;
6. Canceled checks for payments made to contractors and vendors (copy both
front and back of canceled checks);
7. Spreadsheet showing total costs incurred in and related to the construction
of each TUMF Improvement and the check number for each item of cost
and invoice;
8. Final lien releases from each contractor and vendor; and
9. Such further documentation as may be reasonably required by City to
evidence the completion of construction and the payment of each item of
cost and invoice.
EXHIBIT C-1
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
EXHIBIT "D"
REIMBURSEMENT AGREEMENT
TRANSPORTATION UNIFORM MITIGATION FEE PROGRAM
THIS REIMBURSEMENT AGREEMENT (this "Agreement") is entered into this 2nd
day of July, 2013, by and between the City of Menifee, a California Municipal Corporation
(City) and El Dorado Riverside Venture L.L.L.P., a Delaware limited liability limited
partnership, with its principal place of business at 923 North Pennsylvania Avenue, Winter Park,
Florida 32789 ("Developer"). City and Developer are sometimes hereinafter referred to
individually as "Party" and collectively as "Parties".
RECITALS
WHEREAS, City and Developer are parties to an agreement dated July 2, 2013, entitled
"Improvement and Credit Agreement - Transportation Uniform Mitigation Fee Program"
(hereinafter the "Credit Agreement");
WHEREAS, Sections 14.1 through 14.4 of the Credit Agreement provide that Developer
is obligated to pay City the TUMF Obligation, as defined therein, but shall receive credit to
offset the TUMF Obligation if Developer constructs and City accepts the TUMF Improvements
in accordance with the Credit Agreement;
WHEREAS, Section 14.5 of the Credit Agreement provides that if the dollar amount of
the credit to which Developer is entitled under the Credit Agreement exceeds the dollar amount
of the TUMF Obligation, Developer may apply to City and WRCOG for a reimbursement
agreement for the amount by which the credit exceeds the TUMF Obligation;
WHEREAS, Section 14.5 additionally provides that a reimbursement agreement executed
pursuant to the Credit Agreement (i) shall be executed on the form attached to the Credit
Agreement, (ii) shall contain the terms and conditions set forth therein, (iii) shall be subject to all
terms and conditions of the Credit Agreement, and (iv) shall be attached upon execution to the
Credit Agreement and incorporated therein as a material part of the Credit Agreement as though
fully set forth therein; and
WHEREAS, City and WRCOG have consented to execute a reimbursement agreement
with Developer pursuant to the Credit Agreement, City TUMF Resolution, , and the TUMF
Administrative Plan adopted by WRCOG.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable
consideration, the adequacy of which is hereby acknowledged, the Parties hereby agree as
follows:
EXHIBIT D-1
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
TERMS
L0 Incorporation of Recitals. The Parties hereby affirm the facts set forth in the
Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
2.0 Effectiveness. This Agreement shall not be effective unless and until the Credit
Agreement is effective and in frill force in accordance with its terms.
3.0 Definitions. Terms not otherwise expressly defined in this Agreement, shall have
the meaning and intent set forth in the Credit Agreement.
4.0 Amount of Reimbursement. Subject to the terms, conditions, and limitations set
forth in this Agreement, the Parties hereby agree that Developer is entitled to receive the dollar
amount by which the Actual Credit exceeds the dollar amount of the TUMF Obligation as
determined pursuant to the Credit Agreement, City TUMF Resolution, and the TUMF
Administrative Plan adopted by WRCOG (the "Reimbursement'). The Reimbursement shall be
subject to verification by City. Developer shall provide any and all documentation reasonably
necessary for City to verify the amount of the Reimbursement. The Reimbursement shall be in an
amount not in excess of $1,191,458 (the "Reimbursement Amount'). WRCOG shall pay the
Reimbursement Amount to City and the City shall be responsible for transmitting the
Reimbursement Agreement to the Developer. In no event shall the dollar amount of the
Reimbursement exceed the difference between the dollar amount of all credit applied to offset
the TUMF Obligation pursuant to Section 14.4, 14.5, and 14.6 of the Credit Agreement, and one
hundred (100%) of the approved unit awarded, as such assumptions are indentified and
determined in the Nexus Study and the TUMF Administrative Plan adopted by WRCOG.
5.0 Payment of Reimbursement; Fumding Contingency. The payment of the
Reimbursement Agreement shall be subject to the following conditions:
5.1 Developer shall have no right to receive payment of the Reimbursement
unless and until: (i) the TUMF Improvements are completed and accepted by City in accordance
with the Credit Agreement; (ii) the TUMF Improvements are scheduled for funding pursuant to
the five-year Transportation Improvement Program adopted annually by WRCOG; and (iii)
WRCOG has funds available and appropriated for payment of the Reimbursement amount.
5.2 Developer shall not be entitled to any interest or other cost adjustment for
any delay between the time when the dollar amount of the Reimbursement is determined and the
time when payment of the Reimbursement is made to Developer by WRCOG through City.
6.0 Affirmation of Credit Agreement. City and Developer represent and warrant to
each other that there have been no written or oral modifications or amendments of the Credit
Agreement, except by this Agreement. City and Developer ratify and reaffirm each and every
one of their respective rights and obligations arising under the Credit Agreement. City and
Developer represent and warrant that the Credit Agreement is currently an effective, valid, and
binding obligation.
EXHIBIT D-2
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
7.0 Incorporation Into Credit Agreement. Upon execution of this Agreement, an
executed original of this Agreement shall be attached as Exhibit "D" to the Credit Agreement
and shall be incorporated therein as a material part of the Credit Agreement as though fully set
forth therein.
8.0 Terms of Credit Agreement Controlling. Each Parry hereby affirms that all
provisions of the Credit Agreement are in full force and effect and shall govern the actions of the
Parties under this Agreement as though fully set forth herein and made specifically applicable
hereto, including without limitation, the following sections of the Credit Agreement: Sections
10.0 through 10.3, Section 12.0, Sections 13.0 through 13.7, Sections 14.0 through 14.7, and
Sections 15.0 through 15.17.
[SIGNATURES OF PARTIES ON NEXT PAGE]
EXHIBIT D-3
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
DEVELOPER:
EL DORADO (RIVERSIDE) VENTURE, L.L.L.P
a Delaware limited liability limited partnership
By: Eldorado(Riverside) ASLI V, L.L.L.P., a
Delaware limited liability limited
partnership, its sole general partner
By: Eldorado(Riverside) GP, LLC, a Delaware
limited liability limited partnership, its sole
general partner
By: Avanti Properties Group ❑, L.L.L.P., a
Delaware limited liability limited
partnership, its sole manager and member
By: Avanti Management Corporation, a Florida
corporation, its sole general partner
By:
Marvin Shapiro, President
CITY OF ME
By:
Scott Mann, Mayor
ATTEST: 'A 4 AM
By: By:
athy Bennett, City Clerk Robed Joh t on, ity anage
EXHIBIT D-4
TUMF Agreement—El Dorado(Menifee Road)
US2008 4688640 5
EXHIBIT "E"
TUMF CREDIT / REIMBURSEMENT ELIGIBILITY PROCESS
1. Prior to the construction of any TUMF Improvement, Developer shall follow the steps
listed below:
a. Prepare a separate bid package for the TUMF Improvements.
b. The plans, cost estimate, specifications and contract document shall require all
contractors to pay prevailing wages and to comply with applicable provisions of
the Labor Code, Government Code, and Public Contract Code relating to Public
Works Projects.
c. Bids shall be obtained and processed in accordance with the formal public works
bidding requirements of the City/County.
d. The contract(s) for the construction of TUMF Improvements shall be awarded to
the lowest responsible bidder(s) for the construction of such facilities in
accordance with the City's/County's requirements and guidelines.
e. Contractor(s) shall be required to provide proof of insurance coverage throughout
the duration of the construction.
2. Prior to the determination and application of any Credit pursuant to a TUMF
Improvement and Credit Agreement executed between City/County and Developer
("Agreement"), Developer shall provide the City/County and WRCOG with the following:
a. Copies of all information listed under Item 1 above.
b. Surety Bond, Letter of Credit, or other form of security permitted under the
Agreement and acceptable to the City/County and WRCOG, guaranteeing the
construction of all applicable TUMF Improvements.
3. Prior to the City's/County's acceptance of any completed TUMF Improvement, and in
order to initiate the construction cost verification process, the Developer shall comply
with the requirements as set forth in Sections 7, 14.3 and 14.4 of the Agreement, and
the following conditions shall also be satisfied:
a. Developer shall have completed the construction of all TUMF Improvements in
accordance with the approved Plans and Specifications.
b. Developer shall have satisfied the City's/County's inspection punch list.
c. After final inspection and approval of the completed TUMF Improvements, the
City/County shall have provided the Developer a final inspection release letter.
d. City/County shall have filed a Notice of Completion with respect to the TUMF
Improvements pursuant to Section 3093 of the Civil Code with the County
Recorder's Office, and provided a copy of filed Notice of Completion to WRCOG.
e. Developer shall have provided City/County a copy of the As-Built plans for the
TUMF Improvements.
f. Developer shall have provided City/County copies of all permits or agreements
that may have been required by various resource/regulatory agencies for
construction, operation and maintenance of any TUMF Improvements.
g. Developer shall have submitted a documentation package to the City/County to
determine the final cost of the TUMF Improvements, which shall include at a
minimum, the following documents related to the TUMF Improvements:
EXHIBIT E-I
TUMF Agreement—El Dorado(Menifee Road)
I. Plans, specifications, and Developer's Civil Engineer's cost estimates; or
Engineer's Report showing the cost estimates.
ii. Contracts/agreements, insurance certificates and change orders with
each vendor or contractor.
iii. Invoices from all vendors and service providers.
iv. Copies of cancelled checks, front and back, for payments made to
contractors, vendors and service providers.
v. Final lien releases from each contractor and vendor (unconditional waiver
and release).
vi. Certified contract workers payroll for City/County verification of
compliance with prevailing wages.
vii. A total cost summary, in spreadsheet format (MS Excel is preferred) and
on disk, showing a breakdown of the total costs incurred. The summary
should include for each item claimed the check number, cost, invoice
numbers, and name of payee. See attached sample for details.
EXHIBIT E-2
U F Agreement—El Dorado Menifee Road
T M ( )
9
EXHIBIT "F"
RECONCILIATION EXAMPLES
All examples are based on a single family residential development project of 200 dwelling units:
200 SF dwelling units @ $6,650 / dwelling unit = $1,330,000 in fees (TUMF Obligation)
Example A:"TUMF BALANCE"
CREDIT
TUMF Obligation: $1,330,000
Estimated Cost: Bid ($1,500,000)or unit Cost Assumption($1,600,000)whichever is less $1,500,000
Potential Reimbursement: ($170,000)
RECONCILIATION
TUMF Obligation: $1,330,000
Actual Credit: $1,200,000
TUMF Balance (Payment to TUMF): $130,000
Example B: "REIMBURSEMENT"
CREDIT
TUMF Obligation: $1,330,000
Estimated Cost: Bid ($1,500,000)or unit Cost Assumption ($1,600,000)whichever is less $1,500,000
Potential Reimbursement: ($170,000)
RECONCILIATION
TUMF Obligation: $1,330,000
Actual Credit: $1,500,000
Reimbursement Agreement with Developer(Based on Priority Ranking): ($170,000)
Example C: "TUMF OVERPAYMENT"
CREDIT
TUMF Obligation: $1,330,000
Estimated Cost: Bid ($1,200,000)or unit Cost Assumption($1,500,000)whichever is less $1,200,000
Remaining TUMF Obligation: $130,000
Prorated Fee: $130,000/200 du = $650/du
RECONCILIATION
Actual Credit: $1,300,000
TUMF payments from Developer($650 per unit x 200 units) $130,000
Actual Credit plus TUMF Payment $1,430,000
TUMF Obligation: $1,330,000
Actual Credit plus TUMF Payment $_1,430,000
TUMF Overpayment(Refund to Developer): ($500,000)
EXHIBIT F-1
TUMF Agreement—El Dorado(Menifee Road)
EXHIBIT "G"
INITIAL CREDIT SUMMARY
[ATTACHED BEHIND THIS PAGE]
EXHIBIT G-I
TUMF Agreement—El Dorado(Menifee Road)
EXHIBIT "G"
Estimated Amount of Credit/Reimbursement
BID VENDOR
CONSTRUCTION Street Improvements* $1,221 785.00
Grading $1,393,694.00
Storm Draln* $884 820 00
Bonds $42,132,11
Construction Sub Total $3,542,371.11
ENGINEERING-CIy,JJ,(,Snils PDC Engineerng $64,874.00
PDC Staking" $75,000.00
GeoCcn* $85,Qooxo
Pat Solis $17,530,00
Engineering Sub Total $242,424.00
Fees City of Menifee $55,000.00
Flood Control $92,000.00
EMWD
$10,000.00
Permits-Grading $10,000.00
Fees-Sub Total $167,000,00
Right—of—way alght-of-way Dedication of Right-of-Way for Menifee Rood $607,000,00
Right-Of-Way-Sub Total $607,000.00
2jHE,„$„C,Qf�S�ULTANTS Urban Cross Roads $34,510.00
Monte Group $35,000,00
Aeolian Advisors $10,000.00
Other Consultants Sub Total $79,510,00
ODNSTRU CFI0N I PROJECT MANAGEMENI Moote/DSCM $100,000,00
Contt,/Project Mgmt Sub Tota l $100,000,00
Contingency 15% $339,990.00
Note; Only on asteric Items '
Total Estimated Eligible Coats $5 p78,209.11
Notes
Estimated cost based upon low bid and actual expenditures where available
Actual Costs suject to validation
EXHIBIT G-2
TUMF Agreement—El Dorado(Menifee Road)
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