2017/06/07 Agreement Cimarron Ridge, LLC - Plan ProjectRECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF MENIFEE
29714 Hatm Road
MeniFee, CA 92586
Attn: City Attorney
2017-0242173
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RecoNed £or the benefit of the Ciry ofMmif (Space Above TftSs Line is Far
and exempt Rom recording Res pursuant to Recorder's Use Only)
Government Section 20383
DEVELOPMENT AGREEMENT
by and between
CITY OF MENIFEE
and
CIIVIARRON RIDGE, LLC
REGARDING THE CINLARRON RIDGE SPECIFIC PLAN PROTECT
Effective Date:
StAl1Q. � , 201'7
3354637.v20
TABLE OF CONTENTS
Paee
ARTICLE1. DEFINITIONS....................................................................................................... 3
ARTICLE
2. EFFECTIVE DATE, TERM 8c REPRESENTATIONS AND WARRANTIES
...............................................................................................................................
8
2.1
Effective Dato..................................................................................................................
8
22
Term.................................................................................................................................
8
2.3
Developer's Representations and Warranties...................................................................
9
2.4
Provisions Required by Statute................................................................................... .....
9
ARTICLE 3_ PUBLIC BENEFITS...........................................................................................
10
3.1
Public Benefits...............................................................................................................
I O
ARTICLE 4. DEVELOPMENT OF THE PROJECT/PROPERTY
11
...................__...._........_.
4.1
Applicable City Regulations; Developer's Vested Rights .............................................
11
4.2
Density and Intensity of Development..........................................................................
12
43
No Conflicting Enactments............................................................................................
12
4.4
Tentative Subdivision Maps..........................................................................................
12
4.5
Development Impact Fees, Exactions, and Processing Fees To Be Paid When Due ....
12
4.6
Development Impact Fees("DIF"j................................................................................
13
4.7
Federal/State Compliance Fees......................................................................................
13
4.8
Non -Local Agency Compliance Fees............................................................................
1 3
4.1 1
Copiers of Applicable City Regulations..........................................................................
14
4.13
New City Laws; Reservations of Authority...................................................................
14
4.14
Developer's Contest of Applicability of New City Laws ..............................................
14
4.1 5
Regulation by Other Public Agencies............................................................................
15
4.1 6
Insurance Requirements.................................................................................................
16
4.17
Developer Park Improvement Credits................._..................._.........................._.........
16
ARTICLE5. LI"lILITIES...........................................................................................................
18
5.1
Project Improvements....................................................................................................
18
5.2
Acceptance of Public Improvements and Certificate of Satisfaction ............................
19
5.3
Infrastructure Easements and Rights of Way................................_..........................._.._
19
3354837.v20
ARTICLE 6. AMENDMENTS 8c SUBSEQUENT PROJECT APPROVALS ..................... 20
6.1
Amendment....................................................................................................................
20
6.2
Modifications Delegated to the City Manager...............................................................
20
63
City Processing of Subsequent Project Approvals...................._...................................
20
6.4
CEQA.............................................................................................................................
2 1
ARTICLE 7. DISPUTES, DEFAULT, REMEDIES
21
...............................................................
7.1
Defa.ult............................................................................................................................
21
7.2
Annual Review...............................................................................................................
23
7.3
Legal Actions.................................................................................................................
24
7.4
Indetnni{iication..............................................................................................................
24
7.5
Dispute Resolution.........................................................................................................
25
7.6
Termination of Agreement.............................................................................................
26
ARTICLE
8. ASSIGNMENTS..................................................................................................
26
8.1
Subsequent Development Agreements..........................................................................
26
8.2
Assignrnent....................................................................................................................
26
8.4
Assignment to Master Property Owners' Association...................................................
27
8.5
Assignment to Financial Institutions ........................ ...............................................
...... 27
8.6
Assumption of Assigned Obligations; Release of Assignor ..........................................
27
8.7
Successive Assignnient..................................................................................................
28
8.8
Excluded Transfers........................................................................................................
28
ARTICLE 9. GENERAL PROVISIONS..................................................................................
28
9.1
Compliance With Laws..................................................................................................
28
92
Mortgagee Protection.....................................................................................................
28
9.3
Amendments to Agreement...........................................................................................
29
9.4
Covenants Bindirag on Successors and Assigns and Run with Land .............................
30
9.5
Notice.............................................................................................................................
30
9.6
Counterparts...................................................................................................................
3 1
9.7
Waivers..........................................................................................................................
3 1
9.8
Construction of Agreement............................................................................................
3 1
9.9
Severability....................................................................................................................
3 1
9.1 O
Time...............................................................................................................................
3 1
ii
3354337.v20
9.1 1
Extension of Time Limits..............................................................................................
3 1
9.12
Signatures.......................................................................................................................
3 1
9.13
Entire Agreement............................................................................................................
3 1
9.1 4
Estoppel Certificate........................................................................................................
32
9.1 5
City Approvals and Actions..........................._..............................................................
32
9.1 6
Negation of Partnership.................................................................................................
32
9.1 7
Exhibits..........................................................................................................................
33
iii
3354637.v20
DEVELOPMENT AGREEMENT
Cimarron Ridge SpeciSc Plan Project
This DEVELOPMENT AGREEMENT REGARDING "I'HE CIMARRON RIDGE
SPECIFIC PLAN PROJECT (the "Agreement") is entered into this day of
201Q by and between the CITY OF MENIFEE, a municipal corporation of the State
of California ("City") and CIMARRON RIDGE, LLC, a Cali{ornia limited liability company
("Developer"). City and Developer are collectively referred to herein as the ••Parties'• and
individually as a '•Party" (as defined herein).
RECITALS
A. Authorization. In order to encourage investment in, and commitment to
comprehensive planning and public facilities financing, strengthen the public planning process
and encourage private implementation of the City's General Plan, provide certainty in the
approval of projects and assure ¢fficient use of public resources, and reduce the economic costs
of development by providing assurance that projects can proceed consistent with existing land use
policies, rules and regulations, the California Legislature adopted Governtnent Code Sections
65864-65869.5 ("Development Agreement Statute"). The Development Agreement Statute
authorizes cities and counties to enter into development agreements with persons or entities
having a legal or equitable interest in real property located within their jurisdiction. In accordance
with the Development Agreement Statute, the City has established procedures and requirements
for processing and approval of development agreements pursuant to Municipal Code Section 9.75
("Development Agreement Ordinance"). The Development Agreement Statute and
Development Agreement Ordinance are collectively refeaed to herein as the ••Development
Agreement Law.•' This Agreement is consistent with the Development Agreement Law.
B. Property. Developer is the owner in fee of that certain real property consisting of
approximately two hundred forty and three tenths (240.3) acres of land area located in the City of
Menifee, County of Riverside, State o£ California, more particularly described in the legal
description attached hereto as Exhibit A ("Property").
C_ Prior County Approved Project. Prior to the E$ective Date, the County of
Riverside approved three separate tentative tract maps ("TTMs") for the azea encompassing the
Property. TTM No. 25316 for 369 lots on 102 acres was approved Apri128, 1992; TTM
No. 25745 for 428 lots on 118 acres was approved December 14, 1993; and TTM No. 30552 for
38 lots on 20.3 acres was approved May 4, 2004. The total number of lots previously approved
by the County was 835 lots on 240.3 acres. Each of the TTMs expired. The Property was
previously zoned Residential 2.1-5 du/acre. The City has given the required notice of its intention
to adopt this Agreement and has conducted public heazings thereon pursuant to the Development
Agreement Law. As required by Government Code section 65867.5, the City Council has
reviewed this Agreement and has found that its provisions and purposes are consistent with the
goals, policies, standards, and land use designations specified in the City General Plan and the
Property as of this date.
335483T.v20
D_ Project ApprovaLs/Development Plan. The Planning and Zoning approvals for
the Project on the Property obtained prior to the Approval Date of this Agreement (collectively,
the "Project Approvals") include but are not Limited to the following:
1. Cimarron Ridge Specific Plan (No. 2013-247). Establishes a specific land use plan,
designation of planning areas, development standards, architectural design guidelines
and landscape design guidelines for development ofa maximum of 756 dwelling units,
with seven (7) Planning Areas, 10.835 acres of park, and additional features and
amenities on the Property, adopted by City Council of the City of Menifee ("City
Council") on November 4, 2015 and provides the required contents o£a Development
Plan in compliance with Government Code section 65865.2.
2. General Plan Amendment (No. 2014-006). Changes the General Plan Land Use
designation for the Property from 2.1-5 du/ac Residential to Specific Plan, adopted by
City Council on November 4, 2015.
3. Change of Zone (No. 2014-007). Changes the zoning classification on the Property
from a mix o£One-Family Dwellings (R-1 ), One -Family Dwellings-30,000 squaze foot
lot minimum (R-1-10,000) and Open Area Combining Zone -Residential Developments
(R-5) to Specific Plan (SP) to reflect the adopted Specific Plan and its allowed uses and
development standards, adopted by City Council on November 4, 2015.
4. Tentative Tract Map (No. 2013-208). Proposes a subdivision of the Property's 240.3
gross acres into 756 single-family residerttia] lots and 111 lots for park, landscape,
monumentation, drainage, and storm drain purposes, including one 10.O acre park, one
0.64 acre park, and one O.195 acre park ("Parks") with single-family residential lots
with minimum lot sizes (depending on Specific Plan Planning Area) of 5,000 square
feet, 5,500 square feet, 6,500 square feet, and 10,000 square feet distributed in seven
(7) Pla.,.,+ng Areas, approved by City Council on October 21, 2015.
5. Tentative Parcel Map (No. 2013-209). Proposes a subdivision of the Property's 240.3
gross acres into 7 pazcels with a minimum lot size of26.2 acres for financing purposes,
approved by City Council on October 21, 2015.
Development consistent with all of the Project Approvals is hereinafter referred to as the
"Project."
E. Purpose of Development Agreement. This Agreement is intended to be, and shall
be construed as, a statutory development agreement, within the meaning of the Development
Agreement Law. For the reasons recited herein, Developer and the City have determined that the
Pmject is a development for which a development agreement is appropriate. This Agreement will
eliminate uncertainty in planning for and secure the orderly development of the Project, ensure a
desirable and functional community environment, provide effective and efficient development of
public facilities, infrastructure, and services appropriate for the development of the Project,
provide other significant public benefits to City and the City's residents, and otherwise achieve
the goals and purposes of the Development Agreement Law_ In exchange For these benefits to
KBI•YL•R}�
City, Developer desires to receive the assurance that it may proceed with the development of the
Project in accordance with the terms and conditions of this Agreement.
F. Promotion of Development. The Parties agree that this Agreement will promote
and encourage the implementation of the Specific Plan and the development of the Project by
providing both the Developer, future owners and/or lenders of some or all of th¢ parcels within
the Specific Plan and the City with a greater degree of certainty as to Developer's and/or future
owners' ability to expeditiously complete the Project, and that the consideration to be received by
the City pursuant to this Agreement and the rights secured to Developer hereunder constitute
sufficient consideration to support the respective covenants and agreements of the CiTy and
Developer.
G. Public BeaeStsS Developer and City Commitments. City acknowledges that the
commitments of the City set {orth in this Agreement shall survive beyond the term or terms of the
current members of the City Council and that this Agreement will serve tc bind City and future
CiTy Councils. By approving this Agreement, the City Council has determined that the vested
rights to complete the Project provided to Developer in exchange for Developer's commitment to
provide the public benefits set forth in Section 3 of this Agreement, justify the City's
commitments under this Agreement. The terms and conditions ofthis Agreement have undergone
extensive review by ffie City staff; CiTy Attorney, City of Menifee Economic Development Ad -
Hoc Committee and the City Council and have been found to be fair, just, and reasonable. The
City has further concluded that the Project will serve the best interests of its citizens and that the
public health, safety, and welfare will be served by entering into this Agreement.
H_ Public H¢aringa. On the City's Planning
Commission (the ••Planning Commission"), after duly noticed public hearing, and recommended
approval of this Development Agreement pursuant to Resolution No. On
the City Council introduced its Ordinance No. approving this
Development Agreement and authorizing its execution, and adopted that Ordinance No. on
That Ordinance ("Enacting Ordinance") became effective on
.The Enacting Ordinance incorporates this Agreement by reference.
I. Findings. The City Council has found and determined that this Development
Agreement: (i) is consistent with the CiTy's General Plan and the Specific Plan; (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 Development Agreement Law.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein and other valuable consideration, the Parties hereby agree as follows:
ARTICLE 1. DEFINITIONS
"Agreement•• shall mean this Development Agreement, including all exhibits.
••Annual Revi¢w" shall have the meaning given in Section 7.2.1.
"Applicable City Regulations'• shall mean those regulations set forth in Exhibit B.
335483].v20
••Applicable Law,•• where capitalized, shall mean the Applicable City Regulations, New
City Laws, to the extent consistent with the limitations of Section 4.11 of this Agreement, and
New Other Laws. If the term "applicable law" is not capitalized, it shall refer to not only
Applicable Law, but also to all applicable state and federal law and or regulations.
'•Assignment^ shall have the meaning given in Section 8.2.
"Benefited Owner•• has the meaning set forth in Section 5.1 .2.
"CEQA" shall mean the California Environmental Quality Aar, California Public
Resources Code section 23000, el seq., and the State CEQA Guidelines, (California Code of
Regulations, Title 14, section 1500Q et seq.), as each is amended from time to time.
"City^ shall mean the City of Menifee, a municipal corporation, organized and existing
under the laws of the State of California.
'•City Council•• shall mean the City Council of the City of Menifee.
"City Manager" shall mean the CiTy's City Manager, or his or her designee.
••City Parties" shall have the meaning given in Section 4.14.
•'Claims•• shall have the meaning given in Section 7.4.
•'Connection Fees" means those fees charged by City, or other non -City entities, to utility
users as a cost for connecting to water, sewer and other applicable utilities.
"County shall mean the County of Riverside, apolitical subdivision of the State of
California,
'•Default'• shall have the meaning given in Section 7.1 .2.
"Default Rearing^ shall have the meaning given in Section 7.13.
"D¢veloper•• shall mean Cimarron Ridge, LLC, a California limited liability company,
and any duly authorized successor or assignee to the rights, powers, and responsibilities provided
hereunder, in accordance with Article 8 of this Agreement.
••Development Agreement•' shall mean this Agreement and all exhibits attached hereto.
••Development Agreement Law•• shall have the meaning given in Recital A.
"Development Agreement Ordinance•• shall have the meaning given in Recital A.
'•Development Agreement Statute'• shall have the meaning given in Recital A.
••Development Project•• shall mean a development project consistent with all of the
Project Approvals set forth in Recital D herein and consistent wish the requirements of
Government Code section 65865:2_ -
4
3354837.v20
••District^ shall mean any assessment or financing districts) established by the City
pursuant to the Community Facilities District Act of 1982 (Mello -Roos), Government Code
sections 5331 I et seq. or other similaz law to finance all of part ofthe Public Improvements through
the issuance of bonds and the imposition of assessments, £ees or taxes on the benefiting land,
including but not limited to, the Property.
••Effectiv¢ Date'• shall have the meaning set forth in Section 2.1.
•'ELR•• shall mean the Environmental Impact Report (State Clearinghouse No.
2014051029) certified by the Menifee City Council on October 21, 2015.
••Enacting Ordinance•• shall mean the Ordinance approving this Agreement as referenced
in Recital I.
••Exactions'• shall mean exactions that may be imposed by the City as a condition of
developing the Project, including but not limited to in -lieu payments, requirements for acquisition,
dedication or reservation of land, obligations to construct on -site or of£ -site public and private
infrastructure improvements such as roadways, utilities or other improvements necessary to
support the Project as shown in the Specific Plan, whether such exactions constitute subdivision
improvements, mitigaflon measures in connection with environmental review of the Project,
measures imposed for the protection of the public health or safety, or impositions made under
Applicable Law.
"Ezcluded Transfers'• shall have the meaning set forth in Section 8.8.
"Ezcused Delay" shall mean delay due to war; insurrection; terrorism; strikes; lockouts
riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; Height embargoes; unusually severe weather which prevents, limits,
retards or hinders the ability to perform; environmental conditions, if such condition is unknown
after the exercise of reasonable environmental due diligence and delays are due to necessary
regulatory agency approvals; initiatives, referenda, litigation or administrative proceedings
challenging the Existing Approvals, Subsequent Project Approvals, the Project or this Agreement;
acts or failure to act of the other party.
