2022/02/15 BLC Fleming, LLC Master Legado DIF Reimbursement Agreement for Park FacilitiesMASTER LEGADO DIF REIMBURSEMENT AGREEMENT
FOR PARK FACILITIES
This Master Legado DIF Reimbursement Agreement for Park Facilities (hereinafter
"Agreement") is entered into on _, 2022 (the "Effeclive l)ute"), by and between the CITY
OF MENIFEE (hereinafter "Cit),"), a municipal corporation of the State of Califomia, and BLC
FLEMING LLC, a Delaware limited liabiliry company (hereinafter "Developcr").
B. On or about June 4, 2020, the City and Developer entered into that certain
Development Agreement (the "Development Agreemerl") with Document Number 2 020 -0282073
in the Official Records of the County of fuverside pertaining to the Property, which described rn
lurther detail in the various Planning and Zoning Approvals lor the Project on the Property,
including the Legado Specif-rc Plan, Change of Zone, and multiple Tentative Tract Maps
(collectively, the " Developmen l Apprcva ls" ot the " Proj ect").
C. As part of processing the Pro.iect, Developer has been conditioned to construct
certain Park Facilities, as more specifically described in the Development Approvals and Exhibit
F-3 of the Development Agreement;
D. Because the projected cost of the Park Facilities was expected lo exceed the
Developer's fair share of Development Impact Fees ("DIf), as described in Section 5.2 ofthe
Development Agreement, the Developer and the City were to enter into a reimbursement
agreement for the purpose ofproviding for reimbursements to the Developer out of DIF collected
lrom other nearby properties that pay DIF for these facilities as well as from lease revenues
associated with the Community Park and Community Center. Developer acknowledges that DIF
are imposed in various separate categories lo fund specific public lacilities identified in the
applicable nexus reports. Credit against DIF may only be applied for eligible in.rprovenrents
identiflred in the specific DIF category;
E. City and Developer desire the DIF fee credits associated with the Park Facilities to
be available when adequate sureties for al least $675,542 of Park Facilities are provided by
Developer.
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and lor other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
RECITALS
A. Developer owns all of the real property described on Exhibit A and depicted
on pgi!i$, consisting of approximately 331 acres of land located in the City of Menifee, County
of Riverside, State of Califomia, more particularly described in the legal description attached
hereto as !1!!!!!3! ("Properry").
AG REEI\,I ENT
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Feb. 15
I . DEFINITIONS AND EXHIBITS.
l.l Definitions. This Agreement uses a number ofterms having specific meanings, as
defined below. Terms undefined in ftis Agreement shall have the same meanings as used in the
Development Agreement.
1.2 Exhibits. The following documents are attached hereto, and by this reference made
a part of, this Agreement:
Exhibit A - Legal Description ofthe Property:
Exhibit B - Map Showing Property and its location;
Exhibit C - Fee Credit Transfer Form;
Erhibi( D - Ivl ap of Alfected Propertiesi and
2
Exhibit E - Sub Agreement for DIF Reimbursement for Park Facilities
TERM
2.1 The term of this Agreement ("Term") shall commence on the Eflective Date and
continue therealter until ten (10) years following acceptance by the City of the final Park Facility.
3. REIMBURSEMENT
3. Ll Developer must notify the City in writing that il is requesting the
Development Fee credits and must provide the City with evidence of the sureties, in the
lorm approved by and acceptable to the City for the Park Facilities with a value of at leasl
$675,542. Developer will have to procure Performance, Security, and Labor and Material
sureties as described in Section 7.80.050 and Chapter 8.03 ofthe Menifee Municipal Code.
3.1.2 The City will then have thirty (30) days to approve, approve in part, or reject
the sureties provided by the Developer after the Developer provides a notice in writing to
the Comrnunity Services Director requesting approval; should the Community Services
Director fail to respond to the Developer within thirty (30) days, the Developer shall notify
the Community Services Director in writing and reques( that the City do so within fourteen
(14) days. At the end of the fourteen (14) day period, if the City fails to respond in one
way or another, then the Developer will be required to notifo the City Manager in writing
of its request, who will then have thirty (30) days to respond and provide the Developer
2
3.1 Pursuant to Section 5.2.1 of the Development Agreement, Developer is eligible to
receive the specific impact fee credits described in Column F and footnote 4 of Exhibit F-3 ofthe
Development Agreement in the amount of 9675,542. However, prior to obtaining the impact fee
credits for the Park Facilities, Developer must provide adequate sureties for Park Facilities with a
value of at least $675,542. In order to obtain the credits listed in Column F, the following must
occur:
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with a detennination. If the City Manager fails to respond within thirty (30) days, the City
shall be deemed to have approved the sureties provided by the Developer.
3.1.3 Once surelies have been provided to the satisfaction of the Community
Services Director, or if needed, the City Manager, or deemed approved, the City will
provide Developer DIF park facility impact lee credits lor the number of dwelling units
that sureties have been provided lor in accordance with Section 3.1.1 above. City shall
provide Developer written confirmalion of the number of dwelling units that lee impact
credits have been granted and the Phase or Phases that those credits rnay be utilized within
fifteen (15) days after the date the sueties have been approved or deemed approved. The
credits shall survive in accordance with Section 5.2.1 ofthe Development Agreement.
3.1.4 If more than one entity is a fee owner of the Property, BLC Fleming LLC
("Master Developer") shall have the right to assign rights to DIF Parks facility impact fee
credits in the arnount speclfied by Master Developer to other owners of the Property subject
to the terms and conditions stated herein. Any assignment of the right to DIF Parks fee
credits shall be made in writing and delivered to the City in the form attached hereto
as [[i!i!!. Master Developer shall have the right to designate any owner of Property as
the successor Master Developer by providing City written notice of such designation.
3.2 Pursuant to Section 5.2.3 of the Development Agreemenl, Developer is also eligible
for reimbursements of their excess contributions from the transfer of Park DIF paid by other
projects in the area (as shown in Erhibit D after the Effective Date ol the Development
Agreement and otherwise eligible for expenditure on each Park Facility as described in Exhibit F-
-3. Reimbursements associated with the Comrnunity Park and Community Center Park Facilities
shall, in addition to Park DIF reimbursements, receive twenty percent (20%) ofthe lease revenue
for the Community Park and the Community Center ("Leose Revenue"). Within thi(y (30) days
ofpublic opening of the Park Facility by the City, the City and Developer shall enter into a Sub
Agreement lor DIF Reimbursement for Park Facilities to cover that Park Facility with a ten (10)
year term and describe the process for obtaining DIF reimbursement. Based on the Development
Agreement Exhibit F-3, the maximum total DIF park facility fee reimbursement shall be
$2,324,458.
3.2.1 Developer shall apply to the City by January 3l of each year of the
Reimbursable Amount requested lor a Park Facility that was not requested in a prior
calendar year, such Reimbursable Amount being the total Actual Costs ofConstruction for
a Park Facility, minus any reimbursements thal were previously provided by the City.
Failure of Developer to provide the annual app[cation shall not result in any waiver of
Developer's right to reirnbursement under the Development Agreement and this
Agreement. Any othenvise qualifying Reimbursable Amount not requested in any
calendar year may be requested in any subsequent calendar year elected by Developer. In
addition, Developer shall not be eligible for reimbursement of any amounts to the extent
that they otherwise are subject to reimbursement lrorn bond proceeds of a Comrnunity
Facilities District(s) established to fund the Park Facilities pursuant to Section 3.2.5 below:
(a) Actual Costs of Construclion shall be evidenced by Developer's
submission of paid invoices or other documentation reasonably acceptable to City,
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including, to the extent applicable, payment of prevailing wages and other
documentation required for construction of improvements.
3.2.2 Within forty-five (45) calendar days of receipt of the Developer's
application, the City rvill calculate any DIF available for that particular lacility that was
paid by other property owners/developers designated in Exhibit E after the Effective Date
of the Development Agreement, as well as any Lease Revenue as appropriate. Such
calculation shall include a minirnum of ten percent (10%) and up to thirty-five percent
(35%) of the DIF park fees collected after the Effective Date of the Development
Agreement by other property owners/developers designated in Exhibit E for years l -9, and
a minimum often percent (10%) and up to one hundred percenl (100%) in year 10.
3.2.3 Within forty-five (45) calendar days of receipt and after calculating the
amount of DIF available for the particular facility, the City will reimbruse Developer a
minimum of len percent (10%) and up to thirty-five percent (35%) ofthe DIF available lor
the particular facility that was paid by other property owners/developers designate in
Exhibit E after the Effective Date of the Development Agreement. The amount to be
reimbursed will be determined by the City based on and including but not limited to the
following factors: the funds available in the DIF Park accounts, the status and need for
other park facilities identified in the City's Five-Year Capital Improvement Plan (CIP), the
need for priority projects to address safety issues, the priority of other park facilities as
identified in the Parks, Trails, Open Space & Recreation Master Plan, and whether the
facilities submitted for reimbursernent are eligible facilities. If said facilities include the
Community Park and Community Center Park Facilities, the City will pay Developer
twenty percent (20%) of the Lease Revenue associated with the Community Park and
Community Center. The Cify may exclude any allowable administrative costs due for
management of the fund at issue. In the tenth year, the City shall provide a minimum of
ten percent (10%) and up to one hundred percent (100%) ol the amount of the DIF
available. Notwithstanding anythrng to the contrary in this Agreement, in no event shall
the amount reimbursed to Developer lor a given year exceed the amount requested and
deternrined eligible for reimbursernent by the City.
3.2.4 For each of the facihties, the total credits and reimbursements shall not
exceed the dollar amount of the Actual Cost ol Construction of such improvement. ln
addition, Developer shall not be eligible for reimbursement of any amounts to the extent
that they otherwise are subject to reimbursement from bond proceeds for Community
Facilities District(s) established to fund the Park Facilities.
3-2.5 At any time during the term of this Agreement, Developer may elect to have
lunds available from a community facilities district ("CFD) formed around all or a portion
ol the Property to reimburse all or a portion of the etigible Reimbursable Amount that
Developer has not received reimbursement from the DIF Park Facility impact lees and
Lease Revenue associated with the Community Park and Community Center, any such
reimbursement from CFD funds shall rednce the amount eligible lor reimbnrsement from
DIF Park Facility inpact fees and Lease Revenue. In order to effectuate the parties' intent
and to avoid any possible double counting, concurrently with the Developer's submission
of a request to form a CFD lor the Property as described above, Developer shall provide a
I
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written analysis to the Community Services Director describing what facilities and
amounts, if any, subject to this Agreement wor.rld be covered by the proposed CFD and
their relationship to the reimbursements in this Agreement or any applicable Sub-
Agreement. If any such facilities and amounts are identified in the written analysis, during
the timeframe the City reviews the analysis, which review shall not ta]<e longer than ninety
(90) days, the City shall not be required to provide any DIF Park Facility impact fee
reimbursements or Lease Revenue. Once the CFD is formed, the Developer will process
an addendum to lhis Agreement and, as necessary, to any applicable Sub-Agreement, that
describes the amounts that are no longer subject to being reimbursed. ln the event of an
inadvertent "double" payment lrom the CFD and this A$eernent, the Developer shall pay
back the City within ten (10) days ofdiscovery or notification. .
3.3 Annual ReconciIation. Develo per and the City shall meet once a year, no earlier
than April I and no later than July I , for the purpose of reconciling the amount of reimbursement
paid by the City for the Park Facilities, the amounts assigned to any Communiry Faciliries
District(s), the amount ofany credit used by Developer and reimbursements made to Developer,
and the maximum amount of credit and reimbursements still available to be clairned by Developer.
City and Developer shalljointly prepare a document describing the reconciliation amounts which
will be used to guide ftrture requests for reimbursement.
4. ASSUMPTION OF RISK
4.1 Developer agrees to assume the risk that the Actual Costs of Construction incr.rned
in connection with the conslruction, installation and/or dedication oI each of the improvements
will exceed the identi{ied "Project Cost" lor each such improvement.
5. PROCEDURE FOR RELEASE OF SURETIES
5.1 Upon acceptance of a Park Facility, a notice of completion for that public
improvement shall be taken to the City Council, and the City Council shall authorize the
Community Services Director to release applicable securities in whole or in part for that Park
Facility; however, such release shall not apply to the {lmount of security deemed necessary by the
Cornrlunity Sen ices Direcl.or for the guarantee and warranty period.
5.2 Prior to the acceptance ofthe Park Facilities, the Developer shall be responsible for
maintaining the Park Facilities in proper operating condition and shalI perform such maintenance
as the Community Services Director reasonably determines to be necessary.
6. RELATIONSHIP OF PARTIES
(r.I The Parties hereby mutually agree that none of this Agreement, nor any other
entitlement, permit, or approval issued by City for the Property shall operate to create the
relationship of pannership, joint venture, or agency between City and Developer, Developer's
contractors and subcontractors are exclusively and solely under the control and dominion of
Developer. Nothing herein shall be deemed to make Developer, its contractors or subcontractors
an agent, contractor or subcontractor of City.
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7. DEFAULTANDREMEDIES
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7.l Specific Performance Available. The Parties acknowledge that money damages
and remedies at law generally are inadequate and specific perlormance is a particularly approprrate
remedy lor the enforcement of this Agreement and should be available lo Developer and the City
because the size, nature and scope ofthe Project, make it impractical or inrpossible to restore the
Property to its natural condition once implementation of this Agreement has begun. After such
implementation, Developer and/or CITY may be foreclosed from other choices they may have had
to utilize or condition the uses of the Property or portions thereof. Developer and CITY have
invested significant time and resources in performing extensive planning and processing for the
Proiect and in negotiating and agreeing to the terms of this Agreement and will be investing even
more significant time and resources in implementing the Project in reliance upon the terms of this
Agreement, such that it would be extremely diffrcult to determine lhe sum of money which would
adequately compensate Developer and,/or CITY for such efforts. The Parties therefore agree that
specific performance shall be the sole remedy available for a breach of this Agreement except as
permitted by Section 7.2 below.
7.2 Money Damages Unavailable. Developer and CITY shall not be entitled to any
monetory compensation, whether characterized as money damages or injunctive or other relief
compelling the payment of money, including attomey fees, lrom the other Party by reason of,
arising out of, based upon, or relating to (a) the interpretatiorr, enforcement, perforurance, or breach
ofany provision of this Agreement, or (b) the respective rights or duties ofany ofthe Parties under
the Development Approvals, the Subsequent Development Approvals, any Development
Requirement, the Land Use Regulalions, or the Subsequent Land Use Regulations.
Notwithstanding the foregoing, CITY may recover from Developer any fees owed under or
pursuant to this Agreement; and Developer may recover liom CITY the dollar amount of any
reinrbursements due under or pursuant to this A$eement and the right to exercise any credits due
under or pursuant to this Agreement.
8, MISCELLANEOUS PROVISIONS
8.1 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly refened to herein. No testimony or evidence ofany such representations, understandings
or covenants shall be admissible in any proceeding ofany kind or nature to interpret or determine
the terms or conditions of this Agreement. Notwithstanding anything to the contrary in Section
9.1, if a conflict exists between the terms of this Agreement and the Development Agreement, the
terms of the Development Agreement shall control.
8.2 Severability. Ifany term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions of this Agreement shall continue in full force and effect, unless and to the extent the
rights and obligations oI any Party has been materially altered or abridged by such holding.
8.3 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and inlerpreted in accordance rvith the laws ofthe State ofCalifornia.
Any dispute between CITY and Developer over this Agreement shall be filed, and tried, in the
Superior Court ol the County of Riverside. This Agreenent shall be construed as a whole
(,
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according to its fair lauguage and common me8ning to achieve the objectives and purposes ofthe
Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against
the drafting Party or in favor ofCITY shall not be employed in interpreting this Agreement, each
of the Parties having been represented by counsel in the negotiation and preparation hereof.
8.4 Section Headings. Al[ section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
8.5 Singular and Plural. As used herein, the singular ofany word includes the plural.
8.7 Waiver. Failure of a Party to insist upon the strict perlormance of any of the
provisions ofthis Agreement by the other Party, or the failure by a Party to exercise its rights upon
the Default of the other Party, shall not constitute a waiver ofsuch Pany's right to insist and
demand strict compliance by the other Party with the terms of this Agreement thereafter.
8.8 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit for the Parties and their successors and assigns. No other Person shall
have any right of action based upon any provision of this Agreemenl.
8.9 Extension of Time Limits. The time limits set forth in this Agreement may be
extended by mutlal consent in writing of the Parties without amendment to this Agreement.
Except as otherwise specified in this Agreement, each Party may agree or refuse to agree to any
extension of time in its sole and absolute discretion.
tl. l0 Mutual Covenants. The covenanls contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent perlormance by the Party benefited thereby
of the covenants to be performed hereunder by such benehted Party.
8.1I Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if each of the Parties
had executed the same iDstrument.
8.12 Jurisdiction and Venue. Any action at law or in equity arising under thts
Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining
the validity ofany provision of this Agreement shall be filed and tried in the Superior Court olthe
County of Riverside, State of California, and the Parties herelo waive all provisions ol law
providing for the filing, removal or change ofvenue to any olher courl.
8.13 Further Actions and Instruments. Each olthe Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligalions under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and wrrtings and take any actions as may be reasonably necessary under the terms of this
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8.6 Time ofEssence. Time is ofthe essence in the performance of the provisions of
this Agreement as to which time is an element.
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Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or
consummate the transactions contemplated by this Agreement.
8.14 Amendments in Writing/Cooperation. This Agreement may be amended only
by written consent of both Parties specifically approving the amendment. The Parties shall
cooperate in good faitlr with respect to any amendment proposed in order to clarify the intent and
application of this Agreerrent, and shall treat any such proposal on its own merits, and not as a
basis for the introduction of unrelated matlers.
8.15 Termination. In the event that the underlying Development Agreement is
Ierminated, then the obligations under this Agreement shall terminate as wel[. For avoidance of
doubt, such termination shall not impact Developer's rights to reimbursements that are available
under the City's Municipal Code for the Park Facilities without consideration of the Development
Agreement, Nor shall such lermination impact Developer's right to credits in accordance wilh
Section 5.2.1 of the Developmenl Agreemen(.
8.16 Authority to Execute. The Person or Persons executing this Agreement on behalf
of a Party warrants and represents that he/they have the authority to execute this Agreement on
behalf of his/their corporation, partnership or business entity and warrants and represents that
he/they has/have the authority to bind that Party to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the Panies herelo have executed this Agreement on the day
and year hrst set forth above.
CITY: CITY OF MENIFEE
By
City Manager
ATTEST
By
By
City Attorney
(SEAL)
By
8
See attached signature page
City Clerk
APPROVED AS TO FORM:
DEVELOPER: BLCFLEMINGLLC, A
Delaware limited liability
company.
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Title See attached page
By See attached signature page
Title See attached sig nature page
[ALL SIGNATURES SHALL BE NOTARIZED. EXECUTION ON BEHALF OF ANY
CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
()
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SIGNATURE PAGE TO
MASTER LEGAOO DIF REIMBURSEMENT AGREEMENT
FOR PARK FACILITIES
Project Name: Fleming Ranch (aka Legado)
Dated:2--1 ?)TL
BLC FLEMING LLC,
a Delaware limited liability company
By:
By:
Bristol Land Company LLC,
a Delaware limited liability company lts
Authorized Agent
By:
John R. Patterson
Its: Authorized Agent and Signatory
*'t
Noah Shih
Its: Authorized Agent and Signatory
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A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On -1 2022 before me sriva Wi'hr. \\d\u+,N trryR
personally appeared
(insert name and title of the officer,
So\s R \o$crs,,n e^J \r\r,.-\ $r.r\
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signalure(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and otficial seal :I
r{ t xt6-niE r Tnct
xotary Public - C.liforni.
O..n!! County
Coftmlsrion , 22a6921
lly Co m. E.x9ir6 Jun 21. 1022
Signature (Seal)
o1
ACKNOWLEDGMENT
O\.^+.4.<- )\\
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EXHIBIT "A"
LEGAL DESCRIPTION
THENCE ALONG SAIO RIGHT OF WAY LINE NORTH OO" 05' 04" TA/EST,.I35,OO FEET;
THENCE LEAVING SAID LINE SOUTH 89" 18'51" EAST, 185.S0 FEET;
THENCE NORTH 00' 05', 40" WEST, 255.28 FEET TO THE CENTERLTNE OF ROUSE ROAO ( 50.00 FEET
HALF WDTH);
THENCE CONTINUING ALONG SAID CENTERLINE SOUTH 89" 18'45" EAST, 1031,61 FEETTO THE
CENTERLINE INTERSECTION OF ROUSE ROAD ANO TRUMBLE ROAD;
THENCE ALONG SAID CENTERLINE OF ROUSE ROAD SOUTH 89" 18'49" EAST, 1313,99 FEET TO THE
CENTERLINE INTERSECTION OF ROUSE ROAO AND SHERMAN ROAD ;
THENCE CONTINUING ALONG SAIO CENTERLINE SOUTH 89" 18' 54'EAST, 2627.27 FEET TOTHE
POINT OF BEGINNING;
CONTAINS 331.0,I ACRES. MORE OR LESS
EXCEPTING 3 PARCELS THEREFROM, DESCRIBEO AS FOLLOWS:
BEGINNING AT THE IUOST SOUTHVVESTERLY CORNER OF PARCEL "A'';
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL'A". NORTH OO'04'58'WEST, 554,12 FEETTO
A POINT 50.00 FEET SOUTH OF THE CENTERLINE OF CHAMBERS ROADi
TTIENCE PARALLEL W|TH THE CENTERLINE OF CHAMBERS ROAO, SOUTH 88'30'32" EAST,82,12
FEET;
THENCE SOUTH OO'04' 58" EAST, 552,36 FEET TO AN ANGLE POINT IN THE SOUTHERLY LINE OF SAID
PARCEL '4";
THENGE ALONG THE SOUTHERLY LINE OF SAID PARCEL 'A", NORTH 89' 44' 20' VIEST, 82.09 FEET TO
THE POINT OF BEGINNING;
CONTAINS 1,04 ACRES, MORE OR LESS
PRERARED BY:K&A ENGINEERING
357 N. SHERIDAN ST.
coRoNA, cA 92880
DATE EXHIBIT PREPARED; APRlL3, 2020
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DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
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EXHIBIT "A"
LEGAL DESCRIPTION
THENCE SOUTH OO'05'04' EAST, 15O4.OO FEET TO A POINT 5O,OO FEET NORIH OF THE CENTERLINE
OF CHAMBERS ROAD:
THENCE PARALLEL WITH THE CENTERLINE OF CHAMBERS ROAO, NORTH 88'30'32" WEST, 456,75
FEET TO THE SOUTHEASTERLY CORNER OF THE NORTHERLY CORNER CUTBACK OF CHAMBERS
ROAD AND ENCANTO DRIVE;
THENCE ALONG SAID CORNER CUTBACK NORTH 32' 36'03" WEST, 24,89 FEET TO THE
NORTHWESTERLY CORNER OF SAID CORNER CUTBACK, SAID POINT BEING 63.00 FEET EAST OF THE
CENTERLINE OF ENCANTO DRIVE ANO ALSO BEING THE B EGINNING OF A NON-TANGENT CURVE,
CONCAVE EASTERLY, HAVING A RADIUS OF 11936.56 FEET, TO \Ai}IICH A RADIAL LINE EEARS
SOUTH 89" ,15' 56" WEST;
THENCE NORTHERLY ALONG SAID CURVE 30.07 FEET THROUGH A CENTRAL ANGLE OF OO' 08' 40" TO
rHE TRIJE POINT OF BEGINNING;
CONTAINS 17.51 ACRES, MORE OR LESS
AS SHOWN ON EXHIEIT "8", ATTACHED HERETO AND MADE A PART THEREOF
7.O 7,O 70
R IPIOBLUME
P.L.S. NO. 9154
REG. EXP. 03/31t21
K&A ENGINEERING
357 N. SHERIDAN ST.
coRoNA, cA 92880
No.9154
Etp. 5/31/21
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PRERARED BY:
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DATE EXHIBIT PREPARED: APRIL 3, 2020
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
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DATE EXHIBIT PREPARED: APRIL 3, 2020
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DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
FORM OF CERTIFICATE OF ASSIGNMENT AND
TRANSFER OF FEE CREDITS
The undersigned Master Developer, as the holder of certain DIF circulation lacility fee credits
("Fee Credits") under the lMaster or Name of Sub-Agreement) Legado DIF Reimbursement
Agreement for Park Facilities between Master Developer lor Master l)eveloJtcr's predeces.sor in
interestl ar.d the City of Menifee, dated _ (the "Agreement"), hereby assigns, translers
and conveys to the undersigned Assignee the amounl ofFee Credits as indicated below:
Master Developer Name:
Assignee's Name:
Lots Owned by Assignee:
Amount of Assigned Fee Credits:
Fee Credit Balance Held by Master Developer
under Agreement Before Assigrunent:
Fee Credit Balance Held by Master Developer
under Agreement After Assignment:
MASTER DEVELOPER,
$
$
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,\SSIGNEE:
a
By:
Name
Tirle:
Date
Mast€r Developer Contact:
Name
Address:
Telephone:
E-Mail:
Name
By
Name
Tirle:
Date:
Address
Telephone
E-Mail:
t0
EXHIBIT C
Tract Lots
Assignee Contact:
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
Acknowledsed Bv:
CITY OF MENIFEE
By:
II
Narne:_
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
Park Reimbursement Area EXIIlBIT D
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DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
EXHIBIT E
SUB AGREEMENT FO R DIF REIMBURSEMENT
OF PARK FACILITIES
This Sub Agreement for DIF Reimbursement of Pcrk Facilities (hereinafter "Agreement")
is entered into on _, 2022 (Lhe "Effective Date"), by and between the CITY OF MENIFEE
(hereinafter "Clty"), a municipal corporation of the State of California, and BLC FLEMING LLC,
a Delaware timited liability company (hereinafter "Developef').
RECITALS
A. Developer owns all of the real property described on [[l!ig1 and depicted
on Exhibit B to the Master Agreement for DIF Reimbursementt consisting of approximately 33 I
acres of land located in the City oI Menifee, County ol Riverside, State of Califomia, more
particularly described in the legal description attached to the Master Agreement lor DIF
Reimbursement as Exhibit A ("Property").
B. On or about June 4, 2020, the City and Developer entered into that certarn
Development Agreement (the "Development Agreemenl") perlaining 10 the Property, whlch
described in further detail in the various Planning and Zoning Approvals for the Project on the
Property, including the Legado Specilic Plan, Change ofZone, and multiple Tentative Tracl Maps
(collectively, lhe " Development Approvals" ot the " Proj ecl").
C. As part of processing the Project, Developer has been conditioned to construct
certain Park Facilities, as more specifically described in the Development Approvals and Exhibit
F of the Development Agreement:
D. Because the projected cost of the Park Facilities was expected to exceed the
Developer's fair share of Development Impact Fees (*lltt;"1, as described in Section 5.2 of the
Development Agreement, the Developer and the City were to enter into a reimbursement
agreement lor the purpose of providing lor reimbursements to the Developer out of DIF and lease
revenue lrom the Community Park and the Community Center;
E. On or about February _, 2022, the City and Developer entered into that certain
Master Legado DIF Reimbursement for Park Facilities ("Master Reimbursemenl Agreernent") to
create a structured process for obtaining reimbursements and credits from the City for these
facilties, which includes the execution ofa Sub Agreement for each facility within tlirty (30) days
after the public opening of a given Park Facility, as identified in Exhibit F to the Development
Agreement;
On or about , the City held a public opening lor theF
and the parties now intend to enter into a Sub Agreement for said facility(ies)
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and lor other good and valuable consideralion, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
l.l Definitions. This Agreement uses a number ofterms having specific meanings, as
defined below. Terms undefined in this Agreement shall have the same meanings as used in the
Development Agreement.
2 TERM
2.1 The term of this Agreement ("Term") shall commence on the Effective Date and
continue thereafter for a period of ten ( l0) years.
3, REIMBURSEMENT
3.1 Pursuant to Section 5.2.3 ofthe Development Agreement, Developer is eligible Ibr
reimbursements of of their excess contributions from the transfer of Park DIF pard by other
proiects in the area (as shown in Exhibit D to the Master Reirnbursement Agreement) alter the
Eflective Date ofthe Development Agreement and otherwise eligible for expenditure on each Park
Facility. Reimbursements associated with the Community Park and Community Center Park
Facilities shall, iri addition to Park DIF reimbursements, receive twenty percent (20%) olthe lease
revenue for the Community Park and the Community Center ("Lease Rcvenue"). Based on the
Development Agreement Exhibit F-3 and Foolnote 7 of that exhibil, the maximum total DIF park
facility fee reimbursement shall be $2,324,458.
3.1.1 Developer shall apply to the Cily by January 3l ol each year of the
Reimbursable Amounl requesled for the Park Facility that was not requested in a prior
calendar year, such Reimbursable Amount being the total Actual Costs ofConstructlon lor
a Park Facility, minus any reimbursements that were previously provided by the City.
Failure of Developer to provide the annual application shall not result in any waiver of
Developer's right to reimbursement under the Development Agreement and this
Agreement. Any otherwise qualifying Reirrbursable Amount not requested in any
calendar year may be requested in any subsequent calendar year elected by Developer. In
addition, Developer shall not be eligible for reimbursement ol any amounts lo the extent
that they otherwise are subiect to reimbursement from bond proceeds of a Community
Facilities District(s) established to fund the Park Facilities pursuant to Section 3.2.5 ofthe
Master Reimbursement Agreement:
(a) Actual Costs ol Constmction shall be evidenced by Developer's
submission olpaid invoices or other documentation reasonably acceptable to City,
including, to the extent applicabte, payment of prevailing wages and other
documentation required lor construction of improvemenls.
2
AGREEMEN'I'
I. DEFINITIONS AND EXHIBITS.
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
3.1.2 Within forty-five (45) calendar days ol receipt of the Developer's notice,
the City will calculate any Park DIF available lor that particular facility that was paid by
other property owners/developers designated in Exhibit D to the Master Reimbursement
Agreement after the Effective Date of the Development Agreement, as well as any Lease
Revenue as appropriate, Such calculation shall include a minimum of ten percent (10%)
and up to thirty-five percent (35%) ofthe DIF park fees collected after the Effective Date
of the Development Agreement by other property owners/developers designated in Exhibit
E lor years I -9, and a minimum of ten percent ( I 0olr,) and up to one hundred percent ( 100%)
in year 10.
3.1.3 Within forty-tive (45) calendar days of receipt and after calculating the
amount of DIF available for the particular lacility, the City will reimburse Developer a
minimum of ten percenl (10%) and up to thirty-five percent (35%) of the DIF available for
the particular facility that was paid by other property owners/developers desigrrated in
Exhibil D to the Master Reimbursement Agreement after the Effective Date of the
Development Agreement. The amount to be reimbursed will be determined by the City
based on and including but not limited to the lollowing lactors: the frrnds available in the
DIF Park accounts, the status and need for otherpark facilities identified in the Crty's Five-
Year Capital Improvement Plan (CIP), the need for priority projects to address safety
issues, the priority ofother park facilities as identified in the Parks, Trails, Open Space &
Recreation Master Plan, and whether the facilities submitted for reimbursernent are eligible
facilities. If said facilities include the Community Park and Community Center Park
Facilities, the City will pay Developer twenty percent (20%) of the Lease Revenue
associated with the Community Park and Community Center. The City may exclude any
allowable administrative costs due for management of the fund at issue. In the tenth year,
the City will provide a minimum of len percent (10%) up to one hundred percent (100%)
of the amount of the DIF available. Notwithstanding anything to the contrary in this
Agreement, in no event shall the amount reimbursed to Developer for a given year exceed
the amount requested and delermined eligible lor reimbursement by the City.
3.1.4 For each of the facilities,the total credits and reimbursements shall not
exceed the dollar amounl of the Actual CosI ol Construction of such improvement. ln
addition, Developer shall not be eligble for reimbursement ofany amounls that otherwise
are subject to reimbursement from bond proceeds of a Communify Facilities District(s)
established to fund the Park Facilities as described in Section 3.2.5 of the Master
Reimbursement Agreement.
3.1.5 The rights to reimbursement under this Agreement are personal to
Developer. If more than one entity is a fee owner of the Property, BLC Fleming LLC
("Master Developer") shall have the right to all reimbursements under this
Agreement. Master Developer shall also have the right to designate any owner of the
Property as the successor Master Developer by providing City written notice ol such
designation.
3.2 Annual Reconciliation. Developer and the City shall meet once a year, no earlier
than April I and no later than July I, lor the purpose olreconciling the amount of reimbursement
paid by the City for the Park Facilities, the amounts assigned to any Community Facilities
3
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
District(s), the amount ofany credit used by Developer, and the maximum amount ofcredit still
available to be claimed by Developer. City and Developer shall jointly prepare a document
describing the reconciliation omounts which will be used to guide future requests lor
reimbursement.
;1. ASSLIIVIPTION OF RISK
4.1 Developer agrees to assume tbe risk that the Actual Costs ofConstruction incurred
in connection wilh the constnrction, installation and/or dedication oI each of the improvements
will exceed the identified "Project Cost" lor each such improvement.
5. RELATIONSHIP OF PARTIES
6. DEFAULT AND REMEDIES
6.1 Specific Performance Available. The Parties acknou,ledge that money damages
and remedies at law generally are inadequate and specific perlormance is a particularly appropriate
remedy for rhe enforcement of tliis Agreement and should be available to Developer and the City
because the size, nature and scope of the Project, make it impractical or impossible to restore the
Propeny to its natural condition once implementation of this Agreement has begun. After such
inlplementation, Developer and/or CITY may be loreclosed lrom other choices they may have had
to utilize or condition the uses of the Property or portions thereof. Developer and CITY have
invested significant time and resources in perforrring extensive planning and processtng for the
Pro.ject and in negotiating and agreeing to the tenns of this Agreernent and will be investing even
more significant tirne and resources in implementing lhe Project in reliance upon the terms ofthis
Agreement, such that it would be extremely difficult to determine the sum of rnoney which would
adequately compensate Developer and./or CITY lor such efforts. The Parties therelore agree that
specific performance shall be the sole remedy available lor a breach of this Agreement except as
permitted by Section 6.2 below.
6.2 Money Damages Unavailable. Developer and City shall not be entitled to any
monetary compensation, whether characterized as rnoney damages or iniunctive or other reliel
compelling the payment of money, including attorney [ees, lrom the other Pany by reason ol,
arising out of, based upon, or relating to (a) the interpretation, en[orcement, performance, or breach
ofany provision ofthis Agreement, or (b) the respective rights or duties ofany ofthe Parties under
the Developmenl Approvals, the Subsequent Development Approvals, any Developlnent
Requirement, fie Land Use Regulations, or the Subsequent Land Use Regulations.
Notwithstanding the foregoing, CITY may recover from Developer any fees owed under or
pursuant to this Agreement; and Developer may recover lrom CITY the dollar amount of any
,1
5.1 The Parties hereby mutually agree that none of this Agreement, nor any other
entitlement, permit, or approval issued by City for the Property shall operate to create the
relationship of pannership, joint venture, or agency between City and Developer. Developer's
contractors and subconlractors are exclusively and solely under the control and dominion ol'
Developer. Nothing herein shall be deemed to make Developer, its contractors or subcontractors
an agent, contractor or subcontractor of City.
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
reimbursements due under or pursuant to this Agreemenl and the rrght to exercise any credits due
under or pursuant to this Agreement.
7. MISCELLANEOUS PROVISIONS
7.1 Entire Agreement. This Agreement sets lbrlh and cortains the entire
understanding and agreement of the Parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein. No teslimony or evidence ofany such representations, understandings
or covenants shall be admissible in any proceeding ofany kind or nature to inlerpret or determine
the terms or conditions ol this Agreement.
7 .2 Severability. Il any term, provision, covenant, or condition of this Agreement is
held by a court of competent .jurisdiction to be invalid, void, or unenforceable, the remaining
provisions of this Agreement shall contrnue in full lorce and effect, unless and to the extent the
rights and obligations of any Party has been malerially altered or abridged by such holding.
7.3 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of California.
Any dispute between City and Developer over this Agreement shall be filed, and tried, in the
Superior Court ol the County of Riverside. This Agreement shall be construed as a rvhole
according to its lair language and common meaning to achieve the objectives and purposes ofthe
Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against
the dralting Party or in lavor of City shall not be employed in interpreting this Agreement, each of
tl.re Parties having been represented by counseI in the negotiation and preparation hereof.
7.4 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not aflect any conslruction or interpretation ol this Agreement.
7.5 Singular antl Plural. As used herein, the singular ofany word includes the plutal
7 .6 Time of Essence. Time is of the essence in the perlormance of the provisions ol
this Agreement as to which time is an element.
7.7 Waiver. Failure of a Party to insist upon the strict performance of any of the
provisions ofthis Agreement by the other Party, or the failure by a Party to exercise its rights upon
the Default of the other Party, shall not constitule a rvaiver of such Party's right to insist and
demand strict compliance by the other Party with the terms of this Agreement thereafter.
7.8 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit lor the Parties and their successors and assigns. No other Person shall
have any right ol action based upon any provision ol thts Agreement.
7.9 Extension of Time Limits. The time limits set fonh in this Agreement may be
exlended by mulual consent in writing of the Parties without amendment to this Agreement.
Except as otherwise specified in this Agreement, each Party may agree or refuse to agree to any
extension of time in its sole and absolute discretion.
5
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
7. l0 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent perlormance by the Party benefited thereby
ofthe covenants to be performed hereunder by such benefited Party.
7.ll Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if each of the Parties
had executed the same instrument.
7.12 Jurisdiction and Venue. Any action at law or in equity arising under thts
Agreernent or brought by any Party hereto lor the purpose ofenforciug, construing or determining
the validity olany provision of this Agreement shall be filed and ried in the Superior Court ollhe
County of Riverside, Stale of California, and the Parties hereto waive all provisions of law
providing for the filing, removal or change ofvenue to any other court.
1 .13 Frrrther Actions and Instruments. Each ol the Parties shall cooperate with and
provide reasonable assistance to the olher to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execule, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and writings and take any actions as rnay be reasonably necessary under the temts ol this
Agreement to carry out the intent and to lulfil[ the provisions olthis Agreement or to evidence or
consummate the transactions contemplated by this Agreement.
7 .14 Amendments in Writing/Cooperation. This Agreement may be amended only
by written consent of both Parties specifically approving the alnendrnent and in accordance with
the Government Code provisions for the amendmenl of Developn,enl Agreements. The Parties
shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent
and application of this Agreement, and shall treat any such proposal on its own merits, and not as
a basis lor the introduction of unrelated rnatters.
7.15 Termination. In the event that the underlying Development Agreement ls
terminated, then the obligations under this Agreement shall terminate as rvell. For avoidance ol
doubt, such termination shall not impact Developer's rights to reimbursements that are available
under the City's Municipal Code lor the Park Facilities without consideration of the Development.
Agreement. Nor shall such termination impact Developer's right to credits in accordance with
Section 5.2.1 of the Development Agreement.
7.1(t Authority to Execute. The Person or Persons executing this Agreement on behalf
ol Developer wanants and represents that he/they have the authority to execute this Agreenrent on
behalf of his/their corporation, partnership or business entity and warrants and represents that
he/they has/have the authority to bind Developer to the perlormance of its obligations hereunder.
lN WTNESS WHEREOF, the Parties hereto have executed this Ageement on the day
and year first set forth above.
6
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918
CITY
By
City Manager
ATTEST:
By
City Clerk
APPROVEDAS TO FORM:
By
City Attomey
(SEAL)
DEVELOPER: BLC FLEMING LLC,
Delaware limited liability
company.
By
Title
By
Trtle
[ALL SIGNATURES SHALL BE NOTARIZED. EXECUTION ON BEHALF OF ANY
CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
CITY OF MENIFEE
a
7
DocuSign Envelope ID: CDDCDCDE-0828-4A15-9299-340BA9C91918