2022/11/07 Agreement 2nd Amendment to Development Agreement 2012-116: Zeiders RD Business Park, Inc. and Commerce Pointe II Menifee INC. regarding the Commerce Pointe ProjectRECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
2@22-44ffi100
ll/07/2o22 l2tOB Pl' Fee: $ 0,00
Pag. 1 ol 126
Rccc.dcd in Official RecordsCounty of RivcrsidcPrt.r AldaneA3Bai30r-Couhty Clark-Recordar
]lt ffi'tti [f fikiltlxltilt'fi ifl | il I
City of Menifee
29844 Haun Road
Menifee, CA 92585
Attn: City Clerk tfrl
(Space Above Line For Recorder's Use Only)
(Exempt from Recording Fees Per Gov't Code 27383)
SECOND AMENDMENT TO CITY OF MENIFEE DEVETOPMENT AGREEMENT 2012-115:
ORIGINALLY: .,DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MENIFEE AND
ZEIDERS ROAD BUSINESS PARK, INC. AND COMMERCE POINTE II MENIFEE INC.
REGARDING THE COMMERCE POINTE PROJECT"
BY AND BETWEEN
THE CITY OF MENIFEE
AND
SCOTT ROAD PARTNERS ttc
REGARDING
SCOTT ROAD COMMERCE CENTER IAND SCOTT ROAD COMMERCE CENTER II
(formerly known as "commerce Pointe")
original Effective Date: December 20,2Ot3
Second Amendment Effective Date: November 4,2022
This Second Amendment to City of Menifee Development Agreement 2OL2-7t6 ("Second
Amendment") is entered into between the City of Menifee, a municipal corporation ("City"), and
Scott Road Partners LLC ("Landowner"). City and Landowner shall be referred to collectively
within this Second Amendment as the "Parties."
RECITALS
A. The Property. Landowner owns fee title to the real property described on Exhibit "A" and
shown on Exhibit "8" attached to this Second Amendment.
B. The Original Development Agreement Approval. On November 20, 2013, the City Council of
the City ("City Council") adopted Ordinance No. 2013-133 approving Development
Agreement No. 2012-115 ("DA") for the Property, which was then known as Commerce
Pointe I and Commerce Pointe ll. The original parties to the DA were (i) the City and (ii) Zeiders
Road Business Park, lnc., a California corporation, and Commerce Pointe ll Menifee, lnc., a
California corporation. Landowner is the successor under the DA to those original parties.
C. The Original Term. The original effective date of the DA was December 20, 2073. December
L9,2023, is the final day of the original ten-year term of the DA ("Original Term").
D. First Amendment. Concurrently with the negotiation and approval of this Second
Amendment pursuant to Ordinance No. 2022-355, the Parties negotiated and the City Council
approved a separate amendment to the DA ("First Amendment'') pursuant to Ordinance No.
2022-354. A copy of the First Amendment is attached as Exhibit "C'. lt is the intent of the
Parties that the First Amendment and Second Amendment shall be deemed to have been
entered into and operate concurrently to the extent provided in each of those amendments.
Ordinance No. 2022-354 and Ordinance No. 2022-355 shall be jointly referred to as the
"Adopting Ordinances" and the date on which they become effective under California law
shall be referred to as the "Amendment Effective Date."
E. Relationship to DAand First Amendment.
o The DA. This Second Amendment amends, but does not replace, the DA. Except as
provided in the First and Second Amendments, the original provisions of the DA shall
remain in full force and effect. The original effective date of the DA remains December
20,2OL3, irrespective of the Amendment Effective Date. References to the "Agreement"
in the DA shall be deemed to refer to the DA as modified by the First and Second
Amendments, unless to do so would conflict with the express intent of either the First or
second Amendment.
lf a provision of this Second Amendment is inconsistent with, conflicts with, or impedes
the full imptementation of a provision of the DA that has not been expressly deleted or
modified by either this First Amendment or the Second Amendment, the Second
1
SECOND AMENDMENT TO CITY OF MENIFEE DEVETOPMENT AGREEMENT 2012.116
Scott Road Commerce Center I and Scott Road Commerce Center ll
(formerly known os "commerce Pointe")
Amendment provision shall prevail over the original language in the DA, but only to the
extent needed to fully implement the Second Amendment provision and the stated intent
of this Second Amendment.