•'Existing Approvals•• shall mean, collectively, the Project Approvals, as set forth in
Recital E.
"General Plan'• as set forth in Recital D and elsewhere shall mean the cusent, updated
General Plan in effect as of the date of this Agreement.
'•Impact F¢es" shall mean the monetary consideration charged by City, County, or other
agency in connection with a Development Pmject for the purpose of defraying all or a portion of
the cost of mitigating the impacts of the Development Project and development of the public
facilities related to development of the Development Project, including, without limitation, any
'•Fee" as that term is defined by Governrnent Code section 66000(b), special taxes or assessments,
but not including "Connection Fees."
"Light Infrastructure" shall have the meaning given in Section 4.15.1 (b).
3354937.v20
"Local Agency shall mean a governmental agency whose legislative and administrative
actions the City has the legal ability to control. Any entity not within the exclusive control of the
City, including a joint powers authority, shall not be deemed a Local Agency for the purposes of
this Agreement.
"Mortgage'• shall have the meaning given in Section 9.2.1.
••Mortgagee" shall have the meaning given in Section 9.2.1.
"New City Laws" shall mean any ordinances, resolutions, orders, Hales, official policies,
standards, specifications, guidelines or other regulations, which are promulgated or adopted by the
City (including but not limited to any City agency, body, department, officer or employee) or its
electorate (through their power of initiative or otherwise) aRer the Effective Date. New City Laws
include amendments to Applicable City Regulations.
••New Other Laws•' shall mean New City Laws enacted a$er the Effective Date that are
required to be applied to the Project pursuant to applicable State or Federal laws or regulations.
For purposes of this definition: (i) State or Federal laws include not only enactments but also the
decisional law applicable within California as determined and declared from time to time by the
courts of California and of the United States; (ii) "enactments" means constitutional provisions,
statutes, charter provisions, ordinanoes, and regulations; (iii) "regulations" means rules,
regulations, orders, executive mandates, and standards, having the force of law, adopted by an
employee or agency of the State of California or of the United States; (iv) "statute" means an act
adopted by the California Legislature or by the Congress of the United States, or a state-wide
initiative act; and (v) State or Federal laws include enactments and regulations of applicable
regional and local (other than City) governmental entities acting pursuant to State or Federal laws
as described in (i) through (iv) of this defimition.
•'Notice of Breach" shall mean the notice provided to a defaulting party specifying the
nature of the alleged Default and the manner in which such Default may be satisfactorily cured.
••Notice of Subsequent Project Approval'• shall mean a notice recorded in ffie Official
Records that identifies the existence a specific Subsequent Project Approvals) approved pursuant
to Section 6.3.
"Official Recorder" means the official records of the City.
'•Part[ Obligation" shall have the meaning set forth in Section 415.
•'Parties•• shall mean, collectively, the City and Developer.
••Permitted Uses•• shall mean those permissible uses described in the Project Approvals,
'•Planning Commission" shall have the meaning given in Recital I.
"Prevailing Wage Actlon" shall mean any of the following: (a) any determination by the
State Department of Industrial Relations or its successor for effioroement of State prevailing wage
laws that prevailing wage rates should have been paid, but were not; (b) any determination by the
6
3354837.r/LO
State Department of Industrial Relations or its successor For enforcement of State prevailing wage
laws that higher prevailing wage rates than those paid should have been paid; (c) any
administrative or legal action or proceeding arising from any failure to comply with any of
Califomia Labor Code Sections 1720 through 1781; (d) any administrative or legal action or
proceeding to recover wage amounts, at law or in equity, including pursuant to California Labor
Code Section 1781; (e) the noncompliance by Developer or its contractor with any applicable Laws
(including, without limitation, if applicable, the requirement to pay State and/or Federal prevailing
wages and hire apprentices); (f) the implementation of Section 1781 of the Labor Code and/or the
Davis -Bacon Act, 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set
forth at 29 CFR Part 1 (collectively, "Davis -Bacon"), as the same may be amended from time to
time, or any other similar Laws; and/or (g) failure by Developer to provide any required disclosure
or identification as required by Labor Code Section 1781 and/or Davis Bacon, as the same may be
amended from time to time, or any other similar Laws.
'•Private Improvementa'• shall have the meaning set forth in Section 5.1.1.
••Processing Fees•' shall have the meaning given in Section 4.11.1.
••Project" shall have the meaning given in Recital D.
••Project Approvala •• means the Existing Approvals granted by the City Council as set
forth in Recital D of this Agreement and all Subsequent Project Approvals.
"Property•• shall have the meaning given in Recital B.
••Public Improvements" shall have the meaning set forth in Section 5.1 .2.
••RCFCD•• shall mean Riverside County Flood Control District.
"Reimbursement Agreement•• shall have the meaning given in Section 5.12.
••ROW' shall have the meaning as set forth in Section 53_
"School Feea•• shall mean school fees imposed under state law on Developer by the
Menifee Union School District, Romoland Union School District, and/or the Pems Unified High
School District, or their successors in interest.
"Sp¢c�c Plan•• shall have the meaning given in Recital D.
"Sports Field; •• ••Sports Field Uses'• shall mean that minimum 1 O-acre multipurpose park
within Planning Area SB of the Specific Plan with irrigated grass playing fields and/or artificial
turf fields of a size and quality appropriate to meet the standards promulgated by the California
State Soccer Association -South (Cal South), or equivalent standazds for youth soccer for general
practice and local games (not including to+++++p�+ents), as well as flag football and similar youth
sports field uses. The term "Sports Field Uses•' shall not include any permanent structures, other
than baseball field fencing and stands, restroom and concession facilities, Light Infrastructure, a
picnic pavilion, benches and tot lots, and such other facilities as are depicted in as per Specific
Plan section 3.1 .5.
3354a37.v20
••Subsequent Project Approvals•• shall mean additional future land use and construction
approvals and permits from City in connection with development of Property in a manner
consistent and compliant with the Project Approvals, which, upon approval, shall be deemed part
of the Project Approvals as of the date that they are approved.
"Subdivision Map Act•' means California Government Code, title 7, division 2, sections
6641 O et seg., as may be amended from time to time_
"Tentative Map•• means a map created pursuant to the Subdivision Map Act and
corresponding pmvisions of the Municipal Code.
•'Term'• shall mean the period of time during which this Agreement shall be in effect and
bind the Parties and their respective successors and assigns, as set Forth in Section 2.2 of this
Agreement and as may be extended pursuant to the provisions of this Agreement.
••Traf£c Signalization Improvem¢nta'• shall mean the following three traffic signalization
projects required by the EIR as a condition of implementation of the Project: Goetz/Valley,
Murrieta/Ethanac, Murrieta/Thomton.
"TUMF Program•• shall mean the Transportation Uniform Mitigation Fee Program of
Western Riverside County as implemented pursuant to City Ordinance No. 2009-62.
••WRCOG'• shall mean the Western Riverside Council of Governments, as ffie
administrator of the TUMF Program_
ARTICLE 2. EFFECTIVE DATE, TERM 8c REPRESENTATIONS AND WARRANTIES
2.1 Effective Date. This Agreement shall be efTective on the latter of the dates upon
which both the Enacting Ordinance has become effective (es specified in Recital I) and full
execution of this Agreement has occ;ttrred ("Effective Date"). The Eli'ective Date is inserted on
the title page of this Agreement. The Parties acknowledge that section 65868.5 of the Development
Agreement Statute requires that this Agrooment be recorded with the County Recorder no later
than ten (1 O) days after the Effective Date, and that the burdens of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, all duly authorized successors in interest
to the Parties to this Agreement. Further, within five working days of the date of the Enacting
Ordinance, the City shall pursuant to CEQA file with the County clerk a Notice of Determination
regarding the Existing Approvals and this Agreement.
2.2 Term. The Term of this Agreement shad commence on the Effective Date and shall
continue for a period of fifteen (15) yeazs from and after the Effective Date, unless this Agreement
is otherwise terminated or extended in accordance with the provisions of this Agreement. The
Term has been established by the Parties as a reasonable estimate of the time required to develop
the Project and obtain the public benefits of the Project. The Term may be extended by the City
Council £or one period of five (5) years if the Developer is not in material default of any of its
obligations herein and the City Council detemunes in its reasonable discretion that prior to the
expiration of the initial Term the Developer has made diligent efforts to (i) develop, market and
sell the Property, (ii) apply for all required Subsequent Project Approvals for the Project
8
3354937.v20
improvements, and (iii) construct the Project improvements, but despite such diligent efforts, the
Developer has not been reasonably able to commence or complete construction to of the Project.
23 Developer's Representations and Warranties. Developer represents and warrants to
City that, as of the Effective Date:
2.3.1 Developer is duly organized and validly existing under the laws of the State
of California, and is in good standing and has all necessary powers under Eae laws of the State of
California to own property interests and in all other respects to enter into and perform its respective
undertakings and obligations under this Agreement.
2.32 No approvals or consents of any persons or entities are necessary for the
execution, delivery or performance o£this Agreement by Developer, except as has been obtained.
2.3.3 The execution and delivery of this Agreement and the performance of the
obligations of Developer hereunder have been duly authorized by all necessary corporate,
partnership or company action and all necessary shareholder, partner and/or member approvals
have been obtained.
23.4 This Agreement is a valid obligation of Developer and is enforceable in
accordance with its terms.
2.3.5 Developer has not (i) made a general assignment for the bene£t of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the Sling of any involuntary
petition by the Developer's creditors, (iii) suffered the appointment ofa receiver to take possession
of all, or substantially all, of Developer's assets, (iv) suffered the attachment or other judicial
seizure of all, or substantially all, of Developer's assets, (v) admitted in writing its inabiliTy to pay
its debts as they come due, or (vi) made an offer of settlement, extension or composition to its
creditors generally.
23.6 Developer owns the Property in fee simple.
During the Term of this Agreement, the Developer shall, upon learning of any fact or
condition which would cause any o{the warranties and representations in this Section 2.3 not to
be true, give written notice of such fact or condition to City within 1 O (ten) days of learning such
fact or condition.
2.4 Provisions Recuired by Statute. California Government Code §§65865.1 and
658652 provide, among other things, that a development agreement shall specify the following:
2.4.1 Duration of the agreement. See Section 2.2 (Terms) of this Agreement
2.4.2 Permitted Uses of the Property. See Section Recital D (Project Approvals)
and 3.1 (Uses and Development Standards) of this Agreement
2.43 Density or intensity of such use. See Section Recite] D (Project Approvals)
and Section 42 (Density and Intensity of Development) of this Agreement.
3354937.v20
2.4.4 Maximum height and size of proposed buildings. See Section Recital D
(Project Approvals) of this Agreement. Height and size is not specifically noted in the
development agreement since it varies across the development; however, the Specific Plan as
noted in Recital D includes such regulations for maximum height and size of proposed buildings.
2.4.5 Reservation or dedication of land for public purposes. See Section Recital
D (Project Approvals) and 4.18 (Park Obligation) of this Agreement.
2.4.6 Periodic Review at least annually to demonstrate good faith compliance
with the Development Agreement. See Section 72 of this Agreement.
ARTICLE 3. PUBLIC BENEFITS
3.1 Public Benefits. Developer has previously agreed in connection with the Project
Approvals to provide the following community and area -wide infrastructure and pazk/trail
benefits. The City and Developer agree that this Agreement serves as a further contractual
mechanism through which the City can assure timely and quality construction of such facilities,
and, in addition, through Developer's installation of the Light Infrastructure and funding of
Missing Lirilc design documents, provide enhancements to such benefits.
- N¢w traffic signal syst¢m at Valley Boulevard and Goetz Road: Developer shall
provide 100^/o Direct Cost and Design funding even though not warranted or
required by the Specific Plan traffic study, at an estimated cost of $283,000.
- Advanc¢d completion of Valley Boulevard/Goetz Road improvem¢nts:
Developer shall complete, prior to the issuance of the 62^a building permit, even
though not required by the traffic study or other applicable City public Facility
_requirements, until Phase 5 of the Project.
- Provision of a multipurpose trail network as requested by the City: Developer
shall complete a multipurpose trail network as depicted in the Specific Plan.
- Missing Link: Developer shall provide, prior to first building permit, $40,000 in
Fees for complete design documents fbr the Valley Road "missing" link, which will
assist City in accelerating the completion of this portion of Valley.
- Provision of fully improved neighborhood parks totaling 10.9 acres: Developer
shall privately construct (and, with regard to the pazks in Planning Area 4B and
Planning Area 1B maintain through the formation of a homeowners' association
that shall have the obligation to maintain the parks in perpetuity and that shall be
formed, with covenants conditions and restrictions acceptable to the City, prior to
the completion and opening for public use of such parks), the parks in Plaruaing
Areas SB, I B and 4B, all of which will be fully available to the public.
o All improvements to the 1 O.O acre neighborhood park in Planning Area SB
will be funded by Developer for which Developer shall receive a credit as
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set forth in Section 4.15, thus avoiding City Financing of such
improvements and assuring timely completion of the park.
o The 0.64 acre park in Planning Area 4B will be publicly accessible and
fully improved at Developer's toss with no fee credit under Section 4.19
or otherwise.
o The 0.195 acre pazk in Planning Area 1B will be publicly accessible and
provided by Developer.
Community Facilities District for Public Safety: If and to the extent the City
requires that development projects in the City, at the same stage of development
approval as the Project, participate in one or more Community Facilities Districts
(CFDs) for Public SafeTy, Developer shall also cooperate in the formation of or
annexation into, such CFD for Public Safety. If formation of a CFD for Public
Safety is required, Developer shall be responsible for its pro rats share of costs
associated with the formation and/or annexation into the CFD for Public Safety. If
The flming of Developer's implementation of the Project prevents the Developer
from annexing the Project into the CFD for Public Safety prior to or concurrent with
recordation of the Final subdivision map £or the Project, the Developer shall enter
into aCity-approved CFD annexaflon agreement to require the annexation to occur
a$er the recordation of a final map but prior to issuance of any Certificates of
Occupancy for the development so long as a CFD for Public Safety is formed prior
to the issuance of the first Certificate of Occupancy for the Project. No Certificates
of Occupancy will be withheld due to failure of the City to review and approve the
anIlexa23on agreement Or the annexation.
ARTICLE 4. DEVELOPMENT OF THE PROJECT/PROPERTY
4.1 Appl" abl C'ry R eul ti s- D to 's V ted Riehts Subject to the terms and
conditions of this Agreement and the obligations and conditions required by the Applicable Law,
the City hereby grants to the Developer for the Term of this Agreement the present vested right to
develop and construct on the Property, the Project, which consists of all of the improvements
authorized by and subject to the requirements (including the requirement to obtain and comply
with any Subsequent Project Approvals) of the Project Approvals and this Agreement. To the
extent permitted by applicable law and/or this Agreement, and except as otherwise provided
herein, no future amendment, modification or repeal of the Applicable City Regulations and
Specific Plan shall apply to the Property that (i) Limits the Permitted Uses of the Property, the
density and intensiTy of use (including but not limited to maximum number of dwelling units) of
the Property, the maximum height and size of proposed buildings on the Property, (ii) imposes
new or modifies existing requirements for reservation or dedication of land for public purposes,
public infrastructure and utilities, or public improvements, except as necessary to comply with
Applicable City Regulations and/or to provide services under the Subdivision Map Act and
corresponding provisions of the Municipal Code with respect to the future subdivision of land
contemplated in the Project Approvals and this Agreement, (iii) imposes conditions upon
development ofthe Property other than as permitted by the Applicable Law, the Project Approvals
and this Agreement, or (iv) limits the rnte of development of the Property; provided, however, that
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nothing in this Agreement shall prevent or preclude City from adopting any land use plans,
ordinances, policies, regulations or amendments permitted herein.
4.2 De itv d Int �t f D 1 n t For avoidance of doubt, Developer shall,
subject to compliance with this Agreement and other Applicable Laws, have the right to develop
the project ai the maximum densities set £or[h in the Specific Plan (subject further to the minimum
lot size, maximum gross lot coverage, maximum floor area, setbacks, authorized density transfers,
and other development and design standazds as specified in Specific Plan).
43 No Conflictin¢ Enactments. Except to the extent City reserves its discretion as
expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to
the Project or the Property any ordinance, policy, Wile, regulation, or other measure relating to
Development of the Project that is enacted or becomes effective aRer the Effective Date to the
extent it conflicts with the Project Approvals. This Section 4.3 shall not restrict City's ability to
enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant
to California Government Code Section 65866 consistent with the procedures specified in Section
4.4 o£this Agreement. In Pardee Construction Co. v. City ofCamariZlo (1984) 37 Ca1.3d 465, the
California Supreme Court held that a construction company was not exempt from a city's growth
control ordinance even though the city and construction company had entered into a consent
judgment (tantamount to a contract under California law) establishing the company's vested rights
to develop its property consistent with the zoning. The California Supremo Court reached this
result because the consent judgment failed to address the timing of development_ The Parties
intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement
that Developer shall have the vested right to Develop the Project on and with respect to the
Property at the rate, timing, and sequencing that Developer deems appropriate within the exercise
of Developer's sole subjective business judgment, provided that such Development occurs in
accordance with this Agreement and Applicable Law, notwithstanding adoption by City's
electorate of an initiative to the contrary aRer the Effective Date. No City moratorium or other
similar limitation relating to the rate, timing, or sequencing of the development of all or any part
of the Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts Developer's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
4.4 Tentative Subdivision Mans. When the Developer submits an application for
approval of a Tentative Map, (i) any such Tentative Map shall comply with the requirements of
Government Code section 66473.7, and (ii) the City shall not require that the Developer include
any land or perform any ofF--site condition prior to final map approval, but may require that the
Developer enter into an agreement as authorized by Government Code section 66462.5(c). City
further agrees that Developer may file and process new tentative maps for the Property consistent
with California Government Code sections 66498.1-66498.9. Pursuant to the Government Code
section 66452.6(a), the life of any tentative subdivision map approved for the Property, whether
designated a "vesting tentative map" or otherwise, shall be extended for the term ofthis Agreement
and unless otherwise stated shall be a maximum of 15 yeazs.
4.5 Development hnuact Fees_ Exactions. and Processinu Fees To Be Paid When Due_
Except as otherwise provided herein, the Developer agrees to pay when due any required
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Development Impact Fees ("DIF") assessments, taxes, and/or exactions which may be levied or
assessed against the Project in accordance with this Agreement, as and to the extent provided
below. Unless an alternative time for payment of any fees is stated herein, or are statutorily or by
ordinance due at a different time, all fees shall be due prior to the issuance of building permits.
Processing fees shall be paid in full at the time applications are submitted.
4.6 Development Impact Fees The current DIF applicable to the project are in the
amount set forth in Exhibit E, which shall be based on the schedule required to be prepared
pursuant to Section 4.12. Developer agrees that all Project Approvals shall be subject to the DIF.
Developer and CiTy further agree that the DIF (shown on and subject to adjustments as allowed in
Exhibit E) shall remain fixed for a period of five (5) years from the effective date of this
Development Agreement, other than aone-time adjustment of such fees that may occur prior to or
during such period (i.e., the City's Comprehensive DIF update for fiscal year 2016-2017). If the
City incorporates automatic periodic increases of the DIF applicable to all City development
projects, following the five (5) year fixed period, the Project will be subject to 50 % ofsuch periodic
increases for a two (2) year period whether the periodic increase occurred within the irtitial five
(5) year fixed period or af3er. Any DIF that are due seven (7) or more years following the Effective
Date shall be subject to the Full DIF in effect at that time.
City may impose and the Developer shall comply with those Exactions required by the
Existing Approvals, Applicable Law and/or this Agreement; provided, however, the City will not
impose and the Developer shall not be required to comply with and/or pay for any Exactions other
than as provided in or contemplated by the Existing Approvals, Applicable Law and/or this
Agreement. As used in this Section, the City is not deemed to have imposed an Exaction or Impact
Fee in circumstances wherein the City serves merely as a depositary or fiscal agent to facilitate
another entity's collection of such Exactions or DIF, or similar charges that the other entity may
independently impose, and as set forth further below in Section 4.7 and/or 4.8.
4.7 FederaVState Compliance Fees. Notwithstanding anything to the contrary in this
Agreement, City may charge and the Developer, individually, on its sole behalf, and only with
respect to its real property, agrees to pay any new, increased or modified taxes, assessments, DIF
or Exactions, whether imposed as a condition of or in connection with any Subsequent Project
Approvals or otherwise, if such fees are uniformly imposed and are reasonably necessary to
comply with the requirements of any Federal or State statute, regulation, or legal requirement.
4.8 Non -Local A¢encv Compliance Fees. City may collect and the Developer agrees
to pay any new, increased or modified taxes, assessments, DIF or Exactions, whether imposed as
a condition of or in connection with any Subsequent Project Approvals or otherwise, which are
uniformly imposed and reasonably necessary to comply with the requirements of local
governmental agencies other than a Local Agency and which (i) such local governmental agency
has the independent legal authority to impose such tax, assessment, Impact Fee, or Exaction
without the permission or consent of the City and (ii) the CiTy has agreed or is required to collect
on behalf of such governmental agencies for administration purposes. If Developer fails or refuses
to pay a fee imposed by another local government agency on the basis that such fee does not {all
within the criteria set forth in Section 4.8(i), then Developer shall defend and indemnify City and
its officers, agents, and employees from and against all costs (including attorneys' fees) incurred
by the City that arise from and/or relate to such failure or refusal_
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4.9 C f A 1' bl C'tv R 1 ti The Applicable City Regulations shall be
chose regulations set forth in Exhibit B_
4.30 [RESERVED]
4.1 I New City Laws- Reservafions of Authority. New City Laws shall not be applicable
to the Property except as otherwise provided in This Section. The Parties acknowledge and agree
that City is restricted in its authority to limit its police power by Development Agreement and that
the limitations, reservations and exceptions contained in this Section are intended to reserve to
City all of its police power which cannot be so limited by Development Agreement. This
Agreement shall be construed to reserve to City all such power and authority which cannot be
restricted by Development Agreement. Notwithstanding any other provision of this Agreement to
the contrary, th¢ following regulations and provisions shall apply to the development of the
Property, consistent with Government Code section 65866.
4.11.1 Processing Fees and charges of every kind and nature imposed by City,
including, without limitation, plannizag processing deposits, to cover the actual costs to City of
processing applications for Project Approvals, or for monitoring compliance with any Project
Approvals granted or issued, as such fees and charges are adjusted From time to time.
4.112 Ordinances, resolutions, orders, rules, official policies, standards,
specifications, guidelines, procedures or other laws or regulations relating to hearing bodies,
petitions, applications, notices, fmdings, records, hearings, reports, recommendations, appeals and
any other matter of procedure, provided that such ordinances, resolutions, orders, rules, official
policies, standards, specifications, guidelines, procedures or other laws or regulations are
uniformly applied on a City-wide basis to Development Proj ecis.
4.11.3 Regulations governing construction standards and specifications {or the
physical construction of buildings and related improvements and infiastmcture, including City's
building code, plumbing code, mechanical code, electrical code, fire code and grading code, and
all other uniform construction codes applicable in City at the fime of pem�it application.
4.11.4 New City Laws which may be in conflict with this Agreement or the Project
Approvals but which are necessary to protect persons or property from dangerous or hazardous
conditions which create a threat to the public health or safety or create a physical risk, based on
findings by the City Council idenfifying the dangerous or hazardous conditions requiring such
changes in the law, why there are no reasonably feasible alternatives to the imposition of such
changes, how such changes would alleviate the dangerous or hazardous condition, and how the
changes are narrowly tailored to address the dangerous or hazardous condition.
4.11.5 New City Laws applicable to the Property, which do not conflict with this
Agreement and/or the Applicable City Regulations.
4.12 D l p 's C t t f A 1' b'1-ty f N C'ri L If the Developer contests
the application of any New City Laws to the Project(i) prevents or precludes compliance with one
or more provisions of the Project Approvals or this Agreement, or (ii) has the effect of materially
impeding or preventing development of the Project in accordance with the Project Approvals or
this Agreement, the Developer shall give written notice to the CiTy of such issue, including stating
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the basis upon which the Developer believes a New City Law is not applicable to the Property or
to a portion of it. Developer's written notice shall explain the factual and legal reasons how the
application of New CiTy Law would materially and adversely affect the Developer's rights under
this Agreement. The CiTy shall respond in writing to the Developer's notice within thirty (30) days
of receipt of such notice.
If the City does not provide a written response that resolves the issue, at the Developer's
request, the Parties shall meet and confer within thirty (30) days of Developer's request for such a
meeting. The Parties shall meet and confer, as necessary and appropriate, during a period not to
exceed sixty (60) days.
If after meeting and conferring, the Parties fail to find a mutually agreeable solution then
Developer shall have the right, at its sole election, to either; (i) pursue litigation pursuant to
Section 7.3, or (ii) to request that City cancel this Agreement by giving a written request for
cancellation to the City and Developer not earlier than sixty (60) days, nor more than one hundred
eighty (180) days, after the last day of the period within which the Parties are to meet and confer;
provided, however, that before the Developer shall submit such request for cancellation, the
requesting Developer shall give at least sixty (60) days written notice o£ its intent to request
cancellation to the City. Nothing in this Agreement shall be deemed a waiver of Developer's right
to challenge or contest the validity or applicability of any New Other Laws. Developer agrees
and understands that City does not have authority or jurisdiction over any other public agency's
ability to grant governmental approvals or permits or to impose a moratorium or other limitations
that may affect the Project.
4.13 Re¢ulation by Other Public Acencies. Developer acknowledges and agrees that
other public agencies not within the control of CiTy may possess authority to regulate aspects of
the development of the Property separately from or jointly with City, and this Agreement does
not limit the authoriTy of such other public agencies. Developer shall, at the time required by
Developer in accordance with Developer's construction schedule, apply for and obtain all such
other permits and approvals as may be legally required by any other applicable governmental or
quasi -governmental entities with jurisdiction over the Project in connection with the development
of, or the provision of services to, the Project. Developer shall also pay all required fees to such
public agencies when due. To the extent required by the CiTy to confirm compliance with Project
Approvals, the Developer shall provide proof of such perrnits/approvals and/or payment of such
Fees to CiTy prior to or concurrently with issuance ofbuilding permits for any portion ofthe ProjecT
foz which such permits or approvals aze required and/or fees are due. Developer acknowledges
that CiTy does not control the issuance of permits or approvals or the amount of any such fees.
City shall reasonably cooperate with Developer in Developer's effort to obtain such permits and
approvals; provided, however, City shall have no obligation to incur any costs, without
compensation or reimbursement, or to amend any City policy, regulation or ordinance in
connection therewith_ In the event that School Fees are imposed upon the Developer that the
Developer believes in good faith are in excess of, or not otherwise required by state law and the
Developer wishes to object to such School Fees, the Developer may pay such fees under protest
if the Developer objects and pays School Fees under protest, the CiTy agrees not to delay issuance
of permits under these circumstances, unless such delay is otherwise required by law.
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4.14 Insurance Recuirements. During any period of construction of Project Public
Improvements on the Property, the Developer shall procure and maintain, or cause its contractors)
to procure and maintain for the duration of this Agreement a commercial general liability, workers
compensation, and other types of insurance in limit amounts and on such forms that may be
required by the City in its commercially reasonable discretion from those available in the
commercial insurance marketplace. Developer's insurance shall be placed with insurers with a
current A.M. Best's rating of no less than A-:VII or a raring otherwise approved by the City
Manager in his or her sole discretion. Developer shall furnish at City's request appropriate
certificates) of insurance evidencing the insurance coverage required by the Developer hereunder,
and the City of Menifee and its elected and appointed officials, officers, agents, employees,
contractors and representatives (collectively, "City Parties") shall be named as additional insured
Parties under the policies required hereunder. The certificate of insurance shall contain a statement
of obligation on the part o£ the carrier to notify City of any zaterial change, cancellation or
termination of the coverage at least thirty (30) days in advance of the effective date of any such
material change, cancellation or termination (ten (10) days advance notice in the case of
cancellation for nonpayment of premiums) where the insurance carrier provides such notice to the
Developer. Coverage provided hereunder by the Developer shall be primary insurance and shall
not be contributing with any insurance, self-insurance or joint self-insurance maintained by City,
and the policy shall contain such an endorsement. The insurance policy or the endorsement shall
contain a waiver o£ subrogation for the benefit of City and its insurers, if such waiver is available
in the commercial insurance marketplace.
4.15 Develoner Park imorovement Credits. Notwithstanding anything in Section 4.13 or
the Applicable Law to the contrary, this Section 4.17 shall set forth the full and complete
satisfaction of the Developer's obligation related to provision of neighborhood and/or community
parks pursuant to the Municipal Code, Govermnent Code section 66477 (the "Quimby Act") and
this Agreement, and no further park dedications, in -lieu fees or other facility requirements of any
Type related to local park obligations ("Public Perlc Obligation") shall apply to the Project.
Developer is obligated, based on the City's formula for local park dedication, to provide 11.96
acres of uninsproved neighborhood parks. Developer will be providing 1 O.O acres of dedicafed
land for Sports Field Uses and 0.835 acres of Homeowners' Association park land that will be
publicly accessible. Developer will be subject to additional in -lieu fees for the approximate 1.96
acres of obligated parkland the project is short of the 17.96 acres required to fully satisfy Quimby
Act requirements. Developer improvements to the 10.0 acre Sports Field, that are over and above
Developer's park obligations and the verified cost of such improvements, will be credited towards
Park DIF obligations of the Project £or park construction. The credit granted shall not exceed the
portion of Park DIF otherwise due for park constmction within the City. Any credit granted shall
be given in stated dollar amounts only. Any credit applied to the project or transferred can only
be applied to the DIF due for park construction and not for other categories of DIF. The specific
details and formula for Developer's park code obligation, and proposed project park
dedications/estimated improvement costs are as Follows:
• Developers Quimby AcUCity Code Obligation = 11.96 acres (756 DUs (or final maximum
lot count per the approved Specific Plan) x 3.164 persons per DU = 2,392 persons; Q 5
acres/1000 persons = 11.96 acres)
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Specific Plan Proposed Park Total = 10_84 acres (O.195 acre Homeowners' association
maintained neighborhood park in Planning Area 1B; 0.64 acre Homeowners' association
maintained neighborhood park in Planning Area 4B and 30.0 acre City owned and
maintained community park in Planning Area SB)
• Current Estimated Park Improvement Costs:
- 30.0 acre £ally improved, dedicated multipurpose community park with Sports
Field Uses in Planning Area SB = $4,445,720�
- .90 acre improved and Homeowners' Association maintained neighborhood parks
in Planning Area IB (0.195 acres] and Planning Area 4B (0.64 acres) _ $0 credit
The above calculated improvement costs are estimates only and shall not be used as any
basis £or limitations of park improvements. Based on the above formula and obligation, and
Developer's advance funding ofthe installation ofpazk improvements, Developer shall be entitled
to credits for the 1 O.O acre park in Planning Area SB from City-wide Park DIF, payable at the time
of collection for the £anal verified costs of the that park. As noted in the conditions of approval for
the TTM, and as stated herein a Quimby Act credit fee agreement based on the established fees
and rates at that time, and Park DIF credit agreement based on the established fees at that time,
shall each be entered into to formalize the amount of credits and fees due.
In full and complete satisfaction of Developer's Park Obligation, the Project shall do all o£
the following:
415.1 Timing and Scope of Sports Park Improvements.
(a) Phase 1 Pazk_ Prior to issuance of building permits for the {rst residential
unit in Phase 1, pursuant to Specific Plan Section 3.5 Phasing Plan, conceptual plans for the 0.195
acre neighborhood park designated in Phase 1 (Planning Area 1B) consistent with the design and
improvements set forth in the Specific Plan and shall be submitted by Developer to the City for
review and approval, and shall be constructed in accordance with the conditions of approval for
the Specific Plan and Tentative Tract Map.
(b) Phases 4 and 5 Park Conceptual Plans. Prior to issuance of building permits
for the first residential unit in Phase 4, pursuant to Specific Plan Section 3.5 Phasing Plan,
conceptual plans for the 0.64 acre park designated in Phase 4 (Planning Arca 4B) and 1 O.O acre
park designated in Phase 5 (Planning Area SB) consistent with the design and improvements set
forth in the Specific Plan shall be submitted by Developer to the City £or review and approval,
and shall be constructed prior to completion of Phase 5. Further, notwithstanding anything to the
contrary in this Agreement, the Specific Plan, or Tentative Tract Map, the conceptual plans for
the 1 O.O acre park designated in Phase 5 and the corresponding improvements to be constructed
by Developer shall include the installation of fully functional athletic field lighting including 3
inch conduit, two power sources, pull boxes (located every 100 feet to 200 feel and out of all
fields of play, two controller panels (7 zones each), up to 18 light poles with fixtures that shall
meet specifications for Masco's Light Strucurre Green, with 1500 watt metal halide light sources,
Pstimated construction costs; credit to be based on final, verified improvement costs.
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for all planned park lighting (collectively, the "Light Infrastructure"), all as generally consistent
with the materials included as Exhibit F; provided, however, that the cost estimates provided in
Exhibit F shall serve as neither a floor nor a ceiling on Developer's obligations with regard to the
Light Infrastructure. Constmction documents for the park, including the Light Infrastmcture,
must be submitted, reviewed and approved by the City prior to park construction.
(c) City Timely Review. The Ciry shall, within its reasonable discretion and
subject to the requirements of this Agreement, approve, conditionally approve or reject such park
conceptual plans, described in 4.17.1 (a) and (b) above, in a timely manner. The City shall not
unreasonably withhold or delay its review of such conceptual park plans.
(d) CFD For Pazk Maintenance. The Ciry shall, and Developer agrees, to and
hereby requests that the City create or annex into a valid and enforceable pazk facilities
maintenance mechanism, and have same in place and operational prior to, and before Developers'
obligation commences to implement the construction of the park 1 O.O acre park in Planning Area
SB. The public maintenance mechanism is anticipated to be the Citywide Community Facilities
District, which the project is required to annex into prior to recordation of the Final Map. The
Developer shall establish a Homeowners Association, with conditions, covenants, and restrictions
approved by the City, for the maintenance of the Planning Area 1 B and Planning Area 4B parks.
Developer shall provide an updated schedule showing a best estimate, but not a commitment, for
completion of the 1 O.O acre park in Planning Area SB, by a fixed date as part of the annual review
and shall Host an aooronriate bond for completion of the required improvements, which bond shall
be posted prior to issuance of first building permit within the Project. The cost estimate for such
bond shall, if final improvement costs aze not otherwise available, be based on an estimated cost
of $4,445,720.
ARTICLE 5. UTILITIES
5.1 Proiect Improvements.
5.1.1 Construction of Private Improvements. Developer shall, at its own expense,
in accordance with the Applicable Ciry Regulations, construct, and maintain any and all
improvements on the Property, including all infrastructure that is necessary to serve the Project,
that are not and will not be offered and accepted for dedication to the City for ownership, operation
and maintenance ("Private Improvements").
5.1.2 Construction o£Public Irnurovements. Developer shall, in accordance with
the Applicable City Regulations, construct The water, sewer or street improvements necessary to
serve the portion of the Project being developed as shown in the Specific Plan. These street
improvements are to be offered for dedication to the City for ownership, operation and
maintenance consistent with the Applicable City Regulations ("Public Improvements"). To the
extent any Public Improvements will provide a material benefit to another landowner, the City
shall establish the Developer's share of such improvements and identify any potential benefited
owners and pursuant to Section 5.1.4 of this Agreement, shall work in good faith with Developer
to enter into a Reimbursement Agreement with such other landowners}, through which such other
landowners) shall, if the City's good faith efforts result in a Reimbursement Agreement, pay their
fair share of the costs of the applicable Public Improvements.
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5.7.3 Southern California Edison ("SCE"1 Easements. City agrees to utilize
reasonable efforts to timely request and secure, at no cost to City, any easements, encroachment
permits and/or other licenses for any public improvements necessary for the Project mom SCE.
5.1.4 Districts. The City and the Developer agree that the constmction of the
Public Improvements may be £Wanted by a District or Districts which could encompass the
Property and, to the extent other owners outside the Specific Plan are interested or benefit
there$om and are made part of such District in accordance with all applicable law, such other
lands. The City agrees, at any Developer's request and subject to all applicable law and prudent
underwriting standards, to in good {with consider the {ornaation of a District(s), in accordance with
the procedures governing the creation of a District, to finance some or al] of the Public
Improvements. If the Developer requests fomtation o£ a District, the Developer will be deemed to
have consented to formation of such District(s), to the assessments or taxes ratably allocated to the
Property by the District(s), and to having the Property included within the District(s). The
Developer agrees to cooperate and to pay the City's reasonable costs, in the City's £ormaflon of
the District or Districts and in the performance by the Districts) of its responsibilifles_ The City
and Developer agrees that, unless the City and the Developer agree otherwise, the assessments or
special taxes for any District formed will be collected from any parcels only a8er such parcel has
received approval of Final Maps, and then only to the extent of the number o£ residential or
commercial lots included in such Map.
52 - Acceptance of Public Improvements and Certificate o£ Satisfaction. Developer's
obligations with respect to construction of all Public Improvements, including performance and
labor and materials security and warranty obligations, and City's obligations with respecT to
acceptance thereof, shall be set forth in a Public Improvements agreement in a £ormt reasonably
acceptable to the City Attorney. Within sixty (60) days after the Developer's written request,
which may be made at any time following acceptance of a Public Improvement by the City
pursuant to such public improvements agreement, the City shall issue a certificate of satisfaction
evidencing the satisfaction of the applicable Public hnprovement obligation.
5.3 infrastructure Easements and Ri¢hts of Way. The City and Developer shall
cooperate in connection with any arrangements for granting, abandoning or relocating existing, or
creating any new, utility or other easements, Facilities, property rights or rights of way
(collectively, "ROW"), necessary to effectuate the development of Public Improvements to
implement the Specific Plan; and if any such ROW is owned by the Developer, the City, or an
agency of the City, then the Developer, the City or such agency of the City shall, at the request o£
the Developer, subject to the rights of any third Person with respect thereto, take such actions and
execute such documents as may be necessary to grant, abandon, relocate and/or revest such ROW,
as necessary in connection with the development Public Improvements to implement the Specific
Plan. The Developer requesting such cooperation from the City shall reimburse the City £or all
costs and expenses incurred by the City in connection with this Section 5.3. Any requested
abandonment or relocation of a ROW pursuant to this Section 53 shall provide that any rights
and/or benefits under such existing ROW shall be substantially and adequately replaced by any
new ROW and/or the resulring Public Infrastructure (including, if necessary, any interim rights
pending completion of the resulting Public Infrastructure).
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ARTICLE 6. AMENDMENTS 8r SUBSEQUENT PROJECT APPROVALS
6.1 Amendment. Except as expressly provided in Section 6.2 below, this Agreement
may be amended only by mutual written consent of all of the Parties hereto or their successors -in -
interest or assignees_ Any amendment to this Agreement shall comply wish the. process
requirements of the Development Agreement Law and shall be recorded in the Official Records.
6.2 Modifications Delegated to the City Manager. The CiTy Manager is delegated the
authoriTy to make the modifications to this Agreement expressly provided in Sections 6.2.1, 6.22
and 6.2.3 below.
6.2.1 Clerical and Conforming Revisions. The City Manager is authorized to
correct typographical errors, references to drag documents, statutes, ordinances, page numbers,
maps, and make similar clerical and conforming changes to this Agreement, the Specific Plan, or
to any of the documents contemplated herein. If the CiTy Manager elects to record any revised
version of apreviously-recorded document contemplated by this Agreement in order to reflect any
clerical and conforming changes: (i) City Manager shall provide Developer with thirty (30) days
written notice o{intent to record the revised document; (ii) the Parties agree that aRer thirty (30)
days' notice CiTy Manager may record the revised document; and (iii) the Parties agree that the
date upon which the original version of the document was recorded shall remain and be deemed
to be that documents date of recordation.
6.22 Inco t' d Id rif ti f S b t P o' t A al .The City
Manager is authorized to, upon request by Developer or at his or her discretion, execute and record
in the Official Records a Notice of Subsequent Project Approval.
623 Administrative Adiustments. The City Manager is authorized, in his or her
discretion, to enter into Administrative Adjustments as defined herein_ Any administrative
amendment to this Agreement which in the context of the overall Project contemplated by this
Agreement does not in the determination of the CiTy Manager substantially affect (i) the Term of
this Agreement; (ii) Permitted Uses of the Property; (iii) provisions for the reservation, dedication
or conveyance of land; (iv) conditions, terms, restrictions or requirements for subsequent
discretionary actions; (v) the density or intensity of the use of the Property or the maximum height
or size of proposed buildings; (vi) and "Minor Amendments" (defined below), which shall not,
except to the extent otherwise required by law, require notice or public hearing before the parties
may execute an amendment hereto. The following modifications to the Project will constitute
Minor Amendments: (a) minor changes in landscaping; (b) variations in the location of structures
that do not substantrally alter the design concepts ofthe Specific Plan; (c) variations in the location
ofutilitres or other infrastructure connections or facilities not materially af2'ecting design concepts;
(d) similar modifications as approved by the CiTy Manager, and (e) monetary contributions by
Developer. The City Manager shall have the authority to execute a Minor Amendment or, in his
or her discretion, seek approval of a Minor Amendment by City resolution.
6.3 City Processing of Subsequent Protect Aaprovals. The CiTy and Developer agree
that Developer must be able to proceed efficiently with the development of the Property and that,
accordingly, an efficient CiTy review and land development and construction inspection process is
necessary. Accordingly, the CiTy agrees that upon submission by Developer of all appropriate,
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complete, and sufficient, applications and submittal of all required applications and processing
£ees, City shall, to the full extent allowed by law, promptly and diligently, subject to Applicable
Law, use good faith efforts to commence and complete all steps necessary to act on such
applications for Subsequent Project Approvals, including: (i) if legally required, at Developer's
request and expense provide notice and holding public hearings; and (ii) acting on any such
pending application. All Subsequent Project Approvals shall, upon written consent of the
Developer and the City (acting through the City Manager) be deemed incorporated herein and
vested as ofthe effective date of such approvals and shall be governed by the terms and conditions
o{this Agreement,
6.4 CEOA. The Parties acknowledge and agree that the mitigation measures identified
in the EIR, as applicable, will be applied to the appropriate Project Approval, as enforceable
conditions of approval. The Parties understand that the EIR is intended to be used in connection
with the Existing Approvals, and may also be used in connection with Subsequent Project
Approvals. However, the Parties acknowledge that, depending on the scope of the project
described in any Developer's application(s), certain discretionary Subsequent Project Approvals
may legally require additional analysis under CEQA. Nothing contained in this Agreement is
intended to limit or restrict the discretion of the City to comply with CEQA. However, the City
shall not undertake additional environmental review nor impose new or additional mitigation
measures on the Project except as required by applicable law. To the extent supplemental or
additional review is required in connection with Subsequent Project Approvals, Developer
acknowledges that City may require additional mitigation measures necessary to mitigate
significant impacts identified through that additional environrental review.
ARTICLE 7_ DISPUTES, DEFAULT, REMEDIES
7.1 Default.
7.1.1 Remedies In General. City and Developer agree that, following notice and
expiration of any applicable cure periods, in the event of Default by City, the Parties intend chat
the sole and exclusive remedy for Developer shall be specific performance of this Agreement. in
no event shall any Developer or any other Party be entitled to any monetary damages (or recovery
of money through a claim of specific performance) from the City for any matter that azises 8om
or relates to the City's performance under this Agreement.
In the event of any Default by the Developer hereunder, City, following notice and
expiration of any applicable cure periods, shall be entitled, in addition to its other rights and
remedies specified herein, to pursue (1) any remedies available at law or in equity, including
recovery of actual damages from the defaulting Developer; provided, however, that City shall not
be entitled to any consequential, punitive, or special damages, and (2) recovery of any and all costs
and fees incurred by City i£ the CiTy elects, in its sole and absolute discretion, to perform
obligations that Developer has failed to timely perform hereunder.
7.1.2 Cure Period. Subject to extensions of time by mutual consent in writing o£
the Parties and the provisions of Section 22.1 herein, breach of, failure, or delay by the City or
Developer to perform any term or condition of this Agreement shall constitute a Default
("Default"). Tra the event of any alleged Default of any term, condirion, or obligation of this
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Agreement, the parry alleging such Default shall give the defaulting party notice in writing
specifying the nature of the alleged Default and the manner in which such Default may be
satisfactorily cured ("Notic¢ of Breach"). The defaulting party (City or Developer) shall cure the
Default witrdn forty-five (45) days following receipt o£ the Notice of Breach, provided, however,
if the nature of the alleged Default is such that it cannot reasonably be cured within such forty-fave
(45) day period, then the commencement of the cure within such time period, and the diligent
prosecution to completion of the cure thereafter, shall be deemed to be a cure, providcd that if the
cure is not diligently prosecuted to completion, then no additional curd period shall be provided.
If the alleged failure is cured within the rime provided above, then no Default shatl exist and the
noticing party shall take no further action to exercise any remedies available hereunder. If the
alleged failure is not cured, then a -Default shall exist under this Agreement and the non -defaulting
party having alleged Default may exercise any of the remedies available under Section 7.1.3 or
Section 7.1.4.
7.1.3 Procedure for Default by Develouer. I£Developer is alleged to be in Default
hereunder, th¢n after notice and expiration of the cure period specified in Section 7.1.2 above, the
City may institute legal proceedings against the Developer pursuant to this Agreement, and/or give
notice of intent to terminate or modify this Agreement as to the Devdoper pursuant to California
Government Code section 65868. Following notice of intent to terminate or modify this Agreement
as provided above, the matter shall be scheduled for consideration and review in the manner set
forth in Governn-aent Code sections 65865, 65867 and 65868 by the City Council within thirty (30)
calendar days following the date of delivery of such notice (the "Default Hearing"). Following
the consideration of the evidence presentcd ut such review before the City Council and a
determination, based on substantial evidence, by a majority vote of the City Council that a Default
by Developer has occurred, the City may give written notice of termination of this Agreement to
Defaulting Developer, and this Agreement shall be deemed modified or terminated as to the
Defaulting Developer and the Defaulting D¢veloper's portion of the Property only as of the date
of delivery of such notice; provided, however, that, if such termination or modification occurs
because of a Default of Defaulting Developer hereunder alter this Agreement has been assigned
so that it applies to more than one entity as "Developer^ then such termination or modification
shall relate only to that specific portion of the Property as may then be owned by the Defaulting
Developer that committed a Default hereunder and not to any other portion of the Property owned
by a different entity. This Section 7.13 shall not be interpretcd to constitute a waiver of section
65865.1 ofthe Government Code, but merely to provide an element of the procedure by which the
Parties may talcc the actions set forth in section 65865.1.
7.3.4 Procedure for Default by the Ciri. If the City is alleged by Developer to be
in Default under this Agreement, then after notice and expiration of the cure period specified in
Section 7.1.2 above, the Developer may enforce the terms of this Agreement by an action at law
or in equity, subject to the limitations of Section 7.11 and compliance with federal and state law.
7.1.5 Annual Review. Evidence of Default may also arise in the course of the
regularly scheduled annual review of this Agreement pursuant to California Government Code
section 65865.1 as described in Section 7.2 herein. If any Party alleges that another Party is in
Default following the completion of the normally scheduled annual review, such Party may then
give the other a written Notice of Breach, in which event the provisions of this Section 7.1 shall
apply. In addition, the regularly scheduled annual review o£ this Agreement may, following
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compliance with the requirements of Section 7.1 .2, serve as the Default Hearing for any alleged
Default by Developer as described in Section 7.1.3 herein.
72 Annual Review.
7.2.1 Timine and Scone of Annual Review. At least once every twelve (12)
month period from the Effective Date, Developer shall submit a letter to the City that (1)
enumerates and demonstrates Developer's compliance with all obligations required of it under the
Agreement that have come due within the preceding twelve (12) months, and (2) describes each
obligation that is scheduled to come due in the succeeding twelve (12) months and describes
Developer's plan to comply with those obligations. Developer's letter shall be accompanied by
(1) the Annual Review Form provided in Exhibit D, completed by Developer, together with such
other information as may be requested by the City Manager (2) a fee deposit of an appropriate
amount to cover the costs of the City's conduct of the annual review. Upon receipt of Developer's
letter, City shall review the good faith compliance of Developer with the terms of dais Agreement
(the "Annual Review"). The Annual Review shall be conducted by the City Council or its designee
in accordance with the Development Agreement Ordinance, as the same may be amended from
rime to time The Annual Review shall be limited in scope to the determination of Developer's
compliance with the terms o£ this Agreement pursuant to California Government Code Section
65865.1, and to a review of Developer's plan for compliance with the Agreement over the
succeeding twelve (12) months; provided, however, that if the City Council imposes a mitigation
monitoring or reporting program pursuant to CEQA which is to be completed simultaneously with
the Annual Review of this Agreement, then the scope of the Annual Review may include
implementation of mitigation measures pursuant to CEQA, except that compliance with mitigation
measures shall not be deemed to be an obligation of any Party pursuant to this Agreement solely
or partly because mitigation monitoring is conducted simultaneously with review of this
Agreement.
72.2 Standards for Annual Review. During the Annual Review, Developer shall
be required to demonstrate good faith compliance with the terms of this Agreement. At the
conclusion of the Annual Review, the City Council or its designee shall make a written
determination, on the basis of substantial evidence, whether or not Developer has complied in good
faith with the terms and conditions o£ this Agreement. The decision of any designee of the City
Council shall be appealable to the City Council. If the City fords and determines that Developer
has not complied with the terms and conditions of this Agreement, then the City may declare a
default by Developer in accordance with Article 7 herein. The costs incurred by the City in
connection with the Annual Review process shall recouped from the deposit paid by Developer
(as the same may need to be augmented from rime to time).
7.2.3 Evidence for Annual Review. The City, upon request by Developer, and at
no cost to City, shall provide Developer a copy of any final public staff reports and documents to
be used or relied upon in conducting the Annual Review and, to the extent practical, related
exhibits concerning Developer's performance hereunder, prior to any such review. Developer shall
be permitted an opportunity to respond to a City's evaluation of its performance, either orally at a
public hearing or in a written statement, at Developer's election.
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7.2.4 Certificate of Compliance. With respect to each year in which City approves
Developer's compliance with this Agreement, the City shall, upon written request by Developer
and at no cost to City, provide Developer with a written certificate of good Faith compliance within
thirty (30) days of the City's receipt of Developer's request for same.
7.2.5 Failure to Conduct Annual Review. Failure of City to conduct an annual
review shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of
this Agreement nor shall the Developer have or assert any defense to such enforcement due to any
such failure to conduct an annual review. Failure of the City to conduct an annual review shall not
cause the Developer to be in Default under this Agreement, but it does not relieve the obligation
of the Developer to submit the. Annual Review form annually as required by Section 72.1.
7.3 Leeal Actions.
7.3.7 By a Party. 7n addition to any other rights or remedies, any Party may
institute legal action to cure, correct or remedy any Default, to enforce any covenants or
agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other
remedies consistent with the purpose of this Agreement except as limited herein. Any such legal
action shall be brought in the Superior Court for Riverside County, California.
7.3.2 Third Party Claims. City and Developer, at Developer's sole cost and expense,
shall cooperate in the event of any court action instituted by a third party or other govenunental
entity or official challenging, arising from, or related to, the validity of any provision of this
Agreement, any Existing Approvals or any Subsequent Project Approvals and City shall, upon
Developer's request, appear in the action and defend its decision, except that City shall not be
required to be an advocate £or the Developer. To the extent the Developer elects to contest or
defend such litigation challenges or requests that City cooperate in those defense efforts, the
Developer shall reimburse City, within ten (10) business days following City's written demand
therefore, which may be made from time to time during the course of such litigation, all costs
incurred by City in connection with the litigation chatlengq including City's administrative, legal
and court costs, provided that City shall either: (a) elect to joint representation by Developer's
counsel; or (b) retain an experienced litigation attomey, require such attorney to prepare and
comply with a litigation budget, and present such litigation budget to Developer, for information
purposes and not as a cap, prior to incurring obligations to pay legal fees in excess of Thirty
Thousand Dollars ($30,000). Developer shall indemnify, defend, and hold harmless City and its
officials and employees from and against any claims assessed or awarded against City by way of
judgment, settlement, or stipulation. Nothing herein shall authorize Developer to settle such legal
challenge on terms that would constitute an amendment or modification of this Agreement, any
Existing Approvals or any Subsequent Project Approvals, unless such amendment or modification
is approved by City in accordance with applicable legal requirements, and City reserves its full
Legislative discretion with respect thereto. For avoidance of doubt, City shall have ttte right, but
not the obligation, to contest or defend such litigation challenges with counsel selected by the City
in accordance with this Section 7.3.2.
7.4 Indemnification. Developer shall indemnify, defend (with counsel reasonably
acceptable to City) and hold harmless City and City Parties from and against any and all actions,
suits, claims, costs, liabilities, penalties, and damages (including but not limited to attorneys' fees
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and costs) <collectively, "Claims"), including Claims for any bodily injury, death, or property
damage, arising or resulting directly or indirectly from the approval or implementation of this
Agreement, the development or construction of the Project or any portion thereof by or on behalf
of the Developer, Developer's failure to maintain insurance as required by this Agreement, and/or
$om any acts, omissions, negligence or willful misconduct of the Developer, whether such acts,
omissions, negligence or willful misconduct are by the Developer or any of the Developer's
contractors, subcontractors, agents or employees. The foregoing indemnity shall not apply to any
Claims arising or resulting solely from the active negligence or willful misconduct of City or City
Parties.
7.5.1 Prevailine Wade Indemnity. In addition to Developer's indemniTy obligations in
Secflon 7.5, Developer shall also indemnify the City Parties against any claim in connection with
or relating to this Agreement and or the Project (including, without limitation, development or
construction (as defined by applicable laws) and/or any and all public works (as defined by
applicable Laws)), that relates to, or results or arises in any way $om, a Prevailing Wage Action. It
is specifically agreed by the Parties that Developer shall bear all risks of payment or non-payment
of prevailing wages under ail Laws, specifically including California law and/or Federal law and/or
the implementation of Labor Code Section 1781, as the same may be amended from time to time,
and/or Davis Bacon and/or any other similar Law. With respect to The foregoing, the Developer
shall be solely responsible, expressly or impliedty and legally and financially, for determining and
effectuating compliance with all applicable laws relating to public works requirements, prevailing
wage laws, and labor laws and standards, and the City makes no representation, either legally
and/or fmancially, as to the applicability or non -applicability of any laws to this Agreement or the
Project, including the construction or development of the Project and each portion
thereof. Developer expressly, knowingly and voluntarily acknowledges and agrees that the City
has not previously represented to the Developer or to any representative, agent or affiliate of
Developer, or any contractoz(s) or any subcontmctor(s) for the constrnction or development of the
Project, in writing or otherwise, in a call for bids or otherwise, That the work and construction of
the Project, and each portion thereof, is (or is not) a "public work," as defimed in Section 1720 of
the Labor Code or under Davis -Bacon.
7.5 Dispute Resolution. As an alternative procedure, in an action by the City against
Developer or in an action by the Developer against the City hereunder, the Parties each in its own
sole and absolute discretion may mutually agree that the action be heard by a referee pursuant to
Code of Civi] Procedure section 638 ofseq. If the Parties do so agree in their sole discretion, they
shall use their best efforts to agree upon a single referee who shall then try all issues, whether of
fact or law, and report a finding and judgment thereon and issue all legal and equitable relief
appropriate under the circumstances of the controversy before him or her. If the Developer and
City are unable to agree upon a referee within ten (1 O) days of a written request to do so by either
Party, the Parties, each in its sole discretion, may mutually elect to have a referee appointed
pursuant to section 640 of the Code of Civil Procedure. The cost of such proceeding (exclusive of
the attorneys {ees and cost ofthe Parties) shall be borne equally by the Parties. Any referee selected
pursuant to this Section 7.5 shall be considered a temporary judge appointed pursuant to Article 6,
section 21 of the California Constitution. In the event that an alternative method of resolving
disputes concerning the application, enforcement or interpretation of a development agreement is
provided by legislative or judicial action aRer the Effective Date, the Parties may, by mutual
agreement, select such alternative method. Notwithstanding the foregoing, alternative dispute
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resolution, as described in this Section 7.5, is an optional remedy under this Agreement and where
a Party asserting an action wishes to do so, that Party may bring a legal action as set forth in Section
7.3 without first engaging in alternative dispute resolution. Likewise, the Party against whom the
action is asserted shall be under no obligation to have such action heard by a referee or io seek
resolution of the action through any other alternative dispute resolution described above.
7.6 Termination of A¢eement. This Agreement is terminable: (i) by mutual written
consent o£ the Parties, or (ii) by any Party following an uncured Default by another Party under
this Agreement, subject to the procedures and ]imitations set {orth in this Agreement Any
obligations of indenmification and defense relating to matters arising before termination of this
Agreement, by expiration of its Term or otherwise, shall survive termination of this Agreement.
Except as otherwise set forth in this Agreement, if this Agreement is terminated by mutual written
consent of the Parties, no Party shall have any further rights or obligations under this Agreement.
Both Parties waive, with respect to termination of this Agreement by mutual written consent of the
Parties, any claims for damages arising out of the termination of this Agreement. Nothing herein
contained shall release or excuse Developer in the performance of its obligations to indemnify and
defend the City as provided in this Agreement. Upon termination of this Development Agreement,
a written statement acknowledging such termination shall be recorded by City in the OfFicial
Records.
ARTICLE 8. ASSIGNMENTS
8.1 Subsequent Develonment A¢reements. Consistent with all requirements of the
Development Agreement Law, a subsequent Development Agreement may be entered into at any
rime upon the mutual written consent of the parties, including at such time as the Developer's
Subsequent Project Approvals have been ganted.
82 Assi¢nrnent. This Agreement may be assigned by the Developer to any party or
parties purchasing all or any part of the Property, or any interest therein pursuant to the provisions
of this Paragraph. Developer's assignment or transfer of any rights, duties or obligations under
this Agreement, shall be subject to the prior written approval of the City, which shall not be
unreasonably withheld, conditioned or delayed. Prior to any assignment, or transfer of any rights,
duties or obligations by Developer under this Agreement, to any party or parties to whom all or
any portion of the Property, or interest therein, is conveyed, the Developer shall present such
information to the City as shall reasonably be necessary to demonstrate to the City's reasonable
satisfaction that the proposed assignee has the Financial ability and experience to fu1P11 those
specific rights, duties and obligations under this Agreement that the transferee will assume. Within
five (5) business days of receipt of written notice from Developer of its intention to assign rights
under this Agreement to a designated third party, City shall provide Developer with a written
description of the in£orrnation the City needs to review. Upon receipt of the required information,
City shall have thirty (30) calendar days to respond and approve or disapprove the proposed
assignee, provided that the City's approval may not be unreasonably withheld, conditioned or
delayed (an assignee so approved by the City is hereina8er referred to as a "Quali£ed Transferee").
Failure of the City to respond within The 30 calendar day period shall be deemed an approval
provided that Developer also provides the City with a written notice in at least 14 point, bold font
which contains the following statement:
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'•FAILURE TO APPROVE OR DISAPPROVE THE REQUESTED MATTER
WITHIN THIRTY (30) CALENDAR DAYS AFTER YOUR RECEIPT OF THIS
REQUEST SHALL SE DEEMED AN APPROVAL OF THE SAME PURSUANT TO
SECTION 8.2 OF TILE DEVELOPMENT AGREEMENT.".
8.4 Assimntent to Master Property Owners' Association. The City and Developer agree
that any of the Developer's on -going ownership, operation and maintenance obligations with
respect to private streets, common azeas, open space, and other onsite public improvements
described in the Project Approvals may be assigned to one or more Master Property Owners'
Associations) to be established by the Developer; provided, however, that such on -going
obligations shall be documented in recorded conditions, covenants and restrictions in a form that
is reasonably acceptable to the City and approved (prior to the formation of the association, by
City and further provided that such assignment to a Master Property Owner's Association shall be
preceded by a demonstration to the satisfaction of the CiTy that such assignee has the capacity and
£financial abiliTy to assume and commitment to perform the Developer's obligations hereunder.
8.5 Assienment to Financial Institutions. Notwithstanding any other provisions of this
Agreement, the Developer may collaterally assign all or any part of its rights and duties under this
Agreement to any financial institution from which any Developer has borrowed funds for use in
constmcting the improvements contemplated in this Agreement or otherwise developing the
Property. The assigning Developer shall provide a complete copy of any such financing
assignment to City within fourteen (14) days following execution thereof. Assignments pursuant
to this Section 8.5 shall not require the City's consenT; provided, however, that the CiTy shall have.
no obligations to a financial institution that is an assignee under this Paragraph unless and until the
financial institution assumes in writing the obligations under this Agreement.
8.6 Assumption o{Assiened Obligations: Release of Assimor. Subject to the provisions
and conditions o£ Section 8.5 and this Section 8.6, upon the Assignrnent of any or all of the rights,
duties, obligations or interests under this Agreement or other of the Project Approvals and receipt
by City of the fully executed assignment and assumption agreement as provided for herein, the
assignor (e.g., Developer) shall be released from those obligations under this Agreement and the
Project Approvals that are specified in the assumption agreement as having been assigned to and
assumed by the assignee.
Upon providing such assignment and assumption agreement to the City, (i) any Default by
an assignee o£any rights, duties, obligations or interests so assigned and assumed by the assignee
shall not thereby constitute a Default by the assignor with respect to the rights, duties, obligations
or interests not assigned and (ii) any Default by the assignor o£ any rights, duties, obligations or
interests not so assigned shall not thereby constitute a Default by the assignee with respect to the
rights, duties, obligations or interests so assigned and assumed. The Parties to the assignment and
assumption agreement shall address in detail whether and how each obligation and right set forth
in this Agreement and in the other Project Approvals shall be divided, allocated, assigned or
otherwise assigned,. in whole or in part, among the assignor and assignee; if requested by an
assignor and assignee, City agrees to assist the assignor and assignee (including attendance at
meetings), at assignor's expense, in determirting how each obligation and right set forth in this
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Agreement and the other Project Approvals can be described and allocated in the assignment and
assumption agreement so as to avoid confusion later regarding what obligations and rights have
and have not been assigned. The assignment and assumption shall he in the form attached as
Exhibit C and shall be recorded on the portion of the Property to which the assigrrrrrent applies_
8.7 Successive Assimnent. In the event there is more than one Assignment under the
provisions of this Article 8, the provisions of this Article 8 shall apply to eacfi successive
Assignment and Assignee_
8.8 Excluded Transfers_ Notwithstanding the foregoing, the provisions of this
Agreement shall terminate with respect to any individual lot and such lot shall be released from
and shall no longer be subject to this Agreement (without the execution or recordation of any
further document or the taking of any further action) upon the satisfaction of all of the following
conditions ("Excluded Transfers"):
(a) the lot has been £nally subdivided and sold or leased (for a period longer
than one (1) year) to a member of tfie public or any other ultimate user; and
(b) a certiFcate of occupancy has been issued for the building or buildings on
the lot or a final inspection of the buildings) has been approved by City.
The City shall cooperate with Developer, at no cost to the City, in executing in recordable form
any document that Developer (including any successor to the title of Developer in and to any of
the aforedescribed lots) may submit to confirm the termination of this Agreement as to any such
lot. As to such Excluded Transfers, this Agreement shall not run with the land, but shall be
automatically terminated.
ARTICLE 9. GENERAL PROVISIONS
9.1 Compliance With Laws. Developer, at its sole cost and expense, shall comply with
the requirements of, and obtain all permits and approvals requaed by local, State and Federal
agencies having jurisdiction over the Project. Furthermore, the Developer shall carry out the
Project work in conformity with all Applicable Law and applicable state or Federal labor laws and
standards; applicable building, plumbing, mechanical and electrical codes; and all applicable
disabled and handicapped access requirements, including as applicable the Americans With
Disabilities Act, 42 U.S.C. section 12101, et seq., Government Code section 4450, el seq.,
Government Code section 11135, ez seq., and the Unruh Civil Rights Act, Civil Code section 51,
et seq.
9.2 Mortgagee Protection.
9.2.1 Mortgagee Protected. This Agreement shall be superior and senior to any
lien placed upon the Property or any portion thereof after the date of recording this Agreement,
including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing,
no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in
good faith and for value, but all of the terms and conditions contained in this Agreement shall be
binding upon and effecflve against and shall rura to the benefit of any person or entity, including
any deed or trust beneficiary or mortgagee ("Mortgagee"), who acquires title or possession to the
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Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure or
otherwise. Developer shall have the right, at any time and from time to time, to grant one or more
Mortgages encumbering all or a portion of Developer's interest in the Property or portion thereof
as security for one or more loans. City acknowledges that the lenders providing such financing
may require certain Agreement interpretations and upon request, from time to time, City shall at
no cost to City meet with Developer and representatives of such lenders to consider any such
request for interpretation. City shall not unreasonably withhold its consent to any such requested
inteapretation. Developer shall provide the City with a copy ofthe deed o£trust or mortgage within
ten (1 O) days aRer its recording in the Official Records; provided, however, that the Developer's
Failure to provide such document shall not affect any Mortgage, including without limitation, the
validity, priority or enforceability of such Mortgage.
9.2.2 Mortgagee Not Obli¢ated. Notwithstanding the provisions of Section 9.2.1
above, no Mortgagee (including one who acquires title or possession to the Property, or any portion
thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, eviction or
otherwise) stall have any obligation to construct or complete construction of improvements, or to
guarantee such construction or completion; provided, however, that a Mortgagee shall not be
entitled to devote the Property to any use except in full compliance with this Agreement and the
other Project Approvals nor to construct any improvements thereon or institute any uses other than
those uses or improvements provided for or authorized by this Agreement, or otherwise under the
Project Approvals. Except as otherwise provided in this Section 9.22 and Section 8.8, all o£the
terms and conditions contained in this Agreement and the other Project Approvals shall be binding
upon and effective against and shall run to the benefit of any person or entity, including any
Mortgagee, who acquires title or possession to the Property, or any portion thereof.
9.2.3 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee
requesting a copy of any Notice of Default given to Developer hereunder and specifying the
address for service thereof, then City agrees to use its diligent, good faith efforts to deliver to such
Mortgagee, concurrently with service thereon to the Developer, any Notice of Default given to
Developer. Each Mortgagee shall have the right during the same period available to the Developer
to cure or remedy, or to commence to cure or remedy, the event of Default claimed or the areas of
noncompliance set forth in City's Nonce of Default. Ifa Mortgagee is required to obtain possession
in order to cure any Default, the time to cure shall be tolled so long as the Mortgagee is attempting
to obtain possession, including by appointment of a receiver or foreclosure but in no event may
this period exceed one hundred twenty (120) days from the City's Notice of Default.
9.2.4 No Supersedure. Notting in this Section 9.2 shall be deemed to supersede
or release a Mortgagee or modify a Mortgagee's obligations under any subdivision or public
improvement agreement or other obligation incurred with respect to the Project outside this
Agreement, nor shall any provision of this Section 9.2 constitute an obligation of City to such
Mortgagee, except as to the notice requirements of Section 9.5.
9.3 Amendments to Aseement. The Parties agree that they will make reasonable
amendments to this Agreement, at the expense of the Developer, to meet the reasonable
requirements of any lender or mortgagee for the Project. For the purposes of this Section, a
reasonable amendment is one that does not relieve the Developer of any of its material obligations
29
3354837.v20
under this Agreement nor impair the ability of the City to enforce and/or obtain the benefits
provided to the City under the terms of this Agreement.
9.4 Covenants Binding on Successors and Assims and Run with Land. Except as
otherwise more specifically provided in this Agreement, including but not limited to the exceptions
described in Section 5.8, this Agreement and all of its provisions, agreements, rights, powers,
standards, terms, covenants and obligations, shall be binding upon the Parties and their respective
successors (by merger; consolidation, or otherwise) and assigns, and all other persons or entities
acquiring the Property, or any interest therein, and shall inure to the benefit of the Parties and their
respective successors (by merger, consolidation or otherwise) and assigns, as provided in
Government Code section 65868.5.
9.5 Notice. Any notice, demand or request, which may be permitted, required or desired
to be given in connection herewith, shall be given in writing and duetted to the City and Developer
as follows:
If to the City:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Atm: City Manager
Telephone: (951) 672-6777
Facsimile: (951) 679-3843
With copies to:
CiTy of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: Jeff Melching, Esq_, City Attorney
Telephone: (951j 672-6777
Facsimile: (951) 679-3843
IT to the Developer:
Cimarron Ridge, LLC
2900 Adams Street, Suite C-25
Riverside, CA 92504
Attn: Michael C. Van Daele
Telephone: (951) 354-2121
Facsimile: (951j 354-2996
With copies to:
Nossan�an LLP
18101 Von Karman Avenue, Suite 1800
hvine, CA 92612
Attn: John P. Erskine, Esq.
Telephone: (949) 833-7800
Facsimile: (949) 833-7878
Notices to be deemed effective if delivered by certified mail, return receipt requested,
commercial courier or by facsimile, with delivery to be effective upon verification of receipt,
except as to facsimile if confirmation is aRer 5:00 p.m., then deemed received the following
30
3354a37.v20
business day. Any Party may change its respective address for notices by providing written notice
of such change to the other Parties.
9.6 Counteroarts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all o{which together shall constitute the same instrument.
9.7 Waivers. Notwithstanding any other provision in this Agreement, any failures or
delays by either Party in asserting any of its or their rights and remedies under this Agreement
shall not operate as a waiver of any such rights or remedies, or deprive any such Party of its right
to institute and maintain any actions or proceedings which it may deem necessary to protect, assert
or enforce any such rights or remedies. A Party may specifically and expressly waive in writing
any condition or breach of this Agreement by another Party, but no such waiver shall constitute a
further or continuing waiver of any preceding or succeeding breach o£the same or any other
provision. Consent by one Party to any act by another Party shall not be deemed to imply consent
or waiver of the necessity o£ obtaining such consent £or the same or similar acts in the future.
9.8 Construction of Agreement. Both Parties have been represented by counsel in the
preparation and negotiation of this Agreement, and this Agreement shall be construed according
to the fair meaning of its language. The rule of construction to the effect that ambiguities aze to be
resolved against the drafting parry shall not be employed in interpreting this Agreement. Unless
the context cleazly requires otherwise, <a) the plural and singular numbers shall each be deemed io
include the other, (b) the masculine, feminine, and neuter genders shall each be deemed to include
the others; (c) "shall," "will," or "agrees" aze mandatory, and "may" is permissive; (d) "or" is not
exclusive; (e) "includes" and "including" are not limiting; and (t) "days" means calendar days
unless specifically provided otherwise. Section headings in this Agreement are for convenience
only and are not intended to be used in interpreting or construing the terms, covenants or conditions
of this Agreement.
9.9 Severability_ If any term or provision of this Agreement, or the application of any
term or provision of this Agreement to a specific situation, is found by a court of competent
jurisdiction to be invalid, or unenforceable, in whole or in part for any reason, the remaining terms
and provisions of this Agreement shall continue in full Force and effect unless an essential purpose
of this Agreement would be defeated by loss of the invalid or unenforceable provisions, in which
case any Party may terminate this Agreement by providing written notice thereofto the other Party.
9.10 Time. Time is o£ the essence of this Agreement. All references to time in this
Agreement shall refer to the time in effect in the State of California.
9.11 Extension of Time Limits. The time limits set forth in this Agreement may be
extended by mutual consent in writing of the Parties in accordance with the provisions of this
Agreement.
9.12 Signatures. The individuals executing this Agreement represent and warrant that
they have the right, power, legal capacity, and authority to enter into and to execute this
Agreement on behalf of the respective legal entity of Developer and the City.
9.13 Entire Agreement. This Agreement (including all recitals and exhibits attached
hereto, each of which is fully incorporated herein by reference), integrates all of the terms and
31
3354637.v20
conditions mentioned herein or incidental hereto, and constitutes the entire understanding of the
Parties with respect to the subject matter hereof, and all prior or contemporaneous oral
agreements, understandings, representations and statements, and all prior written agreements;
understandings, representations, and statements are terminated and superseded by this Agreement.
9.14 Estoppel Certificate. The Developer may, at any time, and from time to time,
deliver written notice to the City requesting the City to certify in writing that: (i) this Agreement
is in full force and effect, (ii) this Agreement has not been amended or modified or, if so amended
or modified, identifying the amendments or modifications, and (iii) the Developer requesting such
certificate is not in Default of the performance of its obligations, or if in Default, to describe
therein the nature and extent of any such Defaults. The City Manager shall be authorized to
execute any certificate requested by Developer hereunder. The form of estoppel certificate shall
be in a form reasonably acceptable to City Attorney. The City Manager shall, at no cost to the
CiTy and upon payment of any such costs by Developer, execute and return such certificate within
thirty (30) days following Developer's request therefore. Developer and City acknowledge that a
certificate hereunder may be relied upon by tenants, transferees, investors, partners, bond counsel,
underwriters, bond holders and Mortgagees. The request shall clearly indicate that failure of the
City to respond witrun the thirty (30) day period will lead to a second and final request. Failure to
respond to the second and final request within £Keen (15) days of receipt thereof shall be deemed
approval of the estoppel certificate.
9.15 City Aunrovals and Actions. Whenever a reference is made herein to an action or
approval to be undertaken by City, the City Manager or his or her designee is authorized to act on
behalf of City, unless specifically provided otherwise by this Agreement or Applicable Law, or
the context requires otherwise. Notwithstanding the foregoing, the City Manager may in his sole
and absolute discretion, or upon the request of the City Council, present any action or approval
requested under this Agreement to the City Council for its consideration, acflon, and direction.
9.16 Negation of Partnership. The Parties specifically acknowledge that the Project is a
private development, that no Party to this Agreement is acting as the agent of any other in any
respect hereunder, and that each Party is an independent contracting entity with respect to the
terms, covenants and conditions contained in this Agreement. None of the terms or provisions of
this Agreement shall be deemed to create a partnership between the Parties in the business of the
Developer, the affairs o£the City, or otherwise, or cause them to be considered joint venturers or
members of any joint enterprise.
32
3364637.v20
9.17 Exhibits. The following exhibits are attached to this Agreement and are hereby
incorporated herein by this reference for all purposes as if set forth herein in full:
Exhibit A
Legal Description
Exhibit B
Applicable City Regulations
Exhibit C
Form Assignment and Assumption Agreement
Exhibit D
Annual Review Form
Exhibit E
Development Impact Fees
Exhibit F
Depiction and Estimates £or Light Infrastructure
33
3354837.v20
IN Wl"i'NESS WHEREOF, City and Developer have executed this Agreement as o£ the
date first written above.
APPROVED AS TO FORM:
��i
Je a g, Esq.
C' Attorney
"CITY'•
CITY OF MENIFEE, a munici al corporation
By: �'dL�Y6G
Mayor _ 6
••DEVELOPER••
CIMARRON RIDGE, LLC, a California limited
liability company
By: Van Daele Investment Properties, LLC
Its 1..ra,.� �g Member
Ey. l�__
Its: Cr�.� Gi2 'hr Y`vY
34
335483"r.v20
A notary public or other officer completing this certiticate verifies only the identity of the
individual who signed the document to which this certi£cate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFppORNIA )
COUNTY OF 1� \y Ell{Sla� t ) �.
On NE l"� c\OI before e, Jl.co h\ IJ Notary Public, personally
appeared —Zvho proved to me on the basis o£ satisfactory evidence
to be: the person(yj whose name( is/aresubscribed to the within instrument and acknowledged to me that
he/mot :ara-ecuted the same in his "�-..,�:. authorized capacity�Sj, and that by hisNtey{t-taeir signature�.5)
on the instrument the person(s), or the entity upon behalf o£ which the personylj 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-
WITNES/S/may hand and official se�al�.�' "_" �
SUDirri- *�, t�Ot„n�
Acknowledgemcnt
�3tC6533.1/IManvgvDMS
O ]BSB-0003/5-15-19/mnMj,m
JHOITH q. THOMPSON
Commission A 20NatH
Notaty Public - Geillornia
giysrsltle Comty _
M Comm. Ea bea Nov 3. 20t) �
<seap
Policy No.: 9100�5392-X59
LEGAL DESCRIPTION
EXFIIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF RIVERSIDE, BTATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
PARCEL 4 OF PARCEL MAP NO. 20,285, IN THE C[TY OF PERRIS, COUNTY OF R]VERSIDE, STATE OF
CALIFORNIA, AS SHOWN BV PARCEL MAP ON FILE Ihl BOOK ]32 PAGES 25. 2B AND 20 OF PARCEL
MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL S:
PARCELS I, 2, AND 3 AND LOTS A, Q D, E, F AND G OF PARCEL MAP NO. 14801, IN THE COUNTY OF
RIVERSIDE, STATE OF CALIPOANIA, AS BHOWN BY MAP ON FILE M BOOK 81 PAGE 35 OF PARCEL
MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL C:
PARCELS 1, 2 AND 3 AND LOTS A THAOUGH G, INCLUSIVE, OF PARCEL MAP NO. I4815, IIV THE
COUNTY OP RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP ON PILE IN BOOK 82 PAGE 25 OF
PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORN[A.
PARCEL D:
PARCEL "A" OF LOT LINE ADJUSTMENT NO. 4506, RECORDED SEPTEMBEA 12, 2002 AS INSTRUMENT
NO. 2002-506T24 OF OFFICIAL RECORDS OF RNERS[DE COUNTY, CALIFORNIA, DESCRIBED IId SAID
DOCUMENT AS BEING A PORTION OF SECTION 20, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN
BERNARDINO BASE AND MERIDIAN, BEING A PORTION OF PARCEL 3 AND LOT "E" OF PARCEL MAP
NO. 1116T, AS PER MAP ON FILE IN BOOK 50 PAGES 98 AND 99 OF PARCEL MAPS, AND A PORTION
OF PARCEL 2 AND A PORTION OF LOT ^A" OF PARCEL MAP NO. 22482, AS PER MAP ON FILE IN
BOOK 152 PAGES 60 AND 61 OP PARCEL MAPS, ALL IN THE COUNTY OF RIVERSIDE, STATE
OF CALIFORNIA, ALL OF RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY
DESCRIBED AS POLLOWS:
BEGINNING AT THE CENTER ] ]4 CORNER OF SAID SECTION 20 OP OFFICIAL RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA, BEING THE SOUTHEAST CORNER OF SAID PARCEL 3 OF PARCEL MAP NO.
ai 16T; THENCE SOUTH 89'49' S4" WEST ALONG THE SOUTH LINE OF SAID PARCEL 3, A D3STANCE
OF t290.69 FEET TO THE SOUTHWEST CORNER THEREOF; THENCE NORTH 00^l9' 26" WEST ALONG
THE WEST LINE OF SAID PARCEL 3, A DISTANCE OF 1314.08 FEET TO THE NORTHWEST CORNER
THEREOF; THENCE SOUTH 89^39' 46^ EAST ALONG THE NORTH LINE OF SAID PARCEL 3, A
DISTANCE OF 1301.37 FEET TO THE EAST LINE OF SAID PARCEL 3; THENCE SOUTH 89^4 ]' 06" EAST, A
DISTANCE OF 109.49 PEET TO THE CENTERLINE OF THORNTON AVENUE AS SHOWN ON SAID PARCEL
3 AND THE BEGINNING OFANQN-TANGENT CURVE CONCAVE SOUTHWEST AND HAVING A RADIUS
OF 4000.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 6']^22' 00"
WEST, SAID CURVE BEING THE CENTERLINE OF VALLEY BOULEVARD AS SHOWN ON SAID
PARCEL MAP NO. 22482 OF OFF3CIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA;
ALTA Ownc�b Polley (6-1]-06)
92-031-OB (6/06J
Pnge3
Policy No.: 9300�5392-X59
LEGAL DESCRIPTION
continued)
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE, AN ARC DISTANCE OF 109.20 FEET
THROUGH A CENTRAL ANGLE OF 01�33' S1^, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS
NORTH 68'S5' S1" EAST TO A POINT IN THE CENTERLINE OF SAID THORNTON AVENUE HEREINAPTER
REFERRED AS POINT "A"; THENCE SOUTH 68'S5` 5 i" WEST, A DISTANCE OF 55.00 PEET; THENCE NORTH
64^09' 28" WEST, A DISTANCE OF 3423 FEET; THENCE SOUTH 68^03' 15" WEST, A DISTANCE OF 82.81
FEET; THENCE SOUTH 23^34. 58" WEST, A DISTANCE OF 21.02 PEET; THENCE SOUTH 20^53' 19" WEST, A
DISTANCE OF 20.83 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWEST AND
HAYING A RADIUS OF 3824.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE, AN
ARC DISTANCE OF 478.72 FEET THROUGH A CENTRAL ANGLE OF ')O 10. 22"; THENCE DEPARTING SAID
CURVE SOUTH 76�1']' 03" WEST, A DISTANCE OF 60.00 FEET; THENCE SOUTH 06�39' S'J'• WEST, A
DISTANCE OF 122.96 PEET; THENCE- SOUTH 11^21. 21" EAST, A DISTANCE OF 219.49 FEET TO A POINT
ON THE EAST LINE OF SAID PARCEL 3; THENCE SOUTH 00`l0' Ol" WEST ALONG THE SAID EAST LINE
OF SAID PARCEL 3, A DISTANCE OF 413.49 FEET TO THE POINT OF BEGINNING.
EXCEPTING A 1/2 INTEREST IN ALL OIL AND MINERAL RIGHTS LOCATED ON SAID PROPERTY, WITH
THE RIGHT OF ENTRY ON SAID PREMISES FOR MINING AND AEMOVi1VG SAME, AS RESERVED INDEED
FROM ALICE O. HANSEN AND A. A. HANSEN, RECORDED NOVEMEER 4, 1920IN BOOK 539, PAGE 292 OP
DEEDS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA;
ALSO EXCEPTING 50^/o OP ALL OIL, OAS, MINERAL, URANIUM AND OTHER HYDROCARBON
SUBSTANCES 3N AND UNDER SAID LAND, AS RESERVED BY RANCH DEVELOPMENT CORPORATION,
A CORPORATION, IN pEED RECORDED FEBRUARY 9, 195B IN BOOK 1860, PAGE 508 OFOFFICIAL RECORDS
OFRI V ERSIDE COUNTY, CALIFORNIA.
PARCHL £
THE NORTHWEST QUARTER OF THE SOUTH WEST QUARTER OF SECTION 17, TOWNSHIP 5 SOUTH, RANGE
3 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF RIVERSIDE, STATE OF
CALIFOANIA, ACCORDING TO 1'I-IE'OFPICIAL PLAT THEREOF.
EXCEPT THE SOUTH VSTH OF THE NORTHEAST QUARTER OF NORTHWEST QUARTER OF NORTH WEST
QUARTER OF SOUTH WEST QUARTER OF SAID SECTION.
ALSO EXCEPT THAT PORTION CONVEYED TO THE COUNTY OF RIVERSIDE BY DEED RECORDED
SEPTEMBER 2T, 1950 iIQ BOOK 1207 PAGE 293 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY,
CAL[FORNIA.
PARC6LF.�
THE SOUTH 1/5 OF THE NORTHEAST I/4 OP THE NORTHWEST 114 OP THE NORTHWEST ]/4 OF THE
SOUTHWEST 1/4 OP SECTION 17, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN HERNARDINO BASE AND
MERIDIAN, 1N THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL
PLAT THEREOF.
ALTA OwneYs Policy (6-(]-06)
02-03t-O6 (6/p6)
Pege3
Policy No.:
LEGAL DESCRIPTION
(COTLlill30CI]
PARCEL G:
THE WEST HALF OF THE SOUTH ONE -FIFTH OF THE SOUTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 19, TOWNSHIP
5 SOUTH, RANGE 3 WEST, SAN BERNARDINO EASE AND MERIDIAN, 1N THE COUNTY OF RIVERSIDE, STATE
OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLATTHEREOF.
PARCEL H:
THE WEST HALF OF THE EAST HALF OF THE NORTH ONE-HALF OF THE SOVTH TWO -FIFTHS OF THE
NORTH HALF OF THE NORTHWEST QUARTER OP THE NORTH HALF OF THE EAST HALF OF THE
SOUTHWEST QUARTER OF SECTION 17, TOWNSHIP 5 SOUTH, RANGE 3 WEST, IN THE COUNTY OF
R[ VERS[DE, STATE OF CALIFOANIA, ACCORDRV G TO THE OFPICIAL PLAT THEREOF.
PARCELt
THE NORTHEAST QUARTER OP THE SOUTH WEST QUARTER OF SECTION 1 �, TOWNSHIP 5 SOUTH, RANGE
3 WEST, SAN BERNARDIIJO BASE AND MERIDIAN, IN THE COUNTY OF RIVERSIDE, STATE OF
CALIPORNIA, AS SHO WN BYUNITED STATES GOVERNMENT SURVEY.
EXCEPTING THEREPROM THE WEST HALF OF THE SOUTH ONE-PIFTH OF THE SOUTHWEST
QUARTER OP THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF SAID SECTION I'], AND THE WEST ONE-HALP OP THE NORTH ONE-HALF OF THE
SOUTH TWO-PIFTHS OP THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF THE SOVTHWEST QUARTER OF SAID SECTION 1'], AND THE EAST HALF OF
THE SOUTH HALP OP THE NORTH TWO -FIFTHS OP THE NORTHEAST QUARTER OF THE SOUTHEAST
QUARTER OP THENORTHEASTQUARTEROFTHESOUTHWESTQUARTER.
PARCRLJ:
THE EAST ONE HALP OF THE SOUTH ONE HALF OF THE NORTH TWO FIFTHS OF THE NORTHEAST ONE
QUARTER OF THE SOUTHEAST ONE -QUARTER OP THE NORTHEAST ONE- QUARTER OF THE
SOUTHWEST ONE -QUARTER OF SECTION 19,TOWNSHiP 5 SOUTH, RANGE 3 WEST, IN THE COUNTY OF
RIVERSIDE, STATE OF CALIPORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOP.
PARC&L K: ONT6NTlONALLYOMITTPO.J
ALTA Owaar's Policy
(6-17-06)
92-031-06 (6/06) Page 4
(conxinued)
PARCEL L:
THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 1T,TOWNSHIP 5 SOUTH, RANGE
3 WEST, SAN BERNARDINO AND MERIDIAN, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
EXCEPTING THEREFROM THAT PORTION THEREOF WHICH 15 CONTAINED IN A 60 FOOT WIDE STRIP
OF LAND MEASURED AT RIGHT ANGLES AND MORE PARTICULARLY DESCRIBED AS 30 FEET WIDE ON
EACH SIDE OF THE POLLO WING DESCRIBED CENTER LINE:
BEGINNING AT A POINT ON THE SOUTH LINE OF SA[p SECTION ]O FROM WHICH POINT THE
SOUTHWEST CORNER BEARS NORTH 89 DEG. 30' WEST, TI.86 FEET; THENCE NORTH 33 DEG. 34' EAST,
63.80 FEET; THENCE NORTHEASTERLY ON THE ARC OF A 600 FOOT CURVE CONCAVE TO THE
NORTHWEST THROUGH AN ANGLE OF 20 DEG- 42' FOR AN ARC DISTANCE OF 2I6_T7 FEET; THENCE
NORTH 12 DEG. 52' EAST, 962-05 FEET; THENCE NORTHERLY ON THE ARC OF A 3,000 FOOT RADIUS CURVE
CONCA VP TO THE WEST THROUGH AN ANGLE OF 23 DEG. SI' FOR AN ARC DISTANCE OP 416.26 FEET;
THENCE NORTH 10 DEG. 59' WEST, 144.23 PEST; THENCE NORTHWESTERLY ON THE ARC OF A 2,000
FOOT RADIUS CURVE CONCAVE TO THE SOUTHWEST THROUGH AN ANGLE OF 06 DEG. 09' FOR AN
ARC DISTANCE OF 214.88 FEET, THENCE OF 214.88 FEET; THENCE NORTH 19 DEG. 08' WEST, 921-88 FEET;
THENCE NORTHERLY ON THE ARC OFA 3,000 FOOT RADIUS CURVE CONCAVE TO THE EAST THROUGH
AN ANGLE OF IT DEG- 29' FOR AN ARC DISTANCE OF 305.14 FEET TO A POINT ON THE WEST LINE OF
SAID SECTION 10 PROM WHICH POINT THE WEST CORNEA BEARS SOUTH 00 DEG- 2I' WEST, 500.42
FEET; THENCE ALONG THE WEST LINE OP SAID SECTION 19 TO THE NORTH WEST CORNER THEREOF
AS CONVEYED TO THE COUNTY OF RIVERSIDE BY DEED RECORDED SEPTEMBER 20, 1950 IN BOOK
3209 PAGE 293 OP OPFICIALRECORDS OFRIVERSIDE COUNTY,CALIFORNIA;
ALSO EXCEPTING THEREFROM THE NORTHERLY 360 FEET OF THE SOUTHERLY 390 FEET OF SAID LAND
WHICH WAS CONDEMNED BY SOUTHERN CALIFORNIA EDISON COMPANY, A CORPORATION, FINAL
DECREE OF CONDEMNATION 6NTEREO IN THE SUPERIOR COURT FOR THE COUNTY OF RIVERSIDE,
CASE NO. 98018, A CERTIFIED COPY THEREOF BEING RECORDED NNE 21, I973AS INSTRUMENTN0.80695
OP OFFICIAL RECORDS OF RIV ERSIDE COUNTY, CALIFORNIA.
PARCEL M:
THE NORTHERLY 360 FEET OF THE SOUTHERLY 390 FEET OF THE SOUTHWEST ONE -QUARTER OF THE
SOUTHWEST ONE -QUARTER OF SECTION IT, TOWNSHIP 5
SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLATTHEREOF.
EXCEPTING THEREFROM THAT PORTION THEREOF LYING WITHIN A STRIP OF LAND, 60 FEET WIDE,
AS CONVEYED '1'O THE COUNTY OF RIVERSIDE BY PEED RECORDED SEPTEMBER 29, 1950IN BOOK 1200
PAGE 293 OF OFFICIAL RECORDS OP RI VERSIDE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THAT PORTION AS CONVEYED TO THE COUNTY OF RIVERSIDE BY DEED
RECORDED AUGUST 19, 1991 AS INSTRUMENT NO. 285498 OF OFFICIAL RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA.
ALTA Ownc�•e Potlry (6-10-06)
92-03 L06 (6/06)
Pnane
<continued)
ALSO EXCEPTING THEREFROM ALL URANIUM, THORIUM AND OTHER FISSIONABLE
MATERIALS, ALL OIL, OAS, PETROLEUM, ASPHALTUM, AND OTHER HYDROCARBON
SVBSTANCES AND OTHER MINERALS AND MINERAL ORES OF EVERY KIND AND
CHARACTER, WHETHER SIMILAR TO THESE HEREIN SPECIFIED OR NOT, WITHIN OR
UNDERLYING, OR WHICH MAY BE PRODUCED FROM THE HERE[NBEFORE DESCRIBED
LAND, TOGETHER WITH THE RIGHT TO USE THAT PORTION ONLY OF SAID LAND WHICH
UNDERLIES A PLANE PARALLEL TO AND FIVE HUNDRED (SOO) FEET BELOW THE
PRESENT SURFACE OF SAID LAND, FOR THE PURPOSE OF PROSPECTING FOR,
DEVELOPING AND/OR EXTRACTING SAID URANIUM, THOAiUM AND OTHER
PISSIONABLE MATERIALS, OIL, GAS, PETROLEUM, ASPHALTUM AND OTHER MINERAL
OR HYDROCARBON SUBSTANCE-5 FROM SAID LAND, IT BEITIG EXPRESSLY
UNDERSTOOD AND AGREED THAT SAID SOUTHERN CALIFORN[A EDISON COMPANY,
ITS SUCCESSORS AND ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON THE SURFACE
OF SAID LAND OR TO USE SAID LAND OR ANY PORTION THEREOF TO SAID DEPTH OF
FT VE HUNDRED (500) FEET FOR ANY PURPOSE WHATSOEVER.
PARCEL N:
LOTS B AND C OF PARCEL MAP NO.
1480I, iN THE COUNTY OF RIVERSIDE, STATE OF
CALIPORNIA, AS PEA MAP ON FILE
IN BOOK 81
PAGE 35 OF PARCEL MAPS,
RECORDS OF RIVERSIDE COCINTY, CAI..IFORNIA.
Assessors Parcel Number: 335-430-017-2;
335-070-039-0;
335-070-040-0;
335-070-041-1;
335-070-036-7;
335-070-037-8;
335-070-037-8;
335-070-038-9;
' 335-070-046-6;
335-070-047-7;
330-220-008-0;
330-220-011-2
335-070-048-8;
330-220-012-3;
330-220-013-4;
330-220-004-6
330-220-005-7;
330-220-010-I;
330-220-007-9;
330-230-003-6;
330-230-015-7;
330-230-029-0;
330-230-036-6;
330-230-037-7;
330-230-038-8;
330-230-039-9;
330-230-010-2;
330-230-032-2;
330-230-035-5;
330-230-013-5;
330-230-034-4;
330-230-040-9;
330-230-040-9;
330-230-041-0
END OF LEGAL DESCRIPTION
Exhibit
3354837.�(LO
EXHIBIT "B"
APPLICABLE CITY REGULATIONS
The {ollowing shall constitute the Applicable City Regulations for purposes of trtis
Agreement:
1. City of Menifee General Plan, adopted 2013
2_ Menifee Municipal Code
3. Riverside County Ordinance No. 460, as adopted by the City of Menifee
Exhibit
3354937.v20
EXI-IIBIT "C"
FORM ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit C
3354H37.v20
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: City Clerk
(SPott Above ]h!s Llnejos Xecarder's Ux Onfy)
Exempt from Reeortling Fee per Gwvnmen[ Catle §20363
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS PAATLAL ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agre¢ment") is entered
into as of the day of November, 201Q by and among CIMARRON RIDGE, LLC, a
Wisconsin limited liability company ("Assignor"), a
("Assignee"), and CITY OF MENIFEE, a municipal corporation of the
State of California ("City").
X ECITALS
A_ Assignor (in its capacity as "Developer^) has entered into a Development Ageement with
the City effective 2017 (Recorder's Document No. ) (•'Development
Agre¢ment") to facilitate the development ofthat certain real property owned by Developer within the City
of Menifee, State of Califomis, which is legally described in Exhibit A to the Development Agreement
("Property"). Capitalized terms used but not oth¢rwise de£ned herein shall have the meaning ascribed to
such terms in the Development Agreemont.
B. Assignor is the fee owner of the approximately _acre portion of the Properly, more
particularly described in Esshibit 1 attached hereto and incorporeted herein ("Assigned Property").
C. Assignor desires to transfer its interest in the Assigned Property to Assignee concurrently
with execution of this Ageement and Assignee desires to so acquire such interest in the Assigned Property
from Assignor.
D_ Article 8 of the Development Agreement provides that Developer may assign less than all
of its rights and obligations under the Development Agreement to another party who acquires a portion of
the Property, provided that (i) the Assignor shall have provided to City at least tan (30) days prior written
notice, (ii) the Assignor and Assignee document the assignment in an agreement substantially in the form
o£Exhibit C to the Development Agreement and that such assignment and assumption agreement provides
that the Assignee agrees in writing to be subject to all of the applicable provisions of the Development
Agreement and provides for the allocation of responsibilities and obligations between the Assignor and
Assignee as to the Assigned Property, and (iii) this Agreement shall be recorded in the in the Official
Records of Riverside County ("OfCcial Recorda") as an encumbrance on the Assigned Property.
E. Assignor has provided the required written notice to City of its intent to enter into an
assignment and assumption agreement as required by Section 8.2, this Agreement is substantially in the
Form of Exhibit C to the Development Agreement, provides that the Assignee agrees in writing to be subject
10216532. ]/iManarf�MS
03t858-0003 Partial Assignment
to all of the applicable provisions of the Development Agreemenq provides for the allocation of
responsibilities and obligations between the Assignor and Assignee as to the Assigned Property, and shall
be recorded in the Official Records as an encumbrance on the Assigned Property.
F. Assignor desires to assign to Assignee and Assignee desires to assume the rights and
obligations of Assignor under the Development Agreement applicable to the Assigned Property as provided
in this Agre¢ment. Upon execution of this Agreement and transfer to Assignee of legal title to the Assigned
Property, Assignor desires to be released from all obligations under the Development Agreement as to the
Assigned Property as provided in this Agreement.
A G R E E M E N T
NOW, THEREFORE, Assignor, Assignee and City hereby agree as follows:
1. Assi¢nnlent by Assignor. Assignor hereby assigns, transfers and grants to Assignee, and
its successors and assigns, all of Assignor's rights, title and interest and obligations, duties,
responsibilities, conditions and restrictions under the Development Agreement that are applicable
tq serve, benefit and/or relate to the Assigned Property (collectively, "Assigned Rights and
Obligations"). The term "Assigned Rights and Obligations," however, shall not include those
rights and obligations provided in subsection 1(i)-(iv) below which shall not be assigned to the
Assignee but shall be expressly retained by Assignor.
(1)
(11)
(111) .n5.
Assignor and Assignee further agree and acknowledge that any Assigned Rights and Obligations
are to be interpreted (1) to be strictly limited to Assignee's ownership and development of the
Assigned Property and (2) such that Assignee shall not be obligated to incur, nor reimburse
Assignor for, any cost or expense arising from any Assigned Rights and Obligations to the extent
they continue to relate to, serve, or benefit Assignor's Property.
2. Acceptance and Assumption by Assignee. Assignee, for itself and its successors and
assigns, hereby accepts the assignment of, and assumes all of, the Assigned Rights and
Obligations, accruing after (and not prior To) the Effective Date (defined in Section 1'7 below).
Assignee agrees, expressly for the benefit of City, to comply with, perform and execute all of the
covenants and obligations of Assignor arising from or under the Development Agreement as to the
Assigned Property and Assigned Rights and Obligations.
3. Release o£ Assignor. Assignee and City hereby fully release Assignor from all of the
Assigned Rights and Obligations. Both Assignor and Assignee acknowledge that this Agreement
is intended to fully assign the Assigned Rights and Obligations to Assignee, and it is expressly
understood that Assignor shall not retain any of the Assigned Rights and Obligations.
4. Substitution of Assienor. With respect to the Assigned Rights and Obligations, Assignee
shall be substituted for and replace Assignor in the Development Agreement as to the Assigned
Property. Whenever the term "Cimarron Ridge, LLC" appears in the Development Agreement
with respect to the Assigned Rights and Obligations as they relate to the Assigned Property, such
term shall hereafter mean Assignee with respect to the Assigned Rights and Obligations.
Whenever the term "Developer" or "Party" appears in the Development Agreement, it shall
102<6532.1 /iMenay¢➢MS
031858-0003 �Z-
hereafter include Assignee as to the Assigned Property. Whenever the term "Project" appears in
the Development Agreement with respect to the Assigned Rights and Obligations, such term shall
be interpreted (based on the context and in order to give effect to the terms and intent of this
Agreement) to include Assignee's proposed development of the Assigned Property in a manner
compliant with the vested rights secured under the Development Agreement.
5. Assignee's Representations and Warranties.
(s) Assignee represents and warrants to City as follows
(i) Assignee is a duly formed within and good standing
under the laws of the Smte of California. The topics of the documents evidencing the
formation of Assignee, which have been delivered to City, are true and complete copies of
the originals, as amended to the date of this Agreement. Assigned has fu71 right, power and
lawful authority to undertake all obligations as provided herein and the execution,
per£ormance and delivery of this Agreement by Assignee has been fully authorized by ail
requisite actions on the part of Assigner.
(ii) Assignee's execution, delivery and performance of its obligations under
this Agreement will not constitute a default or a breach under any contract, agreement or
order to which Assignee is a parry or by which it is bound.
(iii) Assign¢e has not (i) made a g¢nera7 assignment for the benefit ofcreditors,
(ii) filed any voluntary petition in bankruptcy or suffered the £ling o£ any involuntary
petition by Assignee's creditors, (iii) suffered the appointment of a receiver to take
possession of all, or substantially all, of Assignee's assets, (iv) suffered the attachment or
other judicial seizure of all, or substantially all, o£Assignee's assets, (v) admitted in writing
its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension
or composition to its creditors generally.
(iv) As ofthc Effective Dat¢ ofthis Ageem¢nt, Assignee owns fee simple title
to the Assigned Property.
6. Assitmor and Assimee A�eements. Indemnifications and Waivers. Assignor and
Assignee hereby acknowledge and agree that City has not made, and will not make, any
representation or warranty that the assignment and assumption of the Development Agreement
provided for hereunder will have any particular tax implications for Assignor or Assignee.
(a) Assignor and Assignee each hereby waives and roleasrs and each h¢reby agrees to
indemnify and hold City harmless from any and all damages, liabilities, causes of action, claims or
potential claims against City (including attorneys' fees and costs) arising out o£ or r¢sulting from
the assignment and assumption of the Assigned Rights and Obligations.
(b) Assignor acknowledges and agrees that the Assigned Rights and Obligations have
been £ally assigned to Assignee by this Agreement and, accordingly, that Assignee shall have the
exclusive right to assert any claims against City with respect to such Assigned Rights and
Obligations. Accordingly, without limiting any claims of Assignee under the Development
Agreement related to the Assigned Rights and Obligations, Assignor hereby waives any claims or
potential claims by Assignor against City to the extent arising solely out of Assigned Property
and/or Assigned Rights and Obligations.
os�asa-000s -3-
(c) For the Term o£ the Development Agreement, Assignor agrees to end shall
indemnify, defend and hold harmless Assignee, its affi]iated entities and persons, and their
respective members, partners, officers, directors, shareholders, and employees from any claims,
demands, loss, liability, damages, costs or expenses (including attorneys' fees, expert witness fees,
court costs and any and all litigation fees and costs) made against or suffered with regard to any
breach by Assignor of the Development Agreement and/or this Agreement ("Assfgvor
Iademafty^). The foregoing Assignor Indemnity shall be binding on Assignor's assignees,
successors -in -interest, and any person or entity that takes title to any part of the Property.
(d) For the Term ofthe Development Agreement, Assignee agrees to and shall indemnify,
defend and hold harmless Assignor, its affiliated entities and persons, and their respective members,
partrters, officers, directors, shareholders, and employees from any claims, demands, loss, liability,
damages, costs or expenses (including attorneys' fees, expert witness £e¢s, court costs and any and
all litigation fees and costs) mad¢ against or suffered with regard to any breach by Assignee of the
Development Agreement and/or tfiis Agreement ("Assignee Indemnity'•). The foregoing Assignee
Indemnity shall be binding on Assignee's assignees, successors -in -interest, and any person or entity
that takes title to the Assigned Property.
7. Development Agreement in Full Fome and Effect. Except as specifically provided herein
with respect to the assignment, all the terms, covenants, conditions and provisions of the
Development Agreement are hereby ratified and shall remain in full force and effect.
8. Recording. Assignor shall cause this Agreement to be recorded in the Official Records on
the Assigned Property, and shall promptly provide conformed copies of the recorded Agreement
to Assignee and City.
9. Successors and Assigns. Subject to the restrictions on transfer set forth in the Development
Agreement, all of the terms, covenants, conditions and provisions of this Agreement shall be
binding upon and shall inure to the benefit of the Parties hereto and their respective heirs,
successors and assigns.
10. Assi¢nee Address for Notices.
The address of Assignee for the purpose o£ notices, demands and communications under
Section 8.5 of the Development Agreement shall be:
The City shall send a copy of any Notice of Default under Article 7 of the Development Agreement related
to the Property or the Assigned Site to both Assignor and Assignee
11. California Law/Venue. This Agreement shall be construed and enforced in accordance
with the laws of the State of California, without reference to choice of law provisions. Any legal
actions trader this Agreement shall be brought only in the Superior Court in Riverside County,
State of California.
12. Interoretation. All Parties have been represented by counsel in the preparation and
negotiation ofthis Agreement, and this Agreement shall be construed according to the fair meaning
1 H)96533 3M1Menage�MS
033H58-OW3 -4-
of its language. The rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not be employed in interpreting this Agreement. Unless the context clearly
requires otherwise: (a) the plural and singular numbers shall each be deemed to include the ocher;
(b) the masculine, feminine, and neuter genders shall each be deemed to include the others;
(c) "shall," "will,^ or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive;
and (e) "includes" and "including" are not limiting.
13. Headin¢s- Section headings in this Agreement are for convenience only and are not
intended to be used in interpreting or construing the terms, covenants or conditions of this
Agreement.
14. Severability. Except as otherwise provided herein, if any provisions) of this Agreement
is (are) held invalid, the remainder of this Ageement shall not be affected, except as necessarily
required by the invalid provisions, and shall remain in full force and effect unless amended or
modified by mutual consent of the Parties.
15. Counteroarts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed to constitute an original, but all of which, when taken together, shall constitute
one and the same instrument, with the same effect as if all of the Parties to this Agreement had
executed The same counterpart.
16. City Consent. City is executing this Agreement for the limited purpose of consenting to
the form of assignment and assumption agreement pursuant to Article 8 of the Development
Agreement and clarifying that there is privity of contract between City and Assignee with respect
to the Development Agreement.
17. Effective Date/Amendments_ The Effective Date of this Agreement shall be the date upon
which Assignee obtains fee title to the Property and delivers evidence of the transfer to City. For
the purposes of this Secfion, the evidence of transfer shall consist of a duly recorded deed and title
report. This Agreement shall not be amended except by an agreement in writing signed by the
parties hereto or their respective successors -in -interest.
[Signature Page Follows]
io�aassx. � i:caa�aa�nrns
os�esa-oaoa -5-
lIV WI"I'NESS WFIEREOF, Assignor, Assignee and City (subject to the limitations set forth in
Section 16) have entered into this Agreement as o£the date first above written.
"ASSIGNOR'•
CIMARRON RIDGE, LLC,
a California limited liability company
By: Van Daele Investment Properties, LLC
Its Managing Member
sy:
Nam�ey-�
Its: �fgiP� IY�Jzw-/i vig EJ�r+Pi-
[Not�y Ackrxowledgneents Requir¢dJ
[Signahmes continued on next page]
�ozassszaium.�s�oees Signature Page to
oa �ssa000ais-m-niem.. �e�.. Partial Assigtunent
^ASSIGNEE••
sy:
Nazne:
Tiue:
100<6332.1/iManagvDMS Si$DBtvrc P8$¢ [O
031858-0003/5-11-1'l/em M"Im P8I'[I8� 1185�$i1TCTS
CITY
CITY OF MENIFEE,
a political subdivision of the State of California,
Name:
Title: City Manager
[Notary Acknowledgment Required]
ATTEST:
Ey:
City Clerk
APPROVED AS TO FORM:
City Attorney
�ovacssaamm��s=oms Signature Page to
os�asa-000sn-� �-we�.mrym Partial Assignment
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certi£cate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, Notary Public, personally
appeared ,who proved to me on the basis of satisfactory evidence
to be the persons) 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 signatures)
on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of She State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Acknowledgement
ioraassza /:m.�eseoens Page to Partial
e3� B58-0003/S-� 1-19/emm/pm ASSignment
A notary public or other officer completing this certificate verifies only the identiTy o£the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that doctment.
STATE OF WISCONSIN )
ss.
COUNTY OF )
On before me, Notary Public, personally
appeared ,who proved to me on the basis of satisfactory evidence
to be the persons) whose names) is/arc 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 signatures)
on the instrument the person<s), or the entity upon behalf of which the persons) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Wisconsin that the foregoing
pazagraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Acknowledgement
10>46531.1/iManagenMS Page to Partial
o3�asa-000srs-i �-ive.....yn. Assignment
EXHIBIT 1
That certain r¢al property located in the City of Menifee, County of Riverside, State o£ California
described as fol]ows:
V • `
Exhibit
3354837.v20
EXHIBIT "D"
ANNCIAL REVIEW FORM
Exhibit
3354837.v20
ANNCIAL REVIEW FORM
This Annual Review Evaluation Form is submitted to the City of Menifee
("City") by Cimarron Ridge, LLC, a California Limited Liability Company
("Developer") pursuant to the requirements of California Government Code section
65865.1 and Section 7.2.1 of that certain Development Agreement by and between
City of Menifee and Cimarron Ridge, LLC Regazding the Cimarron Ridge Specific
Plan Project having an Effective Date of - 2017 ("Development
Agr¢¢m¢nt"). All terms not otherwise defined herein shall have the meanings
assigned to them in the Development Agreement:
Annual Review Period: through
In order to establish (1) that Developer has used good faith efforts to obtain
financing, process required approvals, and/or construct and sell the remaining
undeveloped properties and reach allocated development densities as specified in the
Development Agreement and (2) whether the term of the Agreement may be
extended consistent with the "Term" section 2.2, describe the following:
a. Economic factors relevant to development in City and inland empire
region including vacancy rates, construction costs, the availability of
financing, market demand and average rental rates and sales prices for
different product types within the Properly. -
6.
b. A summary of all efforts made in during this annual review period to
mazket, sell and process required permits and/or construct the remaining
undeveloped properties and reach allocated development densities and
intensities.
7.
c. A summary of specific strategies to be followed in the coming year
intended to facilitate the processing o£ permits and/or actual project
construction.
Specify whether Impact Fees, Processing Fees, Connection Fees and/or other
fees due and payable have been paid during this annual review period.
Describe whether obligations related to pazk and/or open space dedications,
park and/or open space improvements and/or pazk and/or open space in lieu fees
were satisfied where required during this annual review period.
Describe whether other applicable Development Agreement obligations were
completed during this annual review period.
Exhibit
3354637.v20
Specify whether Developer has assigned the all or any portion of the
Development Agreement or otherwise conveyed all or any portion of the Properly
during the review period.
The undersigned representative confirms that Developer is:
7n good faith compliance with its obligations under the Development
Agreement for this annual review period.
Not in good faith compliance with its obligations under the Development
Agreement for this annual review period, in response to which Developer is
taking the actions set forth in the attachment hereto.
iN WITNESS WE-IEREOF, Developer has executed this Annual Review Form
as o£this _day of 20_.
Exhibit
3354637.v20
EXHIBIT "E"
DEVELOPMENT IMPACT FEES
Single Family Residential fees per mmit: $5,185.00
Quimby Fees per .'.,;t: $1,204
Exhibit
3364837.v20
EXFIIBIT "F'>
DEPICTION AND ESTIMATES FOR LIGHT INFRASTRUCTURE
[SEE FOLLOWING PAGES]
Exhibit
335483Zv20
P.9enif¢e SpolYs ParK- LEo Ligfiting Syst¢m
Menifeq CA
Data: 7/t5/f6
To: Mike Berger- Van Caeb Homes
Budg¢t Eadmlf!—PAag! / (23D') Ra diva Base6a// FI!/d (/rdormadar yuuHMl J4/V $ 2!/]6)
Munceb Lqb[ Struc6vv G'rem'� uvn9 en LEn IigM SOulm as dvJUbaE below. i _ M tI1C job sYn=
35D' firbila Bag ,call FiNd:
$200,DOD.00
Pdul9 Tumiabed i3 eHccltve Yor 6D Can unless Gbanvbe fgletl aM1d is kigly cwxlde2tl eaKwlentlBl.
Pr¢-e»! wncref= basso— BaaebaD
Pre-cmc[ m e bases- PrICDCC AICa
TD' Galraniied m[e¢I pa1f3—ql, A2, Bt, B2� Ct, C2
1_vcieo remote elecbld mnpmeM CecloolaCE
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'�'.ory-='vne� mntl aasmY/6[I LEO lungmaY®
NMC." TbC G 1. ontl G2 Fa:es a2 bcaled o� the 250'fedNs Obly t/w /wmrun llnoetlne_ Ng)e Gn/ie pass
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updated
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Bac[eed by an indusby Isadvy l0.yeer Rar4' srW Iabaf WMVWdy wiDv guaiani¢ed eunatmnt Ilgld levels.
Assumes fieitl dlmensbta M Baseba� (250'J Rntliuv.
L^namC_^. diet Pu/ JbEe. does nmt aldutle anY •-ai �. tak
Assumes stsndartl aol eaiddbns -tool[, bo[fpmfcss, wet or uneuitabta soal may rcgtu'IC
addlBonal mngineering, spLCial'ulstaOation methods, ontl oddRlona/ cost Sae Soi/Repro[ LNID`
2gi6 dac bnatlRiL'OnJImformation i¢yaNlcg leunCattcn require en}S Poif>.1s of MenM shave
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lfmom'a 1i96t Stmchuo G(o®I^• uavy an INeStI Ralidm igtH amp1RC ii dOcribed below, tlalrvuM fo the jys Eie-
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Priug tulxliahea u arte [five ]or 5g den unless ofhe.vr:u_ .mtva ontl fa xmmN mnsid[xd aonGdmb81.
Exhibit
335483T.Y20
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Bud9af Esd,n¢ta-soccw Flc/w fi�[u8-YfO fSO•: rBp9. ane seccw FiaFd J{uf21f0•: xo')
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a�am� ei2at pure'nnsq spa not iaaax a.o' aal¢n enx
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