2013/12/26 Agreement Development Agreement - Zeiders Road Business Park - Commerce Pointe Project DOC # 2013-0594156
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Recorded in Official Records
Recording Requested By: J County of Riverside
AN
CITY OF MENIFEE 0 7 2014 Larry W. Ward
Assessor, County Clerk & Recorder
After Recording Mail To: ReceiV@d II II I II III III I IIII I III II I II III
CITY CLERK
CITY OF MENIFEE S R U PAGE SIZE DA MISC LONG RFD COPY
29714 HAUN ROAD
MENIFEE,CA 92586
M PCOR NCOR SMF CH exgM
Record without fee subject to Govt.Code 27383 A L 465 426 >
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DEVELOPMENT AGREEMENT 072
BY AND BETWEEN
THE CITY OF MENIFEE
AND
ZEIDERS ROAD BUSINESS PARK, INC.
AND
COMMERCE POINTE II MENIFEE INC.
REGARDING THE
COMMERCE POINTE PROJECT
Effective Date.
December 20, 2013
DEVELOPMENT
AGREEMENT
COMMERCE POINTE PROJECT
This Development Agreement ("Agreement') is entered into as of this 201h day of
November 2013, by and between the CITY OF MENIFEE, a municipal corporation (the
"City") and Zeiders Road Business Park, Inc., a California corporation, and Commerce
Pointe II Menifee, Inc., a California corporation (individually a "Landowner" and
collectively "Landowners"). The City and Landowners are sometimes hereinafter
collectively referred to as the "Parties" and singularly as "Party."
RECITALS
A. Authorization. To strengthen the public planning process, encourage
private participation in comprehensive planning, and reduce the economic risk of
development, the Legislature of the State of California adopted Government Code Section
65864 et seq. (the "De
velopment ment Agreement
t Statute"), authorizes
zes the City and any
person having a legal or equitable interest in real property to enter into a development
agreement and, among other things, establish certain development rights in the property
which is the subject of the development project application. On July 7, 2009, the City
Council adopted Ordinance No. 2009-49 which sets forth the procedures, requirements
and authorization to approve development agreements (the "Development Agreement
Ordinance").
B. Property. Zeiders Road Business Park, Inc. holds a legal interest in certain
real property comprised of Assessor Parcel #s 384-150-008, -009, and -010 (commonly
known as "Commerce Pointe F'), and Commerce Pointe II Menifee, Inc. holds a legal
interest in Assessor Parcel # 384-180-043 (commonly known as "Commerce Pointe IP').
Comrerce Pointe I and Commerce Pointe II are located in the City of Menifee, County of
Riverside, State of California, as more particularly described in Exhibit "A" attached
hereto (the "Property").
C. Proiect. Landowners have been authorized to develop on the Property two
light industrial parks consisting of (i) approximately 209,858 square feet of floor area
within 18 buildings, plus 327 parking spaces on Commerce Pointe II; and (ii)
approximately 617,919 square feet of floor area within 33 buildings, plus 1,035 parking
spaces on Commerce Pointe I.
D. Project Approvals. The land use approvals for the Project obtained prior
to the Approval Date of this Agreement (collectively, the "Project Approvals") include but
are not limited to the following:
(a) Environmental Impact Repo rt (State Clearinghouse # 2006121062), with
Mitigation Measures, certified by the City Council of the City of Menifee
on April 7, 2009.
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(b) Resolution No. 09-06 certifying the environmental impact report (State
Clearinghouse #2006121062) and adopting a statement of overriding
considerations of environmental impact for the Commerce Pointe I and II
Project, approved and adopted by the City Council of the City of Menifee
on April 7, 2009.
(c) Change of Zone #7476, which changed the zoning of parcels within
Commerce Pointe I from Light Agriculture to Light Industrial and from
Light Agriculture and Manufacturing-Service Commercial to Light
Industrial, approved and adopted by the City Council of the City of Menifee
on April 7, 2009.
(d) Plot Plan #21452 and Plot Plan #22280 for the siting and design of
Commerce Pointe I and Commerce Pointe II with a maximum building
height of 36 feet, approved and adopted by the City Council of the City of
Menifee on April 7, 2009.
(e) Tentative Parcel Map No. 2013-118 (PM36596) subdividing the Property
into eighteen (18) lots on Commerce Pointe I and Tentative Parcel Map No.
2013-119 (PM36597) subdividing the Property into six (6) lots on
Commerce Pointe II, approved by the City Planning Commission on
October 8, 2013.
(f) Administrative approvals in conjunction with the above mentioned Project
Approvals, including but not limited to grading plans, landscape plans, and
other detailed design and specification plans for Commerce Pointe I and
Commerce Pointe II.
E. Purpose of Development Agreement. The City has determined that the
Project is a development for which a development agreement is appropriate. A
development agreement will eliminate uncertainty in the City's land use planning process
and secure orderly development of the Project, assure progressive installation of necessary
improvements and mitigation appropriate to each stage of development of the Project, and
otherwise achieve the goals and purposes for which the Development Agreement Statute
was enacted. The Project will provide important employment opportunities and is highly
capital intensive, especially in its initial phases, which, in order to make the Project
economically and fiscally feasible, requires major commitment to and investment in public
facilities and on-site and off-site improvements prior to the construction and sale or
leasing of the light industrial units. Landowners desire certainty with respect to certain
entitlements before expending the necessary sums to prepare the plans, implement
mitigation, dedicate property and construct the public facilities referred to in this
Agreement and to pursue other various pre-development work associated with the
development of the Project. The City desires to provide certainty through this Agreement
with respect to infrastructure and specific development criteria to be applicable to the
Property in order to provide for appropriate utilization of the Property and general
circulation in accordance with sound planning principles.
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F. Public Benefits Provided Pursuant to the Development Agreement. The
City Council determined that the development of the Project will afford the City, its
citizens and the surrounding region with the following primary benefits:
(a) Contributing to an increased quality of life for local residents by providing
jobs in close proximity to the home, improving the jobs-to-housing balance
for citywide planning, and reducing commuter traffic to San Diego, Orange
and Los Angeles Counties.
(b) Providing fiscal benefits to the City's general fund in terms of increased
property tax revenues.
(c) Creating substantial employment opportunities including both short-term
construction employment and long-term permanent employment within the
city.
(d) Providing funding for transportation improvements at the following
intersections to help alleviate existing failing levels of service:
(1) Scott &Murrieta Road;
(2) Zeiders Road/Haun Road & Scott Road;
(3) I-215 nouhbound ramps & Scott Road;
(4) I-215 northbound ramps & Scott Road;
(5) Zeiders Road &Keller Road;
(6) Antelope Road & Scott Road; and,
(7) Haim Road &Holland Road.
(e) Constructing timely and needed backbone infrastructure to the surrounding
area, including the following public improvements:
(1) Zeiders Road between Scott Road and Keller Road;
(2) Ciccotti Street between Zeiders Road and Bailey Park Boulevard;
(3) Bailey Park Boulevard near Ciccotti Street;
(4) Undergrounding of utilities along Zeiders Road from the south
Commerce Pointe property line to the Scott Road intersection; and,
(5) Expanded storm drain and sewer facilities to meet projected regional
needs.
(f) Delivering a high quality industrial development that will enhance the
surrounding community and provide opportunities to meet the demands of
local and regional area businesses.
(g) Conserving and enhancing valuable biologically sensitive areas and open
space.
G. Public Hearings. On October 8, 2013, pursuant to the requirements of the
Development Agreement Ordinance, the City's Planning Commission conducted a public
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hearing on Landowners' application for this Development Agreement. On November 6,
2013, pursuant to the requirements of the Development Agreement Ordinance, the City
Council conducted a public hearing on Landowners' application for this Development
Agreement.
H. Findings. The City Council has found and determined that this
Development Agreement: (i) is consistent with the City's General Plan and the zoning for
the Property; (ii) is in the best interests of health, safety and general welfare of the City,
its residents and the public; (iii) is entered into pursuant to and constitutes a present
exercise of police power by the City; and, (iv) is entered into pursuant to and in
compliance with the requirements of Section 65867 of the Development Agreement
Statute.
I. City Council Action. In accordance with the Development Agreement
Ordinance, the City Council held a duly noticed public hearing on this Agreement and,
after independent review and consideration, adopted Ordinance No. 2013-133 finding this
Agreement consistent with the General Plan and authorizing the execution of this
Agreement, and such ordinance shall become effective on December 20, 2013.
J. Material Terms. Notwithstanding the fact that the provisions of this
Agreement are derived from and include the policy determinations of the parties as
outlined in Exhibit `B" entitled "Commerce Pointe Project— Material Terms for Pending
Development Agreement and Associated Tract Map,"in the event that there is any conflict
between the Agreement and Exhibit "B", the provisions of the Agreement shall control.
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants hereinafter set forth, the Parties agree as follows:
AGREEMENT
1. Incorporation of Recitals. The Preamble, the Recitals and all defined terms set
forth in both are hereby incorporated into this Agreement.
2. Definitions. Each reference in this Agreement to any of the following commonly
used terms shall have the meaning set forth below for each such tenu.
2.1 Adoption Date. November 20, 2013, the date the City Council adopted the
Enacting Ordinance.
2.2 CEOA. The California Environmental Quality Act(Public Resources Code
§§ 21000, et sea.) and the Guidelines there under (Title 14, Cal. Code Regs. §
15000, et seq.).
2.3 Default. Defined in Section 15.
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2.4 Effective Date. The later of: (i) the date the Ordinance approving this
Agreement takes effect pursuant to Government Code §36937; or (ii) if the
Ordinance approving this Agreement or any other contemporaneous Project
Approval is subject to a valid referendum proceeding pursuant to Elections Code
§3500, et sea., the date the Ordinance approving this Agreement or other Project
Approval(s) is (or are) upheld pursuant to such referendum proceeding.
2.5 EIR. The Environmental Impact Report defined in Recital D above.
2.6 Exactions. All exactions, costs, fees, in-lieu fees or payments, charges,
assessments, dedications or other monetary or non-monetary requirement charged
or imposed by the City, or by the City through an assessment district (or similar
entity), in connection with the development of, construction on, or use of real
property, including but not limited to transportation improvement fees, park fees,
art fees, affordable housing fees, infrastructure fees, dedication or reservation
requirements, facility fees, sewer fees, water connection fees, building permit fees,
obligations for on- or off-site improvements or construction requirements for
Public Improvements, or other conditions for approval called for in connection with
the development of or construction of the Project, whether such exactions
constitute Public Improvements, Mitigation Measures in connection with
environmental review of the Project Approvals or Subsequent Approvals, or
impositions made under applicable City laws and regulations or in order to make an
approval consistent with applicable City laws and regulations. Exactions shall not
include Processing Fees as defined in Section 7.2 below.
2.7 Existing Land Use Regulations. Collectively, the Existing Land Use
Regulations shall mean: (i) the City of Meni£ee General Plan; (ii) Planning and
Zoning Codes of the City's Municipal Code; and, (iii) all other ordinances,
resolutions, regulations, and official policies governing land use development and
building construction in effect in the City as of the Adoption Date of this
Agreement, including but not limited to the Project Approvals.
2.8 Minor Modification. As defined in Section 8.5.1
2.9 Mitigation Measures. The mitigation measures applicable to the Project
developed as part of the EIR process and required to be implemented by
Landowners, and adopted as part of the Project Approvals.
2.10 Mortgage. A mortgage or deed of trust, or other transaction, in which the
Property, or a portion thereof or an interest therein, or any improvements thereon,
is conveyed or pledged as security, contracted in good faith and for fair value, or a
sale and leaseback arrangement in which the Property, or a portion thereof or an
interest therein, or improvements thereon, is sold and leased back concurrently
therewith in good faith and for fair value.
2.11 Mortgagee. The holder of the beneficial interest under a Mortgage, or the
owner of the Property, or interest therein, under a Mortgage.
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2.12 Project. As defined in Recital C.
2.13 Project Approvals. As defined in Recital D.
2.14 Property. As defined in Recital B.
2.15 Public Improvements. The lands and facilities, both on- and off-site, to be
improved and constructed by Landowners, and publicly dedicated or made
available for public use, as provided by the Project Approvals and this Agreement.
Public Improvements consist of all right-of-way improvements, streets and roads
within the Property; all utilities (such as gas, electricity, cable television, water,
sewer and storm drainage); pedestrian and bicycle paths and trails; parks and open
space; the off-site public improvements; and all other improvements and facilities
required or called for by the Mitigation Measures, conditions of the Project
Approvals, and this Agreement to be implemented by Landowners.
2.16 Subsequent Approvals. Approvals and actions of any kind or character
issued by the City following the Adoption Date of this Agreement that implement
or change the Project Approvals, including, but not limited to, the Project
Approvals, subdivision maps, plot plans, minor administrative permits, sign
permits, lot mergers, building permits, use permits, variances, demolition permits,
site clearance, grading plans and permits, substantial conformance determinations,
certificates of occupancy, municipal financing, abandonment of streets or rights-of-
way, and right-of-way transfers.
2.17 Termination. The expiration of the Term of this Agreement without
extension, whether by the passage of time or by any earlier occurrence pursuant to
any provision, including an uncured Default, of this Agreement. For purposes
hereof, 'Termination" includes any grammatical variant thereof, including
"Terminate," 'Terminated," and "Terminating."
2.18 Vested Riehts. As defined in Section 7.
3. Provisions Required by Statute. California Government Code §§65865.1 and
65865.2 provide, among other things, that a development agreement shall specify
the following:
(a) Duration of the agreement. See Section 6.2 of this Agreement
(b) Permitted Uses of the Property. See Section 7.1 of this Agreement.
(c) Density or intensity of such use. See Project Approvals.
(d) Maximum height and size of proposed buildings. See Project
Approvals.
(e) Reservation or dedication of land for public purposes. See Project
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Approvals.
(f) Periodic Review at least annually to demonstrate good faith
compliance with the Development Agreement, See Section 12 of
this Agreement.
4. Landowner Representations and Warranties.
The Landowners represent and warrant to the City, as follows:
(a) Organization. Each Landowner is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California, with full right, power and authority to conduct its
business as presently conducted and to execute, deliver and perform
its obligations under this Agreement.
(b) Authorization. Each Landowner has taken all necessary action to
authorize its execution, delivery and, subject to any conditions set
forth in this Agreement, performance of the Agreement. Upon the
date of this Agreement, this Agreement shall constitute a legal, valid
and binding obligation of the Landowner, enforceable against it in
accordance with its terms.
(c) No Conflict. The execution, delivery and performance of this
Agreement by each Landowner does not and will not materially
conflict with, or constitute a material violation or material breach of,
or constitute a default under (i) the charter or incorporation
documents of the Landowner, (ii) any applicable law, rule or
regulation binding upon or applicable to the Landowner, or (iii) any
material agreements to which the Landowner is a party.
(d) No Litigation. Unless otherwise disclosed in writing to the City
prior to the date of this Agreement, there is no existing or, to the
Landowner's actual knowledge, pending or threatened litigation,
suit, action or proceeding before any court or administrative agency
affecting the Landowner or, to the best knowledge of the
Landowner, the Property that would, if adversely determined,
materially and adversely affect the Landowner or the Property or the
Landowner's ability to perfonn its obligations under this Agreement
or to develop and operate the Project.
(e) Licenses, Pennits, Consents and Approvals. Landowners and/or any
person or entity owning or operating the Property have duly
obtained and maintained, or will duly obtain and maintain, and will
continue to obtain and maintain, all licenses, permits, consents and
approvals required by all applicable governmental authorities to
develop, sell, lease, own and operate the Project on the Property.
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(f) Payment of Taxes. Landowners shall pay when due any and all real
estate taxes and assessments (including any possessory interest tax)
assessed and levied on the Property or any portion thereof.
5. Relationship of City and Landowners. The Parties specifically acknowledge that
the Project is a private development, that neither Party is acting as the agent of the
other in any respect hereunder, and that each Party is an independent contracting
entity with respect to the terms, covenants and conditions contained in this
Agreement. None of the terms or provisions of this Agreement shall be deemed to
create a partnership between or among the Parties in the businesses of Landowners,
the affairs of the City, or otherwise, nor shall it cause them to be considered joint
venturers or members of any joint enterprise. The City and Landowners hereby
renounce the existence of any form of joint venture or partnership between them,
and agree that nothing contained herein or in any document executed in connection
herewith shall be construed as making the City and Landowners joint venturers or
partners.
6. Effective Date and Term.
6.1 Effective Date. The effective date of this Agreement is December 20,
2013, which is the effective date of City Ordinance No. 2013-133 adopting this
Agreement, unless said Ordinance or any other contemporaneous Project Approval
is subject to a valid referendum. Not later than ten (10) days after the Adoption
Date, the City and Landowners shall execute and acknowledge this Agreement.
Not later than forty (40) days after the Adoption Date, the City Clerk shall cause
this Agreement to be recorded in the Official Records of the County of Riverside,
State of California, provided that a referendum applicable to the Development
Agreement has not been timely submitted to the City.
6.2 Term. The term of this Agreement shall commence on the Effective Date
and continue thereafter for ten (10) years unless said Initial Term is terminated,
modified or extended by the terms of this Agreement.
6.3 Extension of Term Due to Litigation. In the event that litigation is filed
by a third party which seeks to invalidate this Agreement or any of the Project
Approvals, the term of this Agreement shall be extended for a period equal to the
length of time from the time a sununons and complaint and/or petition are served
on the defendant(s)/respondent(s) until the resolution of the matter is final and not
subject to appeal; provided, however, that the total amount of time for which the
term shall be extended as a result of any and all litigation shall not exceed two (2)
years.
6.4 Term of Project Approvals. The teen of any and all Project Approvals,
including but not limited to those Project Approvals already granted as Existing
Land Use Regulations as well as Subsequent Approvals, if any, for the Project,
shall be extended automatically through the teen of this Agreement,
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notwithstanding any other City law.
6.5 Automatic Termination Upon Completion and Sale of Units.
(a) This Agreement shall automatically be terminated, without any
further action by either party or need to record any additional
document, with respect to any single industrial building or industrial
condominium comprising a portion of the Property, upon
completion of construction and issuance by the City of a final
certificate of occupancy permit for the industrial unit, and
conveyance of such industrial unit to a bona-fide good-faith
purchaser (e.g., individual building owner or end-user). In
connection with its issuance of a final inspection for such industrial
unit, the City shall confirm that all improvements, which are
required to serve the unit, as determined by the City, have been
accepted by the City.
(b) Upon the conveyance of any lot, parcel, or other property to a
property owners' association, or public or quasi-public entity, that
lot and its owner shall have no further obligations under and shall be
released from this Agreement.
6.6 Rights and Obligations Upon Expiration or Termination. Following
Termination of this Agreement all of the rights, duties and obligations of the Parties
hereunder shall terminate and be of no further force and effect. Upon Termination
of this Agreement, Landowners shall thereafter comply with the provisions of all
City laws and regulations then in effect or subsequently adopted with respect to the
Property and/or the Project, except that any Termination shall not affect any right
vested (absent this Agreement), or other rights arising from approvals granted by
the City for development of all or any portion of the Project.
7. Vested Rights.
7.1. Development Rights. Except as set forth in Sections 7.2, 7.3, 7.4 and 8.5
below, during the teen of this Agreement the Landowners are provided and assured
the right to develop and use the Property in accordance with this Agreement, the
Project Approvals, and the Existing Land Use Regulations in force and effect on
the Adoption Date of this Agreement to the maximum extent allowed under this
Agreement (the "Vested Rights"). The permitted uses of the Property, the density
and intensity of use, the rate, timing and sequencing of development, the maximum
height and design and size of proposed buildings, the parking standards, and
provisions for reservation and dedication of land, shall be those set forth in the
Vested Rights.
7.2 Fees, Taxes and Exactions. The Landowners shall pay when due all
Exactions duly imposed by the City on the Project and/or the Property as part of the
Project Approvals and Existing Land Use Regulations. Notwithstanding the
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foregoing, the Development Impact Fees applicable to the Project, as set forth in
the attached Exhibit "C", shall be subject to moratorium during the Term of this
Agreement. The Development Impact Fees shall not be modified or renegotiated
by the City during the moratorium in connection with granting of any modification
or amendment of the Project Approvals, or the granting of any approval which does
not materially alter the maximum density or intensity of the Project. Landowners
shall pay those citywide application, processing, inspection, permit and plan check
fees and charges (the "Processing Fees") required by the City and in effect at the
time of the application for that permit or approval. Landowners agree that
Landowners shall pay the City the full costs of a contract planner or contract
building plan check person if such services are determined to be necessary by the
City Manager; provided, however, that the Processing Fees paid by Landowner to
the City shall apply as a credit against costs of contract planner or contract building
plan check person. This Agreement shall not limit the City's right and power to
impose taxes on the Property or Project provided that any taxes imposed are
adopted pursuant to all applicable laws and that said tax is a general tax that applies
throughout the boundaries of the City.
7.3 Rules Regarding Design, En2ineerin2 and Construction for Public
Improvements. Except as provided in Section 8.3 and 8.4 below, all ordinances,
resolutions, rules, regulations and official policies governing engineering and
construction standards and specifications applicable to the Public Improvements
shall be those in force and effect at the time the tentative subdivision map for the
property that includes the specific improvement is approved.
7.4 Uniform Codes Applicable. The Project shall be constructed in
accordance with the provisions of the International Building, Mechanical,
Plumbing, Electrical and Fire Codes, City standard construction specifications, and
Title 24 of the California Code of Regulations, relating to Building Standards, in
effect at the time of approval of the appropriate building, grading, encroachment or
other construction permits for the Project.
7.5 Subsequent Rules. Except as set forth in Sections 7.2, 7.3, 7.4 and 7.6,
during the Term of this Agreement, the City shall not apply any City ordinances,
resolutions, rules, regulations, official policies, or Exactions enacted after the
Adoption Date ("Subsequent Rule") that would conflict with or impede the Vested
Rights of Landowners set forth in Section 7.1 above or otherwise conflict with this
Agreement or the Existing Land Use Regulations, without Landowners' written
consent.
7.6 Changes in State or Federal Law. This Agreement shall not preclude the
application to development of the Property of Subsequent Rules mandated and
required by preemptive changes in State or federal laws or regulations.
8. Development of the Project and Public Improvements
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8.1 Construction and Operation of the Project. Landowners shall have the
right to construct and operate the Project in accordance with the Vested Rights
described in Section 7 above.
8.2. Phasing, The Parties acknowledge that presently Landowners cannot
predict the exact timing or sequence of the phasing of the Project. Landowners
therefore shall have the right to develop the Project in phases in such order and at
such times, if at all, as Landowners deem appropriate within the exercise of their
sole subjective business judgment and the provisions of this Agreement. Moreover,
subject to the conditions of the Project Approvals, Landowners may determine in
their sole discretion which part of the Project to develop first and thereafter, and
Landowners may determine in their sole discretion when to record the first final
map for any portion of the Property. Because the California Supreme Court held in
Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the
failure of the parties in that case to provide for the timing of development resulted
in a later-adopted initiative restricting the timing of development to prevail over the
parties' agreement, it is the specific intent of the Parties to provide for the timing of
development of the Project in this Agreement. To do so, the Parties acknowledge
and provide that Landowners shall have the right, but not the obligation, to
complete the Project or any portion thereof in such order, at such rate, at such
times, and in as many development phases and sub-phases as the Landowners deem
appropriate in their sole subjective business judgment, provided such completed
portion conforms to applicable Existing Land Use Regulations.
8.3 Design and Construction of Zeiders Road.
8.3.1 Prior to issuance of the first occupancy permit for the Project,
Landowners shall complete construction of Zeiders Road in accordance
with the street improvement plans approved on April 26, 2011, sewer plans
approved on November 9, 2010, and water plans submitted February 2011.
8.3.2 Landowners agree to construct Phase 1 of the Zeiders Road
improvements to commence upon the earlier of(i) 180 days after the first
permit is issued for mass grading of the Project, or (ii) July 1, 2015. Phase
1 of Zeiders Road will include minimum standards for a 2-lane paved
roadway from approximately 200 feet south of Ciccotti Street northward to
the improved section south of Scott Road, with one level of asphalt paving
and curb and gutter on the east side of Zeiders Road, but no sidewalks or
landscaping incorporated in Phase 1. The Phase I Zeiders Road
improvement plans are attached hereto as Exhibit "D".
8.4 Design and Construction of Ciccotti Street.
8.4.1 Prior to issuance of the first occupancy permit for the Project,
Landowners shall complete construction of Ciccotti Street from Zeiders
Road to Bailey Park Boulevard.
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8.4.2 Landowners agree to construct Phase 1 of the Ciccotti Street
improvements from Zeiders Road to Bailey Park Boulevard to minimum
all-weather standards for a 2-lane road (without curb, gutter, sidewalk or
landscaping) to commence upon the earlier of: (i) 180 days after the first
permit is issued for mass grading of the Project; or (ii) July 1, 2015. The
Phase 1 Ciccotti Street improvement plans are attached hereto as Exhibit
«E„
8.5 Subsequent Project Approvals. The development of the Project is subject
to future approvals and actions by the City that have not been reviewed or approved
by the City prior to the Adoption Date of this Agreement (i.e., Subsequent
Approvals). Subsequent Approvals may include discretionary and ministerial
actions by the City including, but are not limited to, review and approval of site
plans, landscape and irrigation plans, architectural plans, tentative and/or final
parcel and subdivision maps, additional tentative subdivision maps, condominium
plans, special permits, variances, demolition permits, plan review, design review,
grading permits and building permits. In reviewing and acting on applications for
Subsequent Approvals, the City shall cooperate with Landowners to expedite
review and final action on such requests. Once approved by the City, any
Subsequent Approval shall become part of the Project Approvals and Vested
Rights.
8.5.1 Minor Modifications. The Parties acknowledge that refinements or
modifications of the Project may be required during the Term. The Parties
agree that the following refinements and modifications to the Project or
Project Approvals constitute Minor Modifications: (i) changes in
landscaping; (ii) variations in the location or size of structures that do not
increase the maximum aggregate floor area of the Project, including but not
limited to the consolidation or aggregation of building footprints as long as
no single building exceeds 250,000 square feet; (iii) variations in the
location of utilities or other infrastructure connections or facilities not
materially affecting design concepts; (iv) variations in the open space or
conservation area configurations that do not reduce the aggregate size of
open space or conservation area, (v) minor adjustments to the tentative or
final map or to the legal descriptions to accommodate approved
modifications to other Project Approvals; (vi) map phasing and
condominium plans; and (vii) similar modifications or other changes that
are ministerial in nature and are not subject to further review under CEQA.
Notwithstanding any other provision of the Existing Land Use Regulations,
a request for a Minor Modification shall be approved administratively
unless appealed to the Planning Commission in accordance with Section
2.20.150 of the Menifee Municipal Code in existence as of the Adoption
Date of this Agreement. Minor Modifications shall be deemed to be
ministerial in nature and shall not require an amendment to this Agreement
or public hearing. The City shall not unreasonably withhold or delay the
approval of a requested Minor Modification nor shall the City impose as a
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condition to approval any Exaction except as authorized in this Agreement.
8.5.2 Subdivision of Property - Future Tentative Maps In accordance
with the provisions of this Section, Landowners shall have the right, from
time to time or at any time, to apply for one or more parcel or tract maps or
condominium plans, subdividing the Property into smaller developable
parcels, as may be necessary in order to develop, lease, finance or sell any
portion of the Property in connection with development of the Project as
provided in this Agreement and consistent with the density and intensity set
forth in the Existing Land Use Regulations. Final maps may be approved
on a phased basis.
8.5.3 Other Subsequent Project Approvals. Any change in the Project
which is not a Minor Modification as defined herein shall require a
subsequent discretionary action by the City as required by Existing Land
Use Regulations, which shall be applicable to such project changes. A
subsequent discretionary action shall not prevent development of the land
for the uses and to the maximum density or intensity of development
established in the Project Approvals for the Tenn of this Agreement
pursuant to Government Code Section 65865.2.
8.5.4 Subsequent Environmental Review. The Parties acknowledge that
the EIR for the Project contains a thorough analysis of the Project and
Project alternatives and specifies the feasible Mitigation Measures
necessary to eliminate or reduce to an acceptable level adverse
environmental impacts of the Project, and acknowledge that the City
Council issued a statement of overriding considerations in connection with
the Project Approvals, pursuant to 14 California Code of Regulations
(CEQA Guidelines) Section 15093 for those significant impacts which
could not be mitigated. For these reasons, no further review or mitigation
under CEQA shall be required by the City for any Subsequent Approvals
unless the criteria for further environmental review under CEQA are met as
specified in California Public Resources Code Section 21166.
8.6 Other Governmental Permits. Landowners shall apply for such other
pen-nits and approvals as may be required from other governmental or quasi-
governmental agencies having jurisdiction over the Project as may be required for
the development of, or provision of services to, the Project. The City shall
reasonably cooperate with Landowners in their endeavors to obtain such permits
and approvals and, from time to time at the request of Landowners, shall attempt
with reasonable efforts and in good faith to enter into binding agreements with any
such entity in order to asstue the availability of such permits and approvals or
services.
8.7 Easements; Improvements; Abandonments. The City shall reasonably
cooperate with Landowners in connection with any arrangements for abandoning
14
existing utility or other easements and facilities and the relocation thereof or
creation of any new easements within the Property necessary or appropriate in
connection with the development of the Project; and if any such easement is owned
by the City or an agency of the City, the City or such agency shall, at the request of
Landowners, take such action and execute such documents as may be reasonably
necessary to abandon existing easements and relocate them, as necessary or
appropriate in connection with the approved development of the Project.
8.8 Conservation Easement. The City agrees to accept the dedication of a
conservation easement in accordance with California Civil Code Section 815-816
for the portion of the Property identified on Exhibit "F" to protect and maintain
habitat mitigation areas in perpetuity (the "Conservation Easement"), provided that
Landowners have established a secured method for funding the anticipated long-
term maintenance costs of the easement area, including but not limited to the
posting of a bond, endowment, or certificate of deposit, or by including the
maintenance costs of the Conservation Easement in an appropriate financing
district. The Conservation Easement shall be conveyed substantially in the form
attached as Exhibit"G".
8.9 TUMF Credits for Phase 1 Improvements. The City will use its best
efforts to obtain approval to permit the use of Western Riverside Council of
Governments ("WRCOG") Transportation Uniform Mitigation Fees ("TUMF") for
the improvements to Zeiders Road and Ciccotti Street, such that the Landowners'
costs for delivery of the improvements is credited against the Landowners'
obligation to pay the applicable TUMF for the Project. If the cost of the
improvements to Zeiders Road and Ciccotti Street exceeds the Landowners' TUMF
obligation, the Landowners may request, to WRCOG, a reimbursement for such
costs through the TUMF program. To the extent permissible, the City will provide
construction in lieu Road & Bridge Benefit District ("RBBD") fee credits for these
improvements. In no case shall duplicate fee credits be issued for the same costs
related to eligible improvements.
9. Transfers and Assignments. Subject to the terms of this Section 9, any
Landowner shall have the right to assign or transfer (collectively "Transfer") all or
any portion of its interest, rights or obligations under this Agreement to third
parties or entities (the "Transferee") acquiring an interest or estate in all or a
portion of the Property (the "Transferred Property"), including, but not limited to,
purchasers or long teen ground lessees of individual lots, parcels, industrial
condominiums or of any of the buildings located upon the Property. Landowner
shall remain jointly liable for all obligations and requirements under this
Agreement after the effective date of the Transfer unless Landowner satisfies the
following conditions: (i) Transferee executes and delivers to the City an
Assignment and Assumption Agreement in the form set forth in Exhibit "H" to this
Agreement specifying the obligations and requirements to be assumed by the
Transferee; and (ii) Landowner has not received a notice of a Default under this
Agreement that remains uncured as of the effective date of the Transfer. If
15
conditions (i) and (ii) are satisfied, Landowner shall be released from any further
liability or obligation under this Agreement related to the Transferred Property as
specified in the Assignment and Assumption Agreement, and the Transferee shall
become the "Landowner" under this Agreement with all rights and obligations
related thereto, with respect to such Transferred Property. Notwithstanding
anything to the contrary contained in this Agreement, if a Transferee Defaults
under this Agreement, such Default shall not constitute a Default by Landowner
with respect to any other portion of the Property hereunder and shall not entitle the
City to Terminate or modify this Agreement with respect to such other portion of
the Property.
10. Lender Obligations and Protections.
10.1 Encumbrances on the Property. The Parties hereto agree that this
Agreement shall not prevent or limit Landowners, in any manner, from
encumbering the Property or any portion thereof or any improvements thereon with
any Mortgage securing financing with respect to the construction, development,
use, or operation of the Property.
10.2 Mortgagee Obligations. A Mortgagee not in legal possession of the
Property or any portion thereof shall not be subject to the obligations or liabilities
of the Landowners under this Agreement, including the obligation to construct or
complete construction of improvements or pay fees. A Mortgagee in legal
possession shall not have any obligation or duty under this Agreement to construct
or complete the construction of improvements, or to pay, perform or provide any
fee, dedication, improvements or other exaction or imposition. A Mortgagee in
legal possession of the Property or portion thereof shall only be entitled to use of
Property or to construct any improvements on the Property in accordance with the
Project Approvals and this Agreement if Mortgagee fully complies with the terms
of this Agreement.
10.3 Mortgagee Protection. This Agreement shall be superior and senior to any
lien placed upon the Property, or any portion thereof, after the date of recording
this Agreement, including the lien for any deed of trust or Mortgage.
Notwithstanding the foregoing, no breach of this Agreement shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for
value, but all the terms and conditions contained in this Agreement shall be binding
upon and effective against any person or entity, including any deed of trust
beneficiary or Mortgagee that acquires title to the Property, or any portion thereof,
by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise, and any such
Mortgagee or successor to a Lender that takes title to the Property or any portion
thereof shall be entitled to the benefits arising under this Agreement.
10.4 Notice of Default to Mortgagee; Right of Lender to Cure. If the City
receives notice from a Mortgagee requesting a copy of any notice of Default given
Landowners under this Agreement and specifying the address for service thereof,
16
then the City shall deliver to such Mortgagee, concurrently with service thereon to
Landowners, any notice given to Landowners with respect to any claim by the City
that Landowner(s) is/are in Default and/or Certificate of Non-Compliance. Each
Mortgagee shall have the right during the same period available to Landowners to
cure or remedy, or to commence to cure or remedy, the Default or non-compliance
as provided in this Agreement; provided, however, that if the Default,
noncompliance or Certificate of Non-Compliance is of a nature which can only be
remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee
may seek to obtain possession with diligence and continuity through a receiver or
otherwise, and shall thereafter remedy or cure the Default, noncompliance or
Certificate of Non-Compliance within ninety (90) days after obtaining possession.
If any such Default, noncompliance or Certificate of Non-Compliance cannot, with
diligence, be remedied or cured within such ninety (90) day period, then such
Mortgagee shall have such additional time as may be reasonably necessary to
remedy or cure such Default, noncompliance or Certificate of Non-Compliance
(including but not limited to proceeding to gain possession of the Property) if such
Mortgagee commences cure during such ninety (90) day period, and thereafter
diligently pursues completion of such cure to the extent possible.
11. Estoppel Certificate. Either Party may, at any time, and from time to time, deliver
written notice to the other Party requesting such Party to certify in writing that, to
the Imowledge of the certifying Party: (i) this Agreement is in full force and effect
and a binding obligation of the Parties; (ii) this Agreement has not been amended
or modified either orally or in writing, and if so amended, identifying the
amendments; (iii) the requesting Party is not in Default in the performance of its
obligations under this Agreement, or if in Default, to describe therein the nature
and amount of any such Defaults; and, (iv) such other information as may
reasonably be requested. A Party receiving a request hereunder shall execute and
return such certificate within thirty (30) days following the receipt thereof. The
City Manager shall have the right to execute any certificate requested by
Landowners hereunder. The City acknowledges that a certificate hereunder may be
relied upon by Transferees, Lenders and Mortgagees.
12. Annual Review.
12.1 Review Date. The annual review date for this Agreement shall occur each
year on the anniversary date of the Effective Date of this Agreement ("Annual
Review Date").
12.2 Required Information from Landowners. Not more than sixty (60) days
and not less than forty-five (45) days prior to the Annual Review Date, the
Landowners shall provide a letter to the City Manager or his/her designee
containing evidence to show compliance with this Agreement. The burden of
proof,by substantial evidence, of compliance is upon the Landowners.
12.3 City Report. Within forty (40) days after Landowners submit their
17
letter(s), the City Manager or his/her designee shall review the information
submitted by Landowner(s) and all other available evidence on Landowners'
compliance with this Agreement. All such available evidence including public
comments and final staff reports shall, upon receipt of the City, be made available
as soon as possible to Landowners. The City Manager or his/her designee shall
notify the Landowners in writing whether the Landowners have complied with the
terms of this Agreement. If the City Manager or his/her designee finds one or more
of the Landowners in compliance, the City Manager or his/her designee shall issue
a Certificate of Compliance with respect to those Properties in compliance. If the
City Manager or his/her designee finds one or more of the Landowners not in
compliance, the City Manager or his/her designee shall issue a Certificate of Non-
Compliance with respect to those properties not in compliance after following the
procedures set forth in Section 12.4.
12.4 Non-compliance with Agreement; Hearin1j. Prior to issuing a Certificate
of Non-Compliance, if the City Manager or his/her designee, on the basis of
substantial evidence, finds that a Landowner has not complied with the tern-is of
this Agreement, he/she shall specify in writing to Landowner, with reasonable
specificity, the respects in which Landowner has failed to comply. The City
Manager or his/her designee shall also specify a reasonable time for Landowner to
meet the terms of compliance, which time shall be not less than thirty (30) days,
and shall be reasonably related to the time necessary for Landowner to adequately
bring its performance into compliance with the terms of this Agreement, subject to
any permitted delay. If after the reasonable time for Landowner to meet the terms
of compliance has passed and the City Manager or his/her designee, on the basis of
substantial evidence, continues to find that the Landowner has not complied, then
the City Manager or his/her designee shall issue a Certificate of Non-Compliance.
Any Certificate of Non-Compliance shall be made in writing with reasonable
specificity as to the reasons for the determination, and a copy shall be provided to
Landowner. If the City Manager or his/her designee issues a Certificate of Non-
Compliance, then the Landowner that is not in compliance shall be entitled to
appeal such determination to the City Council with an opportunity to present
evidence at a hearing. If the non-compliance involves a material obligation of this
Agreement, the City may proceed with the procedure regarding Default in Section
15 below.
12.5 Costs. Costs reasonably incurred by the City in connection with the annual
review and related hearings shall be paid by Landowners in accordance with the
City's schedule of fees and billing rates for staff time in effect at the time of review.
12.6 Effect on Transferees. If a Landowner has effected a transfer so that its
interest in the Property has been divided between Transferees, then the annual
review hereunder shall be conducted separately with respect to each Party.
13. Indemnification. Landowners agree to indemnify, defend and hold harmless the
City, any City agencies and their respective elected and appointed councils, boards,
18
commissions, officers, agents, employees, volunteers and representatives from any
and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in
contract, tort or strict liability, including but not limited to personal injury, death at
any time and property damage) and from any and all claims, demands and actions
in law or equity (including reasonable attorneys' fees and litigation expenses) by
any third-party or entity, directly or indirectly arising or alleged to have arisen out
of or in any way related to: (i) the approval of this Agreement or the Project
Approvals; (ii) any development or use of the Property under this Agreement or the
Project Approvals; and (iii) any actions or inactions by the Landowners or their
contractors, subcontractors, agents, or employees in connection with the
construction or improvement of the Property and the Project; provided, however,
that once the City accepts the Public Improvements, Landowners' indemnification
obligation with respect to such improvements shall cease. Notwithstanding the
foregoing, Landowners shall have no indemnification obligation with respect to the
following: (i) the gross negligence or willful misconduct of the City, its contractors,
subcontractors, agents or employees; (ii) the maintenance, use or condition of any
improvement or portion of the Property after the time it has been dedicated to and
accepted by the City or another public entity, or taken over by a property owner's
association; and, (iii) the public use easements after the time the public use
easements have been accepted by the City.
14. Amendment, Cancellation or Suspension.
14.1 Modification Because of Conflict with State or Federal Laws. In the
event that State or Federal laws or regulations enacted after the Effective Date of
this Agreement prevent or preclude compliance with one or more provisions of this
Agreement or require substantial and material changes in Project Approvals, the
parties shall meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or State law or regulation. Any such
amendment of the Agreement shall be approved by the City Council in accordance
with State law, the City Municipal Code, and this Agreement.
14.2 Amendment by Mutual Consent. This Agreement may be amended in
writing from time to time by mutual consent of the parties hereto and in accordance
with the procedures of State law, the City Municipal Code and this Agreement.
14.3 Substantive Amendments. Any substantive modification to this
Agreement shall require approval of an amendment to this Agreement in
accordance with State law and the City Municipal Code. No Amendment to this
Agreement shall be required due to a change to the Project or the Project Approvals
as permitted or authorized by this Agreement.
14.4 Cancellation by Mutual Consent. This Agreement may be Terminated in
whole or in part by the mutual consent of the parties or their successors in interest,
in accordance with the provisions of the State law and the City Municipal Code.
19
15. Default. Subject to Section 19, a Party's violation of any material tenn of this
Agreement or failure by any Party to perform any material obligation of this
Agreement required to be performed by such Party shall constitute a default
("Default").
15.1 Procedure Regarding Defaults. For purposes of this Agreement, a Party
claiming another Party is in Default shall be referred to as the "Complaining Party,"
and the Party alleged to be in Default shall be referred to as the "Party in Default."
A Complaining Party shall not exercise any of its remedies as the result of Default
unless such Complaining Party first gives notice to the Party in Default as provided
in this Section, and the Party in Default fails to cure such Default within the
applicable cure period.
15.2 Notice. The Complaining Party shall give written notice of Default to the
Party in Default, specifying the Default alleged by the Complaining Party. Delay
in giving such notice shall not constitute a waiver of any Default nor shall it change
the time of Default.
15.3 Cure. Subject to Section 19, the Party in Default shall have thirty(30) days
from receipt of the notice of Default to effect a cure prior to exercise of remedies
by the Complaining Party. If the nature of the alleged Default is such that it cannot
practicably be cured within such thirty (30) day period, the cure shall be deemed to
have occurred within such thirty (30) day period if. (a) the cure shall be
commenced at the earliest practicable date following receipt of the notice; (b) the
cure is diligently prosecuted to completion at all times thereafter; (c) at the earliest
practicable date (in no event later than thirty (30) days after the curing Party's
receipt of the notice), the curing Party provides written notice to the other Party that
the cure cannot practicably be completed within such thirty(30) day period; and (d)
the cure is completed at the earliest practicable date. The Party in Default shall
diligently endeavor to cure, correct or remedy the matter complained of, provided
such cure, correction or remedy shall be completed within the applicable time
period set forth herein after receipt of written notice (or such additional time as
may be agreed to by the Complaining Party to be reasonably necessary to correct
the matter).
15.4 Procedure for Terminating Agreement upon Default. If the City desires
to Terminate this Agreement in the event of a Default, the matter shall be set for a
public hearing before the City Council. The burden of proof of whether a Party is
in Default shall be on the Complaining Party. If the City Council determines that a
Landowner is in Default and has not cured to the City's reasonable satisfaction, or
that the Default presents a serious risk to public health, safety or welfare, the City
Council may Terminate this Agreement.
15.5 No Cross Default. Notwithstanding anything to the contrary in this
Agreement, if a Landowner has effected a Transfer so that its interest in the
Property has been divided between Transferees, then any determination that a Party
20
is in Default shall be effective only as to the Party to whom the determination is
made and the portions of the Property in which such Party has an interest.
16. Legal Actions by Parties to the Agreement. If either Party brings an action or
proceeding (including, without limitation, any cross-complaint, counterclaim, or
third-party claim) against the other Party by reason of a Default, or otherwise
arising out of this Agreement, the prevailing Party in such action or proceeding
shall be entitled to its costs and expenses of suit, including but not limited to
reasonable attorneys' fees (including, without limitation, costs and expenses),
which shall be payable whether or not such action is prosecuted to judgment.
"Prevailing Party" within the meaning of this Section shall include, without
limitation, a Party who dismisses an action for recovery hereunder in exchange for
payment of the sums allegedly due, performance of covenants allegedly breached,
or consideration substantially equal to the relief sought in the action.
17. Third Party Court Action. If any court action or proceeding is brought by any
third party to challenge any Project Approval or this Agreement, Landowners shall
have the right to Terminate this Agreement upon thirty (30) days' notice in writing
to the City, given at any time during the pendency of such action or proceeding, or
within ninety (90) days after the final determination therein (including any
appeals), irrespective of the nature of such final determination. Any such action or
proceeding shall constitute an excuse for nonperformance pursuant to Section 19.
18. Agreement Runs with the Land. Except as otherwise provided for in this
Agreement, all of the provisions, agreements, rights, terms, powers, standards,
covenants, and obligations contained in this Agreement shall be binding upon the
parties and their respective heirs, successors and assignees, representatives, lessees,
and all other persons or entities acquiring the Property, or any portion thereof, or
any interest therein, whether by operation of law or in any manner whatsoever. All
of the provisions of this Agreement shall be enforceable as equitable servitude and
shall constitute covenants running with the land pursuant to applicable laws,
including, but not limited to, Section 1468 of the Civil Code of the State of
California, and the burdens and benefits shall be binding upon and inure to the
benefit of each of the Parties and their respective heirs, successors (by merger,
consolidation, or otherwise), assigns, devisees, administrators, representatives, and
lessees.
19. Excuse for Nonperformance. Notwithstanding anything to the contrary in this
Agreement, Landowners and the City shall be excused from performing any
obligation or undertaking provided in this Agreement in the event and so long as
the performance of any such obligation is prevented or delayed, retarded or
I hindered by act of God, fire, earthquake, flood, explosion, action of the elements,
war, invasion, insurrection, riot, mob violence, sabotage, strikes, lockouts,
condemnation, litigation challenging this development agreement or project, court
order or any other reason not caused by and not within the control of the Party
clainung the extension of time to perform. The Party claiming such extension shall
21
send written notice of the claimed extension to the other Party within thirty (30)
days from the commencement of the cause entitling the Party to the extension.
20. Severability. Except as set forth herein, if any term, covenant or condition of this
Agreement or the application thereof to any person, entity or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to persons, entities or
circumstances other than those as to which it is held invalid or unenforceable, shall
not be affected thereby and each term, covenant or condition of this Agreement
shall be valid and be enforced to the fullest extent permitted by law; provided,
however, if any provision of this Agreement is determined to be invalid or
unenforceable and the effect thereof is to deprive a Party hereto of an essential
benefit of its bargain hereunder, then such Party so deprived shall have the option
to Terminate this entire Agreement from and after such determination.
21. Waiver; Remedies Cumulative. Failure by a Party to insist upon the strict
performance of any of the provisions of this Agreement by the other Party,
irrespective of the length of time for which such failure continues, shall not
constitute a waiver of such Party's right to demand strict compliance by such other
Party in the future. All of the remedies permitted or available to a Party under this
Agreement, or at law or in equity, shall be cumulative and not alternative, and
invocation of any such right or remedy shall not constitute a waiver or election of
remedies with respect to any other permitted or available right or remedy.
22. Applicable Law and Venue. This Agreement, and the rights and obligations of
the Parties, shall be governed by and interpreted in accordance with the laws of the
State of California. The parties agree that any lawsuit or legal proceeding arising
hereunder shall be heard in the Superior Court of California located in Riverside,
California.
23. Notices. Any notice to either Party required by this Agreement shall be in writing
and given by delivering the same to such Party in person or by sending the same by
registered or certified mail, or express mail, return receipt requested, with postage
prepaid, to the Party's mailing address. The respective mailing addresses of the
Parties are, rmtil changed as hereinafter provided, the following:
City: City of Menifee
ATTN: City Clerk
29714 Hann Road
Menifee, CA 92586
With a copy to:
22
Landowner Peter G. Aylward
Strategic Property Advisers, Inc.
3250 Vista Diego Road
Jamul, CA 91935-2014
With a copy to: Dennis Fitzpatrick
PacTen Partners
1689 Comstock Avenue
Los Angeles, CA 90024
Any Party may change its mailing address at any time by giving written notice of
such change to the other Party in the manner provided herein at least ten (10) days
prior to the date such change is effected. All notices under this Agreement shall be
deemed given, received, made or communicated on the date personal delivery is
affected or, if mailed, on the delivery date or attempted delivery date shown on the
return receipt.
24. Recordation. The City shall cause this Agreement, any amendment hereto and any
Termination of any parts or provisions hereof, to be recorded, at Landowners'
expense, with the County Recorder within forty (40) days of the Adoption Date
thereof. The failure of the City to record this Agreement or its Termination or
amendment shall not affect the validity of and binding obligations set forth in said
document.
25. Further Assurances. Each Party covenants, on behalf of itself and its successors,
heirs and assigns, to take all actions and do all things, and to execute, with
acknowledgment or affidavit if required, any and all documents and writings that
may be necessary or proper to achieve the purposes and objectives of this
Agreement.
26. Entire Agreement. This written Agreement and the Exhibits contain all the
representations and the entire agreement between the Parties with respect to the
subject matter hereof. Except as otherwise specified in this Agreement, any prior
correspondence, memoranda, agreements, warranties or representations are
superseded in total by this Agreement.
27. Construction of Agreement. The provisions of this Agreement and the Exhibits
shall be construed as a whole according to their common meaning and not strictly
for or against any Party in order to achieve the objectives and purpose of the
23
Parties. The captions preceding the text of each Article, Section, subsection and
the Table of Contents are included only for convenience of reference and shall be
disregarded in the construction and interpretation of this Agreement. Wherever
required by the context, the singular shall include the plural and vice versa, and the
masculine gender shall include the feminine or neuter genders, or vice versa.
Exhibits to this Agreement shall be incorporated into this Agreement as if stated
fully herein. The use in this Agreement of the words "including", "such as" or
words of similar import when following any general term, statement or matter shall
not be construed to limit such statement, tern or matter to the specific items or
matters, whether or not language of non-limitation, such as "without limitation" or
"but not limited to", or words of similar import, are used with reference thereto, but
rather shall be deemed to refer to all other items or matters that could reasonably
fall within the broadest possible scope of such statement, term or matter. This
Agreement has been reviewed and revised by legal counsel for both landowner and
the City, and no presumption or rule that ambiguities shall be construed against the
drafting Party shall apply to the interpretation or enforcement of this Agreement.
28. Signature Pages. For convenience, the signatures of the Parties to this
Agreement may be executed and acknowledged on separate pages in counterparts
which, when attached to this Agreement, shall constitute this as one complete
Agreement.
29. Time. Time is of the essence of this Agreement and of each and every term and
condition hereof.
30. Prevailing Wages. Contractor is aware of the requirements of California Labor
Code Section 1720, et seq., and 1770, et seq., as well as California Code of
Regulations, Title 8, Section 1600, et seq., ("Prevailing Wage Laws"), which
require the payment of prevailing wage rates and the performance of other
requirements on "Public Works" and "Maintenance" projects. Landowners are
responsible for determining whether the Prevailing Wage laws apply to the
transportation improvement projects set forth in Recital F. If Landowners
determine that the transportation improvements set forth in Recital F are being
constructed as part of an applicable "Public Works" or "Maintenance" project, as
defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or
more, Landowners agree to fully comply with such Prevailing Wage
Laws. Landowners shall determine the applicable prevailing rates and make copies
of the prevailing rates of per diem wages for each craft, classification or type of
worker needed to perform the necessary work available to interested parties upon
request, and shall post copies at the Landowner's principal place of business and at
the project site. Landowner shall defend, indemnify and hold the City, its elected
officials, officers, employees and agents free and harmless from any claim or
liability arising out of any failure or alleged failure to comply with the Prevailing
Wage Laws.
24
[END OF TEXT; SIGNATURES NEXT PAGE]
25
IN WITNESS WHEREOF, the City of Menifee, a municipal corporation, has authorized
the execution of this Agreement in duplicate by its Mayor and attested to by its City Clerk
under the authority of Ordinance No. 2013-133, adopted by the City Council of the City of
Menifee on the 20th day of November, 2013, and landowner has caused this Agreement to
be executed.
"CITY" "LANDOWNER"
CITY OF MENIFEE, Zeiders Road Business Park, Inc.,
a muni ' c rp r ion a California corporation
By:
Scott A. Mann, Mayor Ronald A. Schoen
Chief Financial Officer and Secretary
By: Strategic Property Advisers, Inc.,
ATTEST: a California corporation
Its Authorized Advise d Agent
By:
Kathy Bennett, City Clerk Pete ard, President
APPROVED AS TO FORM: Commerce Pointe 1I Menifee, Inc.,
a California corporation
Ju� iggs, City AAZWeey By:
Ronald A. Schoen
Chief Financial Officer and Secretary
By: Strategic Property Advisers, Inc.,
a California corporation
Its4thorized and ntByPesident
300125057.11
1 1/22/13
26
ACKNOWLEDGMENT
State of California
County of San Diego )
On November 27, 2013 before me, J. Ott, Notary Public
(insert name and title of the officer)
personally appeared Peter G. Aylward
who proved to me on the basis of satisfactory evidence to be the personA whose nameA I ate
subscribed to the within instrument and acknowled ed to me thatq/sj e/toy executed the same in
&/h fir/th it authorized capacity(), and that by3/h�/tl�ir signature(M on the instrument the
person( or the entity upon behalf of which the person(F) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
rr
J.OTT
WITNESS my hand and official seal. commission#2021131
Q °«,;
a 1p Notary Public-California
zY. San Diego County
j My^m.Expires Apr 20,2017
Signature (Seal)
ACKNOWLEDGMENT
State of California
County of San Diego )
On November 27, 2013 before me, I Ott, Notary Public
(insert name and title of the officer)
personally appeared Peter G. Aylward
who proved to me on the basis of satisfactory evidence to be the p son1ajj whose name,(g i �
subscribed to the within instrument and acknowled ed to me that 1e syre/t)tey executed the same in
U/hVr/t it authorized capacity(, and that by is h;f/t it sigrl�ture(;#) on the instrument the
person( or the entity upon behalf of which the p son( acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS m hand and official seal. d. #
y Commission TT
N 2021131
i • Notary Public•California =
San Diego County '
M Comm.Ex Tres Apr 20,2017
Signature (Seal)
IN WITNESS WHEREOF, the City of Menifee, a municipal corporation, has authorized
the execution of this Agreement in duplicate by its Mayor and attested to by its City Clerk
under the authority of Ordinance No. 2013-133, adopted by the City Council of the City of
Menifee on the 20th day of November, 2013, and landowner has caused this Agreement to
be executed.
"CITY" "LANDOWNER'
CITY OF MENIFEE, Zeiders Road Business Park,Inc.,
a municipal corporation a California corporation y
By:
Scott A. Mann,Mayor Ronald A. Schoen
Chief Financial Officer and Secretary
By: Strategic Property Advisers, Inc.,
ATTEST: a California corporation
Its Authorized Adviser and Agent
Kathy Bennett, City Clerk By.
Peter G. Aylward,President
APPROVED AS TO FORM: Commerce Pointe 11 Menifee,Inc.,
a California corporation
Julie H.Biggs,City Attorney By:
Ronald A. Schoen '
Chief Financial Officer and Secretary
By: Strategic Property Advisers,Inc.,
a California corporation
Its Authorized Adviser and Agent
By:
Peter G. Aylward,President
300125057.11
11/22/13
26
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
4
On before me, _N�Z L'I Cr4�{t c D�, N O'ipp_�( t�W Q,C
Date Here Insert Name ntl Title of the Officer
personally appeared 62oNPr� f} , SGylvc`A
Name(s)of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the persorof whose name(s) is/are•
subscribed to the within instrument and acknowledged
to me that he/eheAhey executed the same in
hiS/hefAheir authorized capacity(!*, and that by
his/hefAheir signatures on the instrument the
NELIy CAYYY00 personjg , or the entity upon behalf of which the
Commission•1959757 personWacted, executed the instrument.
Notary Public-Ca itomia
Los Angela County I.
Comm.E tzar p I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature: L`a �c ti
Place Notary Seal and/or Stamp Above Sig stun of Notary lic
OPTIONAL
Though the information below is not required by law,it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s)Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
❑ Individual ❑ Individual MENEM
❑ Partner—❑Limited ❑General Top of thumb here ❑Partner—❑Limited ❑General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
❑ Trustee ❑Trustee
❑ Guardian or Conservator ❑Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
4
®2008 National Notary Association•9360 Oe Soto Ave.,P.O.Boz 2402•Chatsworth,CA 9131&2402•www.NalionalNotary.argy Item g590] Re order.Call Toll-Free 1-800-876-6627
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of �
On la- OJ ao 13 before me, a� /�D(]�t�2 Y (t✓(,JC
Date Here Insert Neme end Ti a ofthe Offlcef
personally appeared �jC_ - EN
Name(s)of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the personJ,a'f whose nameA islaw
subscribed to the within instrument and acknowledged
to me that helsheAhay_ executed the same in
his/haiAbeL authorized capacity(,ies-Y and that by
his/her/their signatures} on the instrument the
NELLY CAvw000 person(s), or the entity upon behalf of which the
Commission to 1969757 person(s) acted, executed the instrument.
Notary Public-California z
Los AngelaaCoumy ' I certify under PENALTY OF PERJURY under the
Comm. 1 laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature: �Z
Place Notary Seel and/or Stamp Above Signeturd of Notary Public �
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
❑ Individual ❑Individual WON,H
❑ Partner—❑Limited ❑General Top of thumb here ❑Partner—❑Limited ❑General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
❑ Trustee ❑Trustee
❑ Guardian or Conservator ❑Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
02MB National Notary Association•9350 De Soto Ave.,P.O.Box 2402•ChatsmM,CA 91313-2402,w .Nafionafttary.org Item x5907 Reorder:Call Toll-Free 1-800-87&6B27
Exhibit A
Property Description
L.ECAL DESCRIPTION
CP i
Rea[ProPerly In tile Clty of N1 mi6Tee,C unCr of Nvemlllde,State oP QXfarrfla,&�bed ar fallow,:
01WSTC3'N 1:
PARCELS 1 AND 2 AND LOTS 8,C AND D OF RARCFL MAP 8165p AS PER MAP RECORDED IN
BOO;31, RACE 50 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CAUPOR.NTA,,
DIVISION 2;
PARCEL A OF LOT LINE ADJUS rw-NT NO. 050,16 RECORDED ON JUNE 23,2006 AS INSTRUMENT
NIC, 2005•04526S2 OF RTVC'RSIDE COUNTY RECCDRp,">, DESCtIB!ED A'5 PJLLOtJ5:
SLING A PORTION OF PARCEL 3 OF PARCEL MAP 81.58,AS SHOWN IN BOOK 31 PAGE 50,
INCLUSIVE OF MAPS AND A PORTION OF-n1r=SOUTHEAST QUARTER OF SECTICPt 22,
TOWNSHIP 6 SOUTH, RANGE 3'WEST, S,B,B,M„ AS DESCRIBED IN DEED RECORDED
55PTEMBER 30, 2005 AS 1167RUMENT NUMBER 2005.08i3258, RECORDSOF RIVERSIDE
OCONTY, CALIFORNIA, BEING MORE AAR'rICUILA RLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE 9c7uTHW'EST CORIIeR OF SAID PARCEL 3,SAID POINT ALSO SEINE A
POINT ON THE l CENTERLINE OF ZEDDER5 ROAD, AS SHOWN ON SAID PARCEL MAP'8158,
THENCE NORTH ALONG THE WESTERLY'LINE OF;SAID PARCEL 3 AND THE CENTERLINE OF
SAID ZEI,Da RS ROAD-NORTH 00°22:'0611 EAST.A DISTANCE OF 410.41 FEET TO THE
NORTHWEST CORNER OF SAID PARCEL 3;
THENCE ALONGG-THE NORTHERLY LINE OF SAID PARCEL 3, EOLYTH 89'26'00"EAST,A
DISTANCE OF 11B'I-13 FEETTO THE NORTHEAST'CORNER OF SAID PARCEL 3;
THENCE, NORTH ALONG'THE EASTERLY LINE OF(PARCEL 2 OF SAID PARCEL MAP 81.58, NORTH
OY0370"EAST, A D15TA 10E OF 311.14 FEET;
THENCE CON i NUINC NORTH ALONG ni.E EASTERLY LINE OF SAID PARCEL 2.NORTH
1302,5'35°'VEST, A DISTANCE OF 133.33 FEET'TO THE NORTHEAST CORNER OF SAID PARCEL
2,SAID POINT ALSO BEING THE SOUTHEAST CORNER OF PARCEL I AS SHOWN ON SAID
PARCEL MAP 8158;
THENCE NORTH ALONG FHE EASTERLY LINE OF$A'[D PARCEL 1 NORTH 11312515"WEST,A
DISTANCE OF 253,52 FEET;
THENCE CONTINUING NORTH ALONG THE EASTERLY LINE OF SAID PARCEL I NORTH
3I°2.0"06"VAST, A DISTANCE OF 226,27 FEET TO THE NORTHEAST CORNER OF SAID PARCEL
1;
THENCE SOUTH 89026`00" EASE',,A DISTANCE'OF 37.20,FEET,,
THEI'NCE SOUTH 09059'30"WEST, A DISTANCE OF 210,15(FELT,
"nTwE 5C1u'rH 12°041$" EAST, A DISTANCE OF 151•03 FEET,
THENCE SOUTH 00024'17"WEST,.A DISTAINCE OF 9S100 FEET;,
THENCE $DUTH 06'18120" EAS'T,A DISTANCE 01, 13Z PACT;
71-M 1 IC NORM 89"2848"1 YNCST,A rASTANCP'Or 1T52.15 METTO THC POINT DIP
BFW7UNING,
APM 584.160.003.2(old) 384.150-00M (navj) penal 384•150-010-$ (now) and 3a4 150-002:-1
(ow) (now)
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LEGAL. DESCRIPTSON
CP 2
Rcnl prOpetty In the Clty of MLnIfee, County of Rlver,Mde,Stale Of Cai fora , desc6bed ns fo[low'�s:
TENTATIVE PARCEL MAP NO. 35N35,DEINCr A DIVISION OF THE FOLLOWING:
THE VVELST°1.2 OF THE FOLLOWING DESCRIBED PARCEL OF LAND;
THAT PORTION OF THE EAST 12 Dr THE NORTHEAST%OF`ME SECTION 22, TOWNSHIP 6
SOUTH, RANGE 3 WUT,SAN BERNARMNO BASS AND MERIDIAN, AS SHOWN BY UINJTED
STATES GOVERNMENT SURVEY At D MORE PAR,11CULARLY DES RIl3FD AS FOLLOWS;
COMMENCING AT THE SOUj'HEr1ST(lXRN!ER OFTHE NORTHEAST 1/1,OF SAID SECTION 22;
THENCE NORTH 89Q 58'00"WEST,ALONG THE SOUTH II'NE OF SAID NORTHEAST 1;/4,A
TH
DISTANCE OF 10.OD FEET TO E TRUE POINT OF BEGINNING; TEIENCE CONTINUING NORTH
890 58' 00" W5ST,ALONG SAIiO SOUTH LIME A DISTANCE OF 1,287.68 FEET TO THE SOUTHWEST
CORNER OF SAID CAST 1/2 OP SAID NORTHEAST'la,;THENCE NORTH 0i06 IW 1S"WEST,ALONG
THE'W58TLINF OF SAID FAST 1/2,883.19 FEETTO,THE POINT OF INTERSECTION OF THE
WESTERLY PROLONGATION OF THE SOUTHERLY LINE OF PARCEL,6 AS SHOWN ON RECORD OF
SURVEY ON FILE IN BOOK 2I, PAGE 33 RECORDS OF S,URUIEy, RIVERSIDE COUNTY RECOR!ps,
NORTH TIiENCE' 850 52"00°' FAST,ALONG,THE WESTERLY PROLONGATION OF SAID SOUTHERLY
LINE AND SAID SOUTHERLY LINE 1,Z88.2.5 FEETTO A POINT THAT IS 30.60 FEET WFSTOFTHE
EAST LINE OF SAID NORTHEAS'B 1/;; THENCE SOUTH 00° EAST, 8$7r02 FEET T
GFS' OQ" ToT{E
TRUE POINT OF BEGINNING,
APING 35q-1$U-026-6
AL LA �
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Exhibit B
Development Agreement Material Terms
COMMERCE POINTE PROJECT
Material Terms for Pending Development Agreement
and Associated Tract Map
A. Introduction
The Menifee City Council unanimously approved the Commerce Pointe Project on
Zeiders Road in 2009, Separately, Caltrans, the County of Riverside and the Cities of Menifee
and Mturieta have been working closely to implement improvements to the existing 1-215/Scott
Road interchange in an effort to improve regional circulation and meet future traffic needs. The
Corrunerce Pointe Project is required to make major improvements to Zeiders Road and Ciccotti
Street (between Zeiders Road and Bailey Park Boulevard) that will be important to the regional
traffic circulation during and after the construction of the I-215/Scott Road improvements,
However, the economic recession has delayed the Commerce Pointe Project and, consequently,
the required transportation improvements. Therefore, City staff and the Commerce Pointe
Project owners have been discussing the terms of a possible development agreement that would
allow for the completion of the Commerce Pointe Project over time as the market returns, but
guarantee the early delivery of the critical regional transportation improvements. Other puUlic
benefits provided by the Commerce Pointe Project through the proposed development
agreement are outlined on the attached Exhibit A.
A DevelownentAYreenaent ("Agreement")
1. Project Approvals and Modifications. In 2009, the City approved plot plans for
Commerce Pointe I and II on adjacent parcels for a total of 827,777 square feet (the
"Project"). The Agreement provides that the Project may be completed over time in
accordance with all the Project Approvals and other laws and regulations in place as of the
date of the Agreement. The Agreement also establishes a process for the City to
administratively approve minor modifications to the Project (such as adjusting the building
footprints) to accommodate changing market conditions and engineering requirements as the
Project progresses. The following refinements and modifications to the Project are
considered to be minor modifications that shall be approved administratively unless appealed
to the Plarming Commission in accordance with Section 2.20.150 of the Menifee City Code:
(i) changes in landscaping; (ii) variations in the location or size of strictures that do not
increase the maximum aggregate floor area of the Project, including consolidation or
aggregation of building footprints as long as no single building exceeds 250,000 square feet;
(iii) variations in the location of utilities or other infrastructure connections or facilities not
materially affecting design concepts; (iv) variations in the open space or conservation area
configurations that do not reduce the aggregate size of open space or conservation area; (v)
I
minor adjustments to the tentative map, final map or the legal descriptions to accotnrnodate
approved modifications to other Project Approvals; (vi) map phasing and condominium
plans; and (vii) similar modifications or other minor changes that are nunisterial in nature
and are not subject to further review under the California Enviromnental Quality Act.
2, Corservation Easement, The City would agree to accept the dedication of a 1.97-acre
portion of the property that is required by state and federal resource agencies to be protected
by a conservation easement for habitat mitigation, provided that the property owners have
established a secured method for funding the long-term maintenance costs of the easement
area. The City and the Project owners intend to annex the property into a landscape and
lighting maintenance district so that future tax assessments property
Commerce Pointe would
provide funding for the Ciiy's expenditures related to maintenance and reporting obligations
for the conservation area. The City and the Project owners have executed a Letter of
Understanding for the appropriate resource agencies confirming the intention to implement
the Conservation Easement in accordance with this paragraph.
3. Term. The Development Agreement would be effective for ten years. The term of all
Project Approvals will be extended automatically through the term of the Development
Agreement,
4, Zeider_ s Road, The Project owners will construct Phase 1 of the Zeiders Road
improvements to commence upon the earlier of (i) 180 days after the permit is issued for
mass grading of the Project, or (ii) July 1, 2015. Phase I of Zeiders Road will include
minimum standards for a 2-lane paved roadway from approximately 200 feet south of
Ciccotti Street northward to the improved section south of Scott Road, with one level of
asphalt paving and curb and gutter on the east side of Zeiders Road, but no sidewalks or
landscaping incorporated in Phase 1. The owners agree to folly complete Zeiders Road in
accordance with approved street, sewer, water and landscape plans prior to issuance the
of first occupancy permit for the Project. The Phase I Zeiders Road improvement plans shall
be attached to the final executed Agreement as Exhibits and_
5. Ciccotti Street. The Project owners will also construct Phase I Of the Ciccotti Street
improvements from Zeiders Road to Bailey Park Boulevard to minimum all-weather
standards for a 2-lane road (without curb, gutter, sidewalk or landscaping) to commence
upon the earlier of(i) 180 days after the permit is issued for mass grading of the Project, or
(ii) July 1, 2015. The owners agree to complete full construction of Ciccotti Street prior to
issuance of the first occupancy permit for the Project. The Phase I Ciccotti Street
improvement plans shall be attached to the final executed Agreement as Exhibits and
G. TIJMI Credits for Phase 1 Inr rovements. The timely construction of improvements
to Zeiders Road and Ciccotti Sheet, by the Project owners, as well as the required closure of
Bailey Park Drive, is critical to the Scott Road Interchange project and the regional
transportation system. The Scott RoacVI-215 interchange is included in the Western
Riverside Council of Governments ("WRCOG") Transportation Uniform Mitigation Fee
("TUMF") program and the County of Riverside Scott Road Road & Bridge Beneift District
2
("RBBD") program. The City of Menifee administers collection of fees and approval of fee
credits/reimbursement for development projects within city boundaries subject to
administrative guidelines for each respective program. Under the Development Agreement,
the City will use its best efforts to obtain approval to permit the use of TUMF for the
proposed improvements to Zeiders Road and Ciccotti Street, such that the Project owners'
costs for delivery of the improvements is credited against the Project owners' obligation to
pay the applicable TUMF for the Project. If the cost of the improvements to Zeiders Road
and Ciccotti Street exceeds the Project owners' TUMF obligation, the Project owners may
request, to WRCOG, a reimbursement for such costs through the TUMF program. To the
extent permissible, the City will provide construction in lieu RBBD fee credits for these
improvements. In no case shall duplicate fee credits be issued for the same costs related to
eligible improvements.
7. Timing for Approvals and Construction. Attached as Exhibit B is a proposed
schedule showing the timing of the Agreement, parcel map and conservation easement
approvals that would allow construction of the transportation improvements to begin by
September 2013.
8, Other Usual and Customary Terms The Agreement will include other usual and
customary provisions, including a description of the public benefits from the Project (see
attached Exhibit A) and other standard terms addressing transfers and assignments, lender
obligations Said protections, annual review of the development agreement, indemnification,
default and enforcements, and other normal miscellaneous provisions,
C. Tentative Maps
The property owners' have applied for two tentative maps for the Project, which are
consistent with the existing approved plot plans and substantially similar to the vesting
tentative tract map that was previously filed for the Project. The tentative maps will be
processed concurrently with the proposed Agreement and intended for consideration by the
City Planning Commission prior to the City Council's consideration of the Agreement. If
approved, the tentative maps will become part of the Project Approvals subject to the
Agreement.
I
3
Exhibit A
Public Benefits of the Project
A. Contributing to an increased quality of life for local residents by providing jobs in
close proximity to the home, improving the jobs-to-housing balance for Citywide
planning, and reducing commuter traffic to San Diego, Orange and Los Angeles
Counties;
B. Providing fiscal benefits to the City's general fiord in terms of increased property tax
revenues;
C. Creating substantial employment opportunities including both short-term
construction employment and long-term permanent employment within City;
D. Providing funding for transportation improvements at the following intersections to
help alleviate existing failing levels of service:
(1) Scott & Murrieta Road;
(2) Zeiders Road/Haun Road & Scott Road;
(3) I-215 southbound ramps & Scott Road;
(4) I-215 northbound ramps & Scott Road;
(5) Zeiders Road & Keller Road;
(6) Antelope Road & Scott Road; and,
(7) Haun Road & Holland Road.
E. Constructing timely and needed backbone infrastructure to the surrounding area,
including the following public improvements:
(1) Zeiders Road between Scott Road and Keller Road;
(2) Ciccotti Street between Zeiders Road and Bailey Park Boulevard;
(3) Bailey Park Boulevard near Ciccotti Street;
(4) Undergrounding of utilities along Zeiders Road from the south Commerce Pointe
property line to the Scott Road intersection; and,
(5) Expanded storm drain and sewer facilities to meet projected regional needs.
F. Delivering a high quality industrial development that will enhance the surrounding
community and provide opportunities to meet the demands of local and regional area
businesses;
G. Providing recreational amenities for the employees and the community at large; and,
H. Conserving and enhancing valuable biologically sensitive areas and open space.
307855377.7
10/24/13
4
Exhibit c
Development I'llpaotwr
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Exhibit D
Phase I Zeiders Road Improvement Plans
Exhibit F
Property Depiction of Conservation Easement Area
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Exhibit G
Form of Conservation Easement
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Zeiders Road Business Park, Inc.
c/o Peter G. Aylward
Strategic Property Advisers, Inc.
3250 Vista Diego Road
Jamul, CA 91935-2014
CONSERVATION EASEMENT DEED
This CONSERVATION EASEMENT DEED ("Conservation Easement")
is made this day of 2013 by Zeiders Road Business Park, Inc., a
California corporation ("Grantor"), in favor of the City of Menifee ("Grantee"),
RECITALS
A. Grantor is the sole owner in fee simple of real property containing 36.07 acres,
located in the City of Menifee, County of Riverside, State of California, designated
Assessor's Parcel Numbers 384-150-008, 384-150-009 and 384-150-010 (the
"Property"). The Property is legally described on Exhibit "A" attached hereto and
incorporated by this reference. Grantor intends to grant a conservation easement over
a 1 .97-acre portion of the Property (the "Easement Area"). The Easement Area is
legally described on Exhibit "B" and depicted on Exhibit "C" attached hereto and
incorporated by this reference.
B. The Easement Area provides, among other things, compensatory mitigation for
unavoidable impacts associated with the Commerce Pointe Industrial Park Project by
Grantor pursuant to requirements of the following state and Federal approvals
(collectively, "Agency Approvals"): (1) United States Army Corps of Engineers'
("ACOE") Section 404 Permit No. SPL-2012-00052-JPL and any amendments thereto
(the "Section 404 Permit").
C. This Conservation Easement is designed to satisfy and is granted in satisfaction
of the Agency Approval.
1
D. Consistent with the terms and conditions of this Conservation Easement, the
Easement Area is and will remain in a Natural Condition as defined herein and is
intended to be preserved in its natural, scenic, open condition to maintain its ecological,
historical, visual and educational values (collectively, "Conservation Values"). The
Conservation Values are of importance to the people of the County of Riverside and the
people of the State of California and United States.
E. Grantee is authorized to hold conservation easements pursuant to Civil Code
Section 815.3. Specifically, Grantee is a governmental entity identified in Civil Code
Section 815.3(b) and otherwise authorized to acquire and hold title to real property.
F. The ACOE is the Federal agency charged with regulatory authority over
discharges of dredged and fill material in waters of the United States pursuant to
Section 404 of the Clean Water Act, and is a third party beneficiary of this Conservation
Easement.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
In consideration of the above recitals and the mutual covenants, terms,
conditions, and restrictions contained herein, and pursuant to the laws of the United
States and State of California, including Civil Code Section 815, et seq., Grantor hereby
voluntarily grants and conveys to Grantee and its successors or assigns, as
appropriate, a Conservation Easement in perpetuity over the Easement Area of the
nature and character and to the extent hereinafter set forth. This Conservation
Easement shall run with the land and be binding on Grantor's heirs, successors,
administrators, assigns, lessees, and other occupiers or users of the Easement Area or
any portion of it.
1. Purpose.
(a) The purpose of this Conservation Easement is to ensure the
Easement Area will be managed and preserved in a Natural Condition, as defined
herein, in perpetuity and to prevent any use of the Easement Area that will impair or
interfere with the Conservation Values of the Easement Area (the "Purpose"). Grantor
intends that this Conservation Easement will confine the use of the Easement Area to
such activities that are consistent with this Purpose, including without limitation, those
involving the preservation, restoration, and enhancement of native species and their
habitats.
2
(b) The term "Natural Condition," as referenced in the preceding
paragraph and other portions of this Conservation Easement, shall mean the condition
of the Easement Area, as it exists at the time this Conservation Easement is executed,
as well as future enhancements or changes to the Easement Area that occur directly as
a result of the following activities:
(1) Compensatory mitigation measures, including
implementation, maintenance, and monitoring activities (collectively, "Compensatory
Mitigation") required by the Agency Approval and as described in the Final Habitat
Mitigation and Monitoring Plan dated 22 October 2013 ("Mitigation Plan"), a copy of
which is attached as Exhibit "D;"
(2) In-perpetuity maintenance ("Long-Term Maintenance") as
described in Section 16 herein; or
(3) Activities described in Sections 4-6 herein.
(c) To the best of the Grantor's knowledge, Grantor represents and
warrants that there are no structures or improvements existing on the Easement Area at
the time this grant is executed. Grantor further represents and warrants that there are
no other previously granted easements existing on the Easement Area that interfere or
conflict with the Purpose of this Conservation Easement as evidenced by the Title
Report attached at Exhibit "E." The present Natural Condition is evidenced in part by
the depiction of the Easement Area attached on Exhibit "F," showing all relevant and
plottable property lines, easements, dedications, improvements, boundaries and major,
distinct natural features such as waters of the United States. Grantor has delivered
further evidence of the present Natural Condition to Grantee and ACOE consisting of
(1) a color aerial photograph of the Easement Area at an appropriate scale taken as
close in time as possible to the date this Conservation Easement is executed; (2) an
overlay of the Easement Area boundaries on such aerial photograph; and (3) on-site
color photographs showing all man-made improvements or structures (if any) and the
major, distinct natural features of the Easement Area.
(d) If a controversy arises with respect to the present Natural Condition
of the Easement Area, Grantor, Grantee, or ACOE or any designees or agents of
Grantor, Grantee, and ACOE shall not be foreclosed from utilizing any and all other
relevant documents, surveys, photographs or other evidence or information to assist in
the resolution of the controversy.
3
(e) The term "Biological Monitor" shall mean an independent third-
party consultant with knowledge of aquatic resources in the Riverside County area and
expertise in the field of biology or related field.
2. Grantee's Rights. To accomplish the Purpose of this Conservation
Easement, Grantor hereby grants and conveys the following rights to Grantee. These
rights, without obligation, are also granted to ACOE or their designees as third party
beneficiaries of this Conservation Easement:
Area; and (a) To preserve and protect the Conservation Values of the Easement
(b) To enter upon the Easement Area and Property at reasonable
times in order to monitor compliance with and to otherwise enforce the terms of this
Conservation Easement; and
(c) To prevent any activity on or use of the Easement Area that is
inconsistent with the Purpose of this Conservation Easement and to require the
restoration of such areas or features of the Easement Area that may be damaged by
any act, failure to act, or any use that is inconsistent with the Purpose of this
Conservation Easement; and
(d) All mineral, air, and water rights necessary to protect and to sustain
the biological resources of the Easement Area, provided that any exercise of such
rights by Grantee shall not result in conflict with such Conservation Values; and
(e) All present and future development rights allocated, implied,
reserved or inherent in the Easement Area are hereby terminated and extinguished and
such present and future development rights may not be used on or transferred to any
portion of the Property, nor any other property adjacent or otherwise; and
(f) The right to enforce by any means, including, without limitation,
injunctive relief, the terms and conditions of this Conservation Easement.
3. Prohibited Uses. Any activity on or use of the Easement Area
inconsistent with the Purpose of this Conservation Easement and not reserved as a
right of Grantor is prohibited. Without limiting the generality of the foregoing, the
following uses by Grantor, Grantee, and their respective guests, agents, assigns,
employees, representatives, successors, and third parties are expressly prohibited on
4
the Easement Area except as otherwise provided herein or unless specifically provided
for in the Agency Approval, the Mitigation Plan, and any easements and reservations of
rights recorded in the chain of title to the Easement Area at the time of this conveyance
(as set forth on Exhibits E and F hereto):
(a) Unseasonable or supplemental watering except for habitat
enhancement activities described in Section 6(b) or the Mitigation Plan;
(b) Use of herbicides, pesticides, biocides, fertilizers, or other
agricultural chemicals or weed abatement activities, except weed abatement activities
necessary to control or remove invasive, exotic plant species as allowed in Section 6(c);
(c) Incompatible fire protection activities except fire prevention activities
set forth in Section 6;
(d) Use of off-road vehicles and use of any other motorized vehicles
except on existing roadways;
(e) Grazing or other agricultural activity of any kind;
(f) Recreational activities including, but not limited to, horseback
riding, biking, hunting or fishing;
(g) Residential, commercial, retail, institutional, or industrial uses;
(h) Any legal or de facto division, subdivision or partitioning of the
Easement Area;
(i) Construction, reconstruction or placement of any building, road,
wireless communication cell towers, or any other structure or improvement, except as
provided for in Section 6, or any billboard or sign except those signs specifically allowed
under Section 5(c)•
Q) Dumping soil, trash, ashes, refuse, waste, bio-solids, garbage or
any other material;
(k) Planting, gardening, or introduction or dispersal of non-native plant
or animal species;
(1) Filling, dumping, excavating, draining, dredging, mining, drilling,
removing or exploring for or extraction of minerals, loam, gravel, soil, rock, sand or
other material on or below the surface of the Easement Area;
(m) Altering the general topography of the Easement Area or the
design hydrology for the mitigation channel in the Easement Area, including but not
limited to building of roads, trails, and flood control work; except as permitted by the
5
Agency Approval, or as necessary to implement the Mitigation Plan, or any right
reserved in Section 6, or Section 16:
(n) Removing, destroying, or cutting of trees, shrubs or other
vegetation, except for (1) emergency fire breaks as required by fire safety officials as
set forth in Section 6(e), (2) prevention or treatment of disease, (3) control of invasive
species which threaten the integrity of the habitat, (4) completing the Mitigation Plan, or
(5) activities described in Section 4, Section 6, or Section 16;
(o) Manipulating, impounding or altering any natural watercourse, body
of water or water circulation on the Easement Area, and activities or uses detrimental to
water quality, including but not limited to degradation or pollution of any surface or sub-
surface waters;
(p) Creating, enhancing, and maintaining fuel modification zones
(defined as a strip of mowed land or the planting of vegetation possessing low
combustibility for purposes of fire suppression) or other activities that could constitute
fuel modification zones;
(q) Without the prior written consent of Grantee, which Grantee may
withhold, transferring, encumbering, selling, leasing, or otherwise separating the mineral
rights or water rights for the Easement Area; changing the place or purpose of use of
the water rights; abandoning or allowing the abandonment of, by action or inaction, any
water or water rights, ditch or ditch rights, spring rights, reservoir or storage rights,
wells, ground water rights, or other rights in and to the use of water historically used on
or otherwise appurtenant to the Easement Area; and
(r) Creation of any encumbrance superior to this Conservation
Easement, other than those encumbrances set forth in Exhibit "E" hereto, or the
recording of any involuntary lien (which is not released within thirty calendar days), or
the granting of any lease, license or similar possessory interest in the Easement Area
which will affect the Conservation Values of the Easement Area.
4. Grantor's Duties. To accomplish the Purpose of this Conservation
Easement as described in Section 1, Grantor shall undertake the following construction,
maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until
issuance of final approval per the Agency Approval confir
ming that Grantor has
successfully completed construction, maintenance and monitoring of mitigated areas
pursuant to the Mitigation Plan ("Final Approval"). This duty is non-transferable.
Grantor, its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlawful entry and
trespass by persons whose activities may degrade or harm the Conservation Values of
the Easement Area. In addition, Grantor shall undertake all necessary actions to perfect
Grantee's rights under Section 2 of this Conservation Easement;
6
(b) Cooperate with Grantee, its successors or assigns in the protection
of the Conservation Values;
(c) Pursuant to Section 16(d), below, repair and restore damage to the
Easement Area directly or indirectly, caused by Grantor, Grantor's guests,
representatives, employees or agents, and third parties within Grantor's control;
provided, however, Grantor, its successors or assigns shall not engage in any repair or
restoration work in the Easement Area without first consulting with the Grantee or its
successor or assigns and ACOE; and
(d) Obtain any applicable governmental permits and approvals for any
activity or use permitted by this Conservation Easement, and any activity or use shall be
undertaken in accordance with all applicable federal, state, local and administrative
agency statutes, ordinances, rules, regulations, orders or requirements.
5. Grantee's Duties. To accomplish the Purpose of this Conservation
Easement as described in Section 1, Grantee shall:
(a) Perform at least quarterly compliance inspections of the Easement
Area, prepare an annual inspection report that documents the quarterly inspection
results, and shall make reports available to ACOE upon request;
(b) Upon receipt of Final Approval, perform the Long-Term
Maintenance of the Easement Area as described in Section 16;
(c) Within 90 days of recordation of this Conservation Easement, erect
signs and other notification features saying "Natural Area Open Space," "Protected
Natural Area," or similar descriptions. Prior to erection of such signage, Grantee shall
submit detailed plans showing the location and language of such signs to ACOE for
review and approval. The erection and maintenance of informative signage shall not be
in direct or potential conflict with the preservation of the Natural Condition of the
Easement Area or the Purpose of this Conservation Easement and shall be performed
in compliance with all applicable statutes, regulations, and permitting requirements;
(d) Pursuant to the requirements of Section 16(e), below, repair and
restore damage to the Easement Area directly or indirectly caused by Grantee,
Grantee's guests, representatives, employees or agents, and third parties within
Grantee's control provided, however, Grantee, its successors or assigns shall not
engage in any repair or restoration work on the Easement Area without first consulting
with Grantor and ACOE; and
(e) Set aside, hold, invest and disburse adequate Special Assessment
District funds (described in Section 17) solely for the purposes of preserving the
Conservation Values of the Easement Area under this Conservation Easement in
perpetuity.
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6. Reserved Rights. Grantor reserves to itself, and to its personal
representatives, heirs, successors, and assigns, all rights accruing from its ownership of
the Easement Area, including the right to engage in or to permit or invite others to
engage in all uses of the Easement Area that are not expressly prohibited or limited by,
and are consistent with, the Purpose of this Conservation Easement, including the
following uses:
(a) Access. Reasonable access through the Easement Area and
Property to adjacent land over existing roads, or to perform obligations or other
activities permitted by this Conservation Easement.
(b) Habitat Enhancement Activities. Creation and enhancement of
native plant communities, including the right to plant trees and shrubs of the same type
as currently existing on the Easement Area, so long as such activities do not harm the
habitat types identified in the Agency Approval or Mitigation Plan. For purposes of
preventing erosion and reestablishing native vegetation, the Grantor shall have the right
to revegetate areas that may be damaged by the permitted activities under this
Section 6, naturally occurring events or by the acts of persons wrongfully damaging the
Natural Condition of the Easement Area. Prior to any habitat enhancement activities,
Grantor shall have a Biological Monitor submit detailed plans to ACOE for review and
approval. Habitat enhancement activities shall not be in direct or potential conflict with
the preservation of the Natural Condition of the Easement Area or the Purpose of this
Conservation Easement and shall be performed in compliance with all applicable
statutes, regulations, and permitting requirements.
(c) Vegetation. Debris and Exotic Species Removal. Removal or
trimming of vegetation downed or damaged due to natural disaster, removal of man-
made debris, removal of parasitic vegetation (as it relates to the health of the host
plant) and removal of non-native or exotic plant or animal species. Vegetation, debris,
and exotic plant species removal shall not be in direct or potential conflict with the
preservation of the Natural Condition of the Easement Area or the Purpose of this
Conservation Easement and shall be performed in compliance with all applicable laws,
regulations, and permitting requirements.
(d) No Interference with Development of Adjoining Property.
Notwithstanding anything set forth herein to the contrary, nothing in this Conservation
Easement is intended nor shall be applied to in any way limit Grantor or any of
Grantor's successors and assigns from (1) constructing, placing, installing, and/or
erecting any improvements upon the portions of the Property not constituting the
Easement Area and/or (2) developing adjoining property for any purposes, except as
limited by any local, state or federal permit requirements for such development and
provided that for all of the above clauses (1) and (2) neither such activity nor any effect
resulting from such activity amounts to a use of the Easement Area, or has an impact
upon the Easement Area, that is prohibited by Section 3 above.
(e) Fire Protection. The right, in an emergency situation only, to
8
maintain firebreaks (defined as a strip of plowed or cleared land made to check the
spread of a fire), trim or remove brush, otherwise perform preventative measures
required by the fire department to protect structures and other improvements from
encroaching fire. All other brush management activities shall be limited to areas
outside the Easement Area.
7. Enforcement.
(a) Right to Enforce. Grantor, its successors and assigns, grant to
ACOE, the U.S. Department of Justice, and the State of California a discretionary right
to enforce this Conservation Easement in a judicial or administrative action against any
person(s) or other entity(ies) violating or attempting to violate this Conservation
Easement; provided, however, that no violation of this Conservation Easement shall
result in a forfeiture or reversion of title. The ACOE, U.S. Department of Justice, and
the State of California shall have the same rights, remedies and limitations as Grantee
under this Section 7. The rights under this Section are in addition to, and do not limit
rights conferred in Section 2 above, the rights of enforcement against Grantor, Grantee
and their successors or assigns under the Agency Approval, or any rights of the various
documents created thereunder or referred to therein. The term "Party" means Grantor
or Grantee, as the case may be. Grantor, Grantee, and any third party beneficiaries,
when implementing any remedies under this easement, shall provide timely written
notice to each other of any actions taken under this section, including, but not limited to
copies of all notices of violation and related correspondence.
(b) Notice of Violation. In the event that a Party or its employees,
agents, contractors or invitees is in violation of the terms of this Conservation Easement
or that a violation is threatened, the non-violating Party and/or third party beneficiaries
may demand the cure of such violation. In such a case, the non-violating Party and/or
third party beneficiaries shall issue a written notice to the violating Party (hereinafter
"Notice of Violation") informing the violating Party of the actual or threatened violations
and demanding cure of such violations. The Notice of Violation shall be sent to the
other Party and third party beneficiaries listed under Section 14 of this Conservation
Easement.
(c) Time to Cure. The violating Party shall cure the noticed violation
within thirty (30) days of receipt of said written Notice of Violation. If said cure
reasonably requires more than thirty (30) days, the violating Party shall, within the thirty
(30) day period, submit to the non-violating Party and/or third party beneficiaries, as the
case may be, for review and approval a plan and time schedule to diligently complete a
cure. The violating Party shall complete such cure in accordance with the approved
plan. If the violating Party disputes the notice of violation, it shall issue a written notice
of such dispute (hereinafter "Notice of Dispute") to the appropriate Party and/or third
party beneficiary within thirty (30) days of receipt of written Notice of Violation.
9
(d) Failure to Cure. If the violating Party fails to cure the violation
within the time period(s) described in Section 7(c), above, or Section 7(e)(2), below, the
non-violating Party and/or third party beneficiaries may bring an action at law or in
equity in a court of competent jurisdiction to enforce compliance by the violating Party
with the terms of this Conservation Easement. In such action, the non-violating Party
and/or third party beneficiaries may:
(1) Recover any damages to which they may be entitled for
violation by the violating Party of the terms of this Conservation Easement or for any
injury to the Conservation Values of the Easement Area. The non-violating Party shall
first apply any damages recovered to the cost of undertaking any corrective action on
the Easement Area. Prior to implementation of any remedial or restorative actions
pursuant to this paragraph, ACOE shall be consulted.
(2) Enjoin the violation by temporary or permanent injunction
without the necessity of proving either actual damages or the inadequacy of otherwise
available legal remedies.
(3) Obtain other equitable relief, including, but not limited to, the
restoration of the Easement Area to the condition in which it existed prior to any such
violation or injury. This remedy is expressly available notwithstanding the ability to
claim damages as provided for in subdivision (1).
(e) Notice of Dispute.
(1) If the violating Party provides the non-violating Party and/or
third party beneficiaries with a Notice of Dispute, as provided herein, the non-violating
Party and/or third party beneficiaries shall meet and confer with the violating Party at a
mutually agreeable place and time, not to exceed thirty (30) days from the date that the
non-violating Party and/or third party beneficiaries receive the Notice of Dispute. The
non-violating Party and/or third party beneficiaries shall consider all relevant information
concerning the disputed violation provided by the violating Party and shall determine
whether a violation has in fact occurred and, if so, whether the Notice of Violation and
demand for cure issued by the non-violating Party and/or third party beneficiaries is
appropriate in light of the violation.
(2) If, after reviewing the violating Party's Notice of Dispute,
conferring with the violating Party, and considering all relevant information related to the
violation, the non-violating Party and/or third party beneficiaries determine that a
violation has occurred, the non-violating Party and/or third party beneficiaries shall give
the violating party notice of such determination in writing. Upon receipt of such
determination, the violating Party shall have fifteen (15) days to cure the violation. If
said cure reasonably requires more than fifteen (15) days, the violating Party shall,
within the fifteen (15) day period, submit to the non-violating Party and/or third party
beneficiaries for review and approval a plan and time schedule to diligently complete a
10
cure. The violating Party shall complete such cure in accordance with the approved
plan.
(f) Conflicting Notices of Violation.
(1) If any Party receives a Notice of Violation that is in material
conflict with one or more prior written Notices of Violation that have not yet been cured
by the Party (hereinafter "Active Notice(s) of Violation") such that the conflict makes it
impossible for the Party to carry out the cure consistent with all prior Active Notices of
Violation, the Party shall give written notice (hereinafter "Notice of Conflict") to the
non-violating Party and/or third party beneficiaries issuing the later, conflicting Notice(s)
of Violation. The Party shall issue said Notice of Conflict to the appropriate non-
violating Party and/or third party beneficiaries within fifteen (15) days of the receipt of
each such conflicting Notice of Violation. A valid Notice of Conflict shall describe the
conflict with specificity, including a description of how the conflict makes com
pliance
with all Active Notices of Violation impossible.
(2) Upon issuing a valid Notice of Conflict to the appropriate
non-violating Party and/or third party beneficiaries, as described above, the violating
Party shall not be required to carry out the cure described in the conflicting Notice or
Notices of Violation until such time as the non-violating Party responsible for said
conflicting Notice(s) of Violation issue(s) a revised Notice of Violation that is consistent
with prior Active Notices of Violation. Upon receipt of a revised, consistent Notice of
Violation, the violating Party shall carry out the cure recommended in such notice within
the time period(s) described in Section 7(c) above. Notwithstanding Section 7(g),
failure to cure within said time period(s) shall entitle the non-violating Party to the
remedies described in Section 7(d) and Section 7(h).
(3) The failure of the violating Party to issue a valid Notice of
Conflict within fifteen (15) days of receipt of a conflicting Notice of Violation shall result
in a waiver of the violating Party's ability to claim a conflict.
(g) Immediate Action. In the event that circumstances require
immediate action to prevent or mitigate significant damage to the Conservation Values
of the Easement Area, the Party and/or third party beneficiary seeking enforcement
pursuant to Section 7(b) above may immediately pursue all available remedies,
including injunctive relief, available pursuant to both this Conservation Easement and
state and federal law after giving the violating Party at least twenty four (24) hours'
written notice before pursuing such remedies. So long as such twenty-four (24) hours'
notice is given, the non-violating Party may immediately pursue all available remedies
without waiting for the expiration of the time periods provided for cure or Notice of
Dispute as described in Section 7(c). The written notice pursuant to this paragraph may
be transmitted to the violating Party by facsimile and shall be copied to the other Party
and/or third party beneficiaries listed in Section 14 of this Conservation Easement. The
rights of the non-violating Party and/or third party beneficiaries under this paragraph
11
apply equally to actual or threatened violations of the terms of this Conservation
Easement. The violating Party agrees that the remedies at law for any violation of the
terms of this Conservation Easement are inadequate and that the non-violating Party
and third party beneficiaries shall be entitled to the injunctive relief described in this
section, both prohibitive and mandatory, in addition to such other relief to which they
may be entitled, including specific performance of the terms of this Conservation
Easement, without the necessity of proving either actual damages or the inadequacy of
otherwise available legal remedies. The remedies described in this Section 7(a) shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in
equity, including but not limited to, the remedies set forth in Civil Code Section 815, et
seq., inclusive.
(h) Costs of Enforcement. Any costs incurred by a Party in enforcing
the terms of this Conservation Easement against another Party, including, but not
limited to, costs of suit and attorneys' fees, and any costs of restoration necessitated by
a Party's violation or negligence under the terms of this Conservation Easement shall
be borne by the violating Party.
(i) Enforcement Discretion. Enforcement of the terms of this
Conservation Easement by a Party and/or third party beneficiary shall be at the
discretion of the Party and/or third party beneficiary, and any forbearance by such Party
and/or third party beneficiary to exercise its rights under this Conservation Easement in
the event of any breach of any term of the Conservation Easement by a Party or any
subsequent transferee shall not be deemed or construed to be a waiver by the non-
violating Party and third party beneficiary of such terms or of any subsequent breach of
the same or any other term of this Conservation Easement or of any of the rights of the
non-violating Party and third party beneficiary under this Conservation Easement. No
delay or omission by the non-violating Party and/or third party beneficiaries in the
exercise of any right or remedy upon any breach by the violating Party shall impair such
right or remedy or be construed as a waiver. Further, nothing in this Conservation
Easement creates a non-discretionary duty upon the non-violating Party and/or third
party beneficiaries to enforce its provisions, nor shall deviation from these terms and
procedures, or failure to enforce its provisions give rise to a private right of action
against the non-violating Party and/or third party beneficiaries by any third parties.
Q) Acts Beyond Grantor's Control. Nothing contained in this
Conservation Easement shall be construed to entitle Grantee, its successors or assigns
to bring any action against Grantor, its successors or assigns for any injury to or change
in the Easement Area resulting from:
(1) Any natural cause beyond Grantor's control, including
without limitation, fire not caused by Grantor, flood, storm, and earth movement;
(2) Any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to the Easement Area
12
resulting from such causes; provided that once the emergency has abated, Grantor, its
successors or assigns promptly take all reasonable and necessary actions required to
restore the Easement Area to the condition it was in immediately prior to the
emergency;
(3) Acts by Grantee, ACOE, or their employees, directors,
officers, agents, contractors, or representatives; or
(4) Acts of third parties (including any governmental agencies)
that are beyond Grantor's control.
Notwithstanding the foregoing, Grantor must obtain any applicable governmental
permits and approvals for any emergency activity or use permitted by this Conservation
Easement, and undertake any activity or use in accordance with all applicable federal,
state, local and administrative agency statutes, ordinances, rules, regulations, orders or
requirements.
(k) Acts Beyond Grantee's Control. Nothing contained in this
Conservation Easement shall be construed to entitle Grantor, its successors or assigns
to bring any action against Grantee, its successors or assigns for any injury to or
change in the Easement Area resulting from:
(1) Any natural cause beyond Grantee's control, including
without limitation, fire not caused by Grantee, flood, storm, and earth movement;
(2) Any prudent action taken by Grantee under emergency
conditions to prevent, abate, or mitigate significant injury to the Easement Area
resulting from such causes, provided that once the emergency has abated, Grantee, its
successors or assigns promptly take all reasonable and necessary actions required to
restore the Easement Area to the condition it was in immediately prior to the
emergency;
(3) Acts by Grantor, ACOE or their employees, directors,
officers, agents, contractors, or representatives; or
(4) Acts of third parties (including any governmental agencies)
that are beyond Grantee's control.
Notwithstanding the foregoing, Grantee must obtain any applicable governmental
permits and approvals for any emergency activity or use permitted by this Conservation
Easement, and undertake any activity or use in accordance with all applicable federal,
state, local and administrative agency statutes, ordinances, rules, regulations, orders or
requirements.
13
8. Access. This Conservation Easement does not convey a general right of
access to the public or a general right of access to the Easement Area.
9. Costs and Liabilities.
(a) Grantor, its successors and assigns retain all responsibilities and shall
bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and
maintenance (except Long-Term Maintenance pursuant to Section 16) of the Property.
Grantor agrees Grantee and ACOE shall not have any duty or responsibility for the
operation, upkeep, or maintenance (except Long-Term Maintenance pursuant to
Section 16) of the Property, the monitoring of hazardous conditions thereon, or the
protection of Grantor, the public or any third parties from risks relating to conditions on
the Property. Grantor, its successor or assign remains solely responsible for obtaining
any applicable governmental permits and approvals for any activity or use permitted by
this Conservation Easement, and any activity or use shall be undertaken in accordance
with all applicable federal, state, local and administrative agency statutes, ordinances,
rules, regulations, orders and requirements.
(b) Hold Harmless.
(1) Grantor, its successors and assigns shall hold harmless, protect,
defend and indemnify ACOE and their respective directors, officers, employees, agents,
contractors, and representatives and the heirs, personal representatives, successors
and assigns of each of them ("ACOE Indemnified Party" and collectively, "ACOE
Indemnified Parties") from and against any and all liabilities, penalties, costs, losses,
damages, expenses (including, without limitation reasonable attorneys' fees and
experts' fees), causes of action, claims, demands, orders, liens or judgments (each a
"Claim" and, collectively, "Claims"), arising from or in any way connected with: injury to
or the death of any person, or physical damage to any property, resulting from any act,
omission, condition, or other matter related to or occurring on or about the Easement
Area, regardless of cause unless caused by the negligence or willful misconduct of any
of the ACOE Indemnified Parties.
(2) Grantor, and its successors and assigns shall hold harmless,
protect, defend and indemnify Grantee and its respective directors, officers, employees,
agents, contractors, and representatives and the heirs, personal representatives,
successors and assigns of each of them ("Grantee Indemnified Party" and collectively
"Grantee Indemnified Parties") from and against any and all Claims which are in
contravention of this Conservation Easement, arising from or in any way connected
with: injury to or the death of any person, or physical damage to any property, resulting
from any act, omission, condition, or other matter related to or occurring on or about the
Easement Area regardless of cause unless caused by the negligence or willful
misconduct of any of the Grantee Indemnified Parties.
10. Taxes, No Liens. Grantor and its successors and assigns shall pay
before delinquency all taxes, assessments, fees, and charges of whatever description
levied on or assessed against the Property by competent authority, including any taxes
14
imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish
Grantee and ACOE with satisfactory evidence of payment, if assessed, upon request.
Grantor, Grantee, and their successors and assigns shall keep the Easement Area free
from any liens. Should either Grantor's work or Grantee's work in or upon the
Easement Area result in a lien on the Easement Area Grantor or Grantee, as the case
may be, shall take all steps required to have said lien removed from the Easement
Area.
11. Condemnation. If the Easement Area is taken, in whole or in part, by
exercise of the power of eminent domain, Grantor and Grantee shall be entitled to
compensation in accordance with applicable law.
12. Subsequent Transfers.
(a) By Grantee.
(1) This Conservation Easement is transferable by Grantee, but
Grantee may assign its rights and delegate obligations under this Conservation
Easement only to an entity or organization authorized to acquire and hold conservation
easements pursuant to Civil Code Section 815.3 and Government Code Section 65966
(or any successor provision(s) then applicable) and only with the prior written approval
of Grantor and ACOE; and
(2) Grantee shall record the assignment in the County of
Riverside; and
(3) Unless otherwise agreed by Grantor, Grantee and ALOE,
along with such transfer of this Conservation Easement, Grantee shall transfer any
special assessment district funds collected for the management, maintenance and
monitoring of this Conservation Easement, after deducting reasonable costs of transfer
and the cost of satisfying all outstanding contracts and obligations.
(b) By Grantor.
(1) The covenants, conditions, and restrictions contained in this
Conservation Easement are intended to and shall run with the land and bind all future
owners of any interest in the Easement Area. Grantor, its successor or assign agrees
to (i) incorporate by reference to the title of and the recording information for this
Conservation Easement in any deed or other legal instrument by which each divests
itself of any interest in all or a portion of the Easement Area, including, without
limitation, a leasehold interest and (ii) give actual notice to any such transferee or
lessee of the existence of this Conservation Easement. Grantor, its successor and
assign agrees to give written notice to Grantee and ACOE of the intent to transfer any
15
interest at least sixty (60) days prior to the date of such transfer. The failure of Grantor,
its successor or assign to perform any act provided in this Section 12 shall not impair
the validity of this Conservation Easement or limit its enforceability in any way, and
Grantor, its successors or assigns assume any liability relating to transfer(s) or
assignment(s) to bona fide purchasers without notice of the existence or terms of this
Conservation Easement.
(2) From and after the date of any transfer of all or any portion
of the Easement Area by Grantor and each transfer thereafter, (i) the transferee shall
be deemed to have assumed all of the obligations of Grantor as to the portion
transferred, as set forth in this Conservation Easement, (ii) the transferee shall be
deemed to have accepted the restrictions contained herein as to the portion transferred,
(iii) the transferor, as applicable, shall have no further obligations hereunder except for
any obligations pursuant to Section 20(a), and (iv) all references to Grantor in this
Conservation Easement shall thereafter be deemed to refer to such transferee.
13. Additional Interests. Grantor, its successors and assigns shall not grant
additional easements or other interests in the surface or subsurface of the Easement
Area (other than a security interest that is subordinate to this Conservation Easement)
without the prior written authorization of Grantee and ACOE. It shall be reasonable for
Grantee and ACOE to withhold consent for the grant of additional easements or other
interest in the Easement Area that are in direct or potential conflict with the Agency
Approval and the preservation of the Purpose and the Natural Condition of the
Easement Area as defined in Section 1 of this Conservation Easement or will impair or
otherwise interfere with the Conservation Values of the Easement Area. Grantor or its
successors and assigns shall record any additional easements or other interests in the
Easement Area approved by Grantee and ACOE, in the official records of Riverside
County, California and shall provide a copy of the recorded document to Grantee and
ACOE.
14. Notices. All notices, demands, requests, consents, approvals, or
communications from one party to another shall be personally delivered or sent by
facsimile to the persons set forth below or shall be deemed given five (5) days after
deposit in the United States mail, certified and postage prepaid, return receipt
requested, and addressed as follows, or at such other address as any Party may from
time to time specify to the other parties in writing:
To Grantor: Zeiders Road Business Park, Inc.
c/o Peter G. Aylward
Strategic Property Advisers, Inc.
3250 Vista Diego Road
Jamul, CA 91935-2014
To Grantee: City of Menifee
29714 Haun Road
Menifee, CA 92586
16
FAX: 951-679-3843
With a copy to: District Counsel
U.S. Army Corps of Engineers
Los Angeles District
915 Wilshire Boulevard, Room 1535
Los Angeles, CA 90017-3401
FAX: 213-452-4217
15. Amendment. Grantor and Grantee may amend this Conservation
Easement only by mutual written agreement and with the written consent of ACOE. Any
such amendment shall be consistent with the Purpose of this Conservation Easement
and shall not affect its perpetual duration. Grantor shall record any amendments to this
Conservation Easement approved by the Grantee and ACOE in the official records of
Riverside County, California and shall provide a copy of the recorded document to the
Grantee and ACOE.
16. Long-Term Maintenance.
(a) Grantee's Responsibilities for Maintenance and Management.
Grantee, its successors and assigns shall be responsible for in-perpetuity, ongoing,
long-term maintenance and management of the Easement Area. Such long-term
maintenance and management shall consist of the following activities: (1) annual
removal of trash or man-made debris and (2) annual maintenance of signage and other
notification features installed pursuant to Section 5(c).
(b) Restoration Responsibilities. Grantor, Grantee, their successors
and assigns shall each individually be obligated to repair, remediate, or restore the
Easement Area damaged by any activities prohibited by Section 3 herein for which it is
responsible.
(c) Annual Reporting. Grantee, its successors and assigns shall
prepare an annual monitoring and maintenance report documenting activities
performed under Section 16(a) above, and shall make such report available to the
Grantor and ACOE upon request.
(d) Grantor Restoration. When activities are performed pursuant to
Section 16(b) for which Grantor is responsible, Grantee, its successors and assigns,
shall retain, at Grantor's expense, a qualified Biological Monitor to prepare a
Restoration Plan and to oversee/monitor such restoration activities. Grantee shall have
its Biological Monitor submit a draft Restoration Plan to Grantor and ACOE for review
and for the ACOE written approval prior to its implementation. Upon completion of
restoration as specified in the approved Restoration Plan, Grantee shall have a
Biological Monitor prepare a detailed monitoring report, and Grantee shall make the
report available to Grantor and ACOE within thirty (30) days of completion of restoration
17
activities. Grantee, its successors or assigns and Biological Monitor shall sign the
monitoring report, and the report shall document the Biological Monitor's name and
affiliation, dates Biological Monitor was present on-site, activities observed and their
location, Biological Monitor's observations regarding the adequacy of restoration
performance by the Grantee, its successors or assigns, or its contractor in accordance
with the approved Restoration Plan, corrections recommended and implemented.
Grantor shall be responsible for compensating and/or reimbursing Biological Monitor
and Grantee for all reasonable and ordinary expenses incurred by them in discharging
their respective responsibilities under this subsection within thirty (30) days of invoice.
(e) Grantee Restoration. When activities are performed pursuant to
Section 16(b) for which Grantee is responsible, Grantee shall retain, at Grantee's
expense, a qualified Biological Monitor to prepare a Restoration Plan and to
oversee/monitor such restoration activities. Grantee shall have a Biological Monitor
submit a draft Restoration Plan to ACOE for review and written approval prior to its
implementation. Upon completion of restoration as specified in the approved
Restoration Plan, Grantee shall have a Biological Monitor prepare a detailed monitoring
report, and Grantee shall make the report available to ACOE within thirty (30) days of
completion of restoration activities. Grantee, its successors or assigns and Biological
Monitor shall sign the monitoring report, and the report shall document the Biological
Monitor's name and affiliation, dates Biological Monitor was present on-site, activities
observed and their location, Biological Monitor's observations regarding the adequacy
of restoration performance by the Grantee, its successors or assigns, or its contractor in
accordance with the approved Restoration Plan, corrections recommended and
implemented.
17. Annexation into Special Assessment District. Grantor shall petition to
have the Easement Area included as a new zone to be annexed into Landscape and
Lighting Maintenance District ("L&LMD") No. 89-1-Consolidated in the County of
Riverside, California, and shall approve the levy of assessments thereunder such that
upon Final Approval, funds from the collection of assessments on the Property are
available for the perpetual management, maintenance, and monitoring of the Easement
Area as required under this Conservation Easement.
18. Recordation. Grantee shall promptly record this instrument in the official
records of Riverside County, California and immediately notify the Grantor and ACOE
through the mailing of a conformed copy of the recorded easement.
19. Estoppel Certificate. Upon request, Grantee shall within fifteen (15) days
execute and deliver to Grantor, its successors and assigns any document, including an
estoppel certificate, which certifies compliance with any obligation of Grantor, its
successors and assigns contained in this Conservation Easement and otherwise
evidences the status of this Conservation Easement as may be requested by Grantor,
its successors and assigns.
18
20. General Provisions.
(a) Controlling Law. The laws of the United States and the State of
California, disregarding the conflicts of law principles of such state, shall govern the
interpretation and performance of this Conservation Easement.
(b) Liberal Construction. Any general rule of construction to the
contrary notwithstanding, this Conservation Easement shall be liberally construed in
favor of and to effect the Purpose of this Conservation Easement and the policy and
purpose set forth in California Civil Code Section 815, et seq. If any provision in this
instrument is found to be ambiguous, an interpretation consistent with the Purpose of
this Conservation Easement that would render the provision valid shall be favored over
any interpretation that would render it invalid.
(c) Severability. If a court of competent jurisdiction voids or invalidates
on its face any provision of this Conservation Easement, such action shall not affect the
remainder of this Conservation Easement. If a court of competent jurisdiction voids or
invalidates the application of any provision of this Conservation Easement to a person
or circumstance, such action shall not affect the application of the provision to other
persons or circumstances.
(d) Entire Agreement. This instrument together with the attached
exhibits and any documents referred to herein sets forth the entire agreement of the
parties with respect to the Conservation Easement and supersedes all prior
discussions, negotiations, understandings, or agreements relating to the Conservation
Easement. No alteration or variation of this instrument shall be valid or binding unless
contained in an amendment in accordance with Section 15.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
(f) Successors and Assigns The covenants, terms, conditions, and
restrictions of this Conservation Easement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective personal representatives, heirs,
successors, and assigns and shall constitute a servitude running in perpetuity with the
Easement Area. The covenants hereunder benefiting Grantee shall also benefit ACOE
as a third party beneficiary.
(g) Termination of Rights and Obligations. Provided the transfer was
consistent with the terms of this Conservation Easement, a party's rights and
obligations under this Conservation Easement shall terminate upon transfer of the
party's interest in the Conservation Easement or Easement Area (respectively), except
that liability for acts or omissions occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted
19
solely for convenience of reference and are not a part of this instrument and shall have
no effect upon its construction or interpretation.
(i) Counterparts. The parties may execute this instrument in two or
more counterparts, which shall, in the aggregate, be signed by all parties; each
counterpart shall be deemed an original instrument as against any party who has
signed it. In the event of any disparity between the counterparts produced, the
recorded counterpart shall be controlling.
Q) Exhibits. All Exhibits referred to in this Conservation Easement are
attached and incorporated herein by reference.
(k) No Hazardous Materials Liability.
(1) Grantor represents it is unaware of any release or threatened release
of Hazardous Materials (defined below) or underground storage tanks existing,
generated, treated, stored, used, released, disposed of, deposited or abandoned in, on,
under, or from the Property, or transported to or from or affecting the Property.
(2) Without limiting the obligations of Grantor herein, Grantor hereby
releases and agrees to indemnify, protect, defend and hold harmless the Grantee
Indemnified Parties and the ACOE Indemnified Parties (defined in Section 9(c)(1) and
9 c 2 ) against any and all Claims (defined in Section 9(c)(1)) arising from or
connected with any Hazardous Materials present, alleged to be present, or otherwise
associated with the Property at any time, except that this release and indemnification
shall be inapplicable to Grantee Indemnified Parties and to ACOE Indemnified Parties
with respect to any Hazardous Materials placed, disposed or released by Grantee
Indemnified Parties or ACOE Indemnified Parties. This release and indemnification
includes, without limitation, Claims for (i) injury to or death of any person or physical
damage to any property; and (ii) the Grantor's violation or alleged violation of, or other
failure to comply with, any Environmental Laws (defined below).
(3) Despite any contrary provision of this Conservation Easement, the
parties do not intend this Conservation Easement to be, and this Conservation
Easement shall not be, construed such that it creates in or gives Grantee and ACOE
any of the following:
(i) The obligations or liabilities of an "owner" or "operator," as
those terms are defined and used in Environmental Laws (defined below), including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter,
"CERCLA"); or
(ii) The obligations or liabilities of a person described in 42
U.S.C. Section 9607(a)(3) or (4); or
(iii) The obligations of a responsible person under any
20
applicable Environmental Laws; or
(iv) The right to investigate and remediate any Hazardous
Materials associated with the Property unless said investigation or remediation is
related to the investigation or remediation of the Easement Area; or
(v) Any control over Grantor's ability to investigate, remove,
remediate or otherwise clean up any Hazardous Materials associated with the Property
unless said investigation or remediation by Grantor is related to the Easement Area.
The term "Hazardous Materials" includes, without limitation, (a) material that is
flammable, explosive or radioactive; (b) petroleum products, including by-products and
fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic
substances, or related materials defined in CERCLA; Resource Conservation and
Recovery Act (42 U.S.C. 6901 et seq.); the Hazardous Materials Transportation Act (49
U.S.C. Section 5101 et seq.); the Hazardous Waste Control Law (California Health &
Safety Code Section 25100 et seq.); the Hazardous Substance Account Act (California
Health & Safety Code Section 25300 et seq.), and in the regulations adopted and
publications promulgated pursuant to them, or any other applicable federal, state or
local laws, ordinances, rules, regulations or orders now in effect or enacted after the
date of this Conservation Easement.
The term "Environmental Laws" includes, without limitation, any federal, state,
local or administrative agency statute, ordinance, rule, regulation, order or requirement
relating to pollution, protection of human health or safety, the environment or
Hazardous Materials. Grantor and Grantee represents, warrants and covenants to
each other and to ACOE that Grantor and Grantee's activities upon and use of the
Easement Area will comply with all Environmental Laws.
(1) Extinguishment. If circumstances arise in the future that render the
Purpose of this Conservation Easement impossible to accomplish, this Conservation
Easement can only be terminated or extinguished, in whole or in part, by judicial
proceedings in a court of competent jurisdiction.
(m) Warranty. Grantor represents and warrants that there are no
outstanding mortgages, liens, deeds of trust, encumbrances or other interests in the
Easement Area (including, without limitation, mineral interests) which have not been
expressly subordinated to this Conservation Easement, and that the Easement Area is
not subject to any other conservation easement.
(n) No Merger. Grantor and Grantee agree that should Grantee, or
any successor in interest to Grantee, come to own all or a portion of the fee interest
subject to this Conservation Easement, there shall be no express or implied merger by
operation of law or otherwise. If any party should claim such a merger, the parties
agree that any and all terms and conditions of this Conservation Easement shall be
deemed covenants and restrictions upon the Easement Area, which, shall run with the
21
land according to California and/or other applicable law and otherwise exist in
perpetuity.
[REMAINDER LEFT INTENTIONALLY BLANK]
22
IN WITNESS WHEREOF Grantor and Grantee have executed this Conservation
Easement the day and year first above written and have agreed to be bound by the
terms and provisions hereof.
GRANTOR:
Zeiders Road Business Park, Inc.
By:
Ronald A. Schoen
Chief Financial Officer and Secretary
By: Strategic Property Advisers, Inc.,
a California corporation
Its Authorized Adviser and Agent
By:
Peter G. Aylward, President
CERTIFICATE OF ACCEPTANCE
This is to certify that the Conservation Easement by Zeiders Road Business
Park, Inc., a California corporation, dated _ 2013, to the City of
Menifee, is accepted by the undersigned officers on behalf of Grantee.
GRANTEE:
By:
Name:
Title:
Date:
Attest:
By:
Name:
Title:
Date:
23
State of California }
County of Riverside}
On before me,
Date Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Place Notary Seal Above Signature of Notary Public
24
State of California }
County of Riverside}
On before me,
Date Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Place Notary Seal Above Signature of Notary Public
25
State of California }
County of Riverside}
On before me,
Date Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Place Notary Seal Above Signature of Notary Public
26
Exhibit A
Legal Description of Property
[See Attached]
27
Exhibit B
Legal Description of Easement Area
[See Attached]
28
Exhibit C
Depiction of Easement Area
[See Attached]
29
Exhibit D
Mitigation Plan
[See Attached]
30
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Exhibit E
Title Report
[See Attached]
31
Exhibits F-1 and F-2
Current Natural Condition of the Easement Area
[See Attached]
32
Exhibit H
Form of Assignment and Assumption Agreement
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
This Assignment and Assumption of Development Agreement(this
"Assignment") is executed by , a ("Owner"), in favor
of a ("Assignee") as of the day of , 20, with
reference to the following facts:
A. Owner and the City of Menifee, California, a municipal corporation organized
and existing under the laws of the State of California, have entered into that certain Development
Agreement Regarding the Commerce Pointe Project, dated as of , 2013, recorded
as Document No. in Official Records, County of Riverside, California
the "Development Agreement;" and
B. Owner now desires to assign and transfer to Assignee, and Assignee desires to
accept from Owner all of Owner's rights and obligations in, tinder and to the Development
Agreement with respect to (but only with respect to) the real property described on Exhibit A
attached hereto (the Transferred Property").
THEREFORE, Owner and Assignee agree as follows:
1. Assignment. Owner hereby assigns and transfers to Assignee all of
Owner's rights in, under and to the Development Agreement and all of Owner's obligations
arising under the Development Agreement with respect to (but only with respect to)the
Transferred Property from and after the date hereof.
2. Acceptance and Assumption. Assignee hereby accepts from Owner all
of Owner's rights in, under and to the Development Agreement and agrees to assume all of
Owner's obligations arising under the Development Agreement with respect to (but only with
respect to) the Transferred Property from and after the date hereof.
3. Further Assurances. Each party hereto hereby agrees to execute any
additional documents, and take any further actions necessary to effect or evidence the assignment
and assumption set forth in Sections 1 and 2 above.
4. Notices: For purposes of the Development Agreement, any notice to
Assignee shall be given to the following mailing address:
5. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute one and the same
instrument.
6. Miscellaneous. This Assignment shall be binding on and inure to the
benefit of the parties and their respective successors and assigns. The paragraph headings of this
Assignment are for convenient reference only and shall not be used in interpreting this
Assignment.
7. California Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of California.
8. Costs of Dispute Resolution. In the event of any action or proceeding
brought by any party against any other parties under this Agreement, the prevailing parties shall
be entitled to recover from the non-prevailing parties all costs and expenses, including attorneys'
and experts' fees and expenses, in such action and proceeding in such amount as the court may
adjudge reasonable. The prevailing parties shall be determined by the court based upon an
assessment of which party's major arguments made or positions taken in the proceedings could
fairly be said to have prevailed over the other parties' major arguments or positions on major
disputed issues.
IN WITNESS WHEREOF, Owner and Assignee have executed this Assignment as of the
date and year first above written.
OWNER:
ASSIGNEE:
[SIGNATURES TO BE NOTARIZED]