. The First Amendment. This Second Amendment supplements, but neither amends nor
replaces, the First Amendment. Recitals A through G, l, and J of the First Amendment are
incorporated into this Second Amendment for background purposes. The bolded defined
terms in the First Amendment shall have the same meaning within this Second
Amendment. When considered in conjunction with the First Amendment, this Second
Amendment shall be interpreted and applied in a manner consistent with the First
Amendment's provisions, but only to the extent needed to fully implement the Second
Amendment provision and the stated intent of this Second Amendment.
When both the First and the Second Amendments are in effect and operative at the same
time, the First Amendment controls development and use of the Property.
H. Public Hearings. On August L0,2022, ata properly-noticed public hearing, the City's Planning
Commission reviewed and recommended that the City Council approve this Second
Amendment.
l. City Council Action. On September 2L,2022, the City Council conducted a properly-noticed
public hearing in accordance with Chapter 9.45 of Article 2 of Title 9 of the Menifee Municipal
Code ("Development Agreement Ordinance"). Following the public hearing, the City Council
introduced and conducted a first reading of the Adopting Ordinance for the Second
Amendment. At a properly-noticed public meeting on october 5, 2022, the City council
conducted a second reading of and adopted the Adopting Ordinance for the Second
Amendment, making the Amendment Effective Date November 4, 2022.
.L Findings. ln approving the Adopting ordinance for the Second Amendment, the City council
found that this Second Amendment (i) is consistent with the City's General Plan and the
presently applicable zoning for the Propertyl, (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 the City's police power, and (iv) is entered into pursuant to
Government Code Section 65858 and the Development Agreement Ordinance, which
authorize the City to enter into modifications, including extensions of time, to a previously
approved and effective Development Agreement.
K. purpose of Second Amendment. lt is the intent of the Parties that this Second Amendment
will provide to both the City and Landowner limited assurances pertaining to the
development and use of the Project Buildings for the Remaining Vested Uses if, for any
reason, the benefits to the Parties under the First Amendment have not been realized as of
December 79,2023, the final day of the Original Term.
1 Because the DA remains in etrect at the tinre ot this FiGt Amendment, the Zone Change ls not cunently applicable to the
Property.
2
AGREEMENT
For the consideration set forth below, the Parties agree as follows:
1. lncorporation of Recitals. The Recitals above are intended to serve as a substantive part of
this Second Amendment.
2. New Public Benefit. As consideration for entering into this Second Amendment, Landowner
will make a single lump sum payment to the city of 5250,000 (the "Second Amendment
Payment") within three business days after receiving written notice from the City that each
of the following has occurred:
a. The First and Second Amendments have been signed by the city (the Parties understand
and agree that this Second Amendment shall be properly executed by Landowner and
delivered to the City prior to City Council approval of the Adopting Ordinances, but that
Landowner's signing the Second Amendment shall not be bindin8, and this Second
Amendment shall have no legal effect on any Party whatsoever if, after the delivery of the
signed Second Amendment to the City by Landowner, the City Council (l) changes a single
word in the Second Amendment, other than the addition of dates, signatures, ordinance
numbers, project status updates in Recital D, typographical corrections, and similar
technical matters and matters of form in the Second Amendment and the Exhibits, or (li)
adds any condition whatsoever to the approval of the Second Amendment without the
prior written consent of Landowner);
b. The City has timely filed and the County has posted a single Notice of Determination for
both the First and Second Amendments and the Adopting Ordinances ("NOD"). The NOD
shall be filed by the City no more than five (5) days following the approval of the Adopting
Ordinances; and
c. The Adopting Ordinances have become effective without a referendum applicable to
either the First or Second Amendment having been timely submitted (i'e., presented to
the city clerk with a legally sufficient number of signatures within 30 days following the
approval ofthe Adopting Ordinances), both the First and Second Amendments have been
recorded with the Riverside County Recorder, and a copy of both the First and Second
Amendments showing the official Recorder's stamp have been provided to Landowner.
Such funds shall be used by the City in its sole discretion. Once delivered by Landowner to
City, the Second Amendment Payment shall not be refundable.
3. Extension of DA. Provided that on December 79,2O23, Landowner is not in breach of the DA
as amended by the First and Second Amendments, the Original Term automatically shall be
extended through Decemb er !9, 2026, without further action by either of the Parties unless
as of December 19,2023, either:
. Landowner has received certificates of occupancy for each of the Project Buildings;
or
. There is no litigation pending which challenges the validity of the First Amendment
on any basis and the First Amendment remains valid.
3
lf the DA is not extended because one of these conditions exists, City shall nonetheless
retain the entirety of the Second Amendment Payment.
4. "Effective" and "Operative" Dates. This Second Amendment shall be effective as of the
November 4, 2022, the Amendment Effective Date. lt sha ll not become "operative" (meaning
that the Parties will receive their respective benefits from the Second Amendment) unless
and until the Second Amendment Payment is timely delivered to the City by Landowner.
5. Addresses for Notices. Addresses for notices related to this Second Amendment shall be the
same as for the OA and the First Amendment, which are:
City: City of Menifee
Attn: City Clerk
298114 Haun Road
Menifee, CA 92586
With a copy to: Jeffrey Melching
Rutan & Tucker, LLP
18575 Jamboree Rd, gth Floor
lrvine, CA 92512
jmelching@ rutan.com
Landowner: Edmond F. St. Geme
Scott Road Partners LLC
c/o Jupiter Holdings LLC
24 Corporate Plaza, Suite 100
Newport Beach, CA 92660
ed@ju piterholdings.com
With a copy to: Tim Paone
Cox, Castle & Nicholson LLP
3121 Michelson Drive, Suite 200
lrvine, CA 92512
tpaone@coxcastle.com
6. Sections 25 and 30. ln implementing this Second Amendment, the Parties shall comply with
Sections 25 and 30 of the DA as amended by the First Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
lN WITNESS WHEREOF, City and Landowner have executed this Second Amendment to City of
Menifee Development Agreement 2072-7L6, with an Second Amendment Effective Date of
November 4, 2022.
"cirt'
CITY OF MEN.IFEE, A liforn ia city
By:
Armando G.City Manager
an ie Rosee n,lnterim City Clerk
APPROVED AS TO FORM:
RUT UCKER, LLP
Melching,rney
"Landowne/'
Scott Road Partners LLC,
a Delaware limited liability company
By: Jupiter B-lll LLC,
a Delaware limited liability company,
Its: Member
By: Jupiter Advisors LLC, a California limited
liability company,
Its Manager
By:
Name: Edmond F. St. Geme
Its: Manager
T
J
E
CL
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certiflcate is attached, and not the truthfulness, accuracy, or validity of that
document,
State of California
County of Riverside
On before me,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/thelr authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct,
W|TNESS my hand and official seal
Signature (Seal)
A Notary Public or other officer completing this certificate verifies only the identity ofthe 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 Orange
On
me and title of the officer)
fl(.Notary Public, personally appeared eDfl'b^l A f (insert Ba6r, 6
who proved to me on the basis of satisfactory evidence to be the person{rJ whose name(/ is/al subscribed to
the within instrument and acknowledged to me that he/slfe/tldy executld the same in11;517/r1tftrr autnorized
capacity(iri), and th atby his/Dlr/rhy't signaturel, on the instrument the person(, or the entity upon behalf of
which the person(/) acted, executed the instrument.
WITNEsS my hand and official seal
sxlll L.r, xottrbury Plutc . C.Ilorntr
Cofimbrlm r 2tto2a,(c!r6, ard.n r.r rO,:Oltffi
6
Signature
I
0lrlAre ttfrz"zz.beforeme, 5*€f , L, D. )fu4)
I certify under PENALTY OF PER URY under the laws of the State of California that the foregoing
paragraph is true and correct.
(Seal)
EXHIBIT A
(Legal Description of Property)
Real property in the City of Menifee, Coung of Riverside, State of California, described as
follows:
APN: 384-180-051
PARCEL 2, AS SHOWN ON PARCEL MAP NO. 36597 RECORDED NOVEMBER 15, 2018, IN
THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 246, PAGES 6 THROUGH
8 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
APN: 384-180-052
BEING A PORTION OF PARCEL 2 OF PARCEL MAP 8158, IN THE CITY OF MENIFEE,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK
31, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, AND A PORTION OF PARCEL "A'OF NOTICE OF LOT LINE ADJUSTMENT NO.
05016, RECORDED JUNE 23, 2006, AS DOCUMENT NO,2006-0452652,OFFICIAL RECORDS
OF SAID COUNTY, LYING WTHIN SECTION 22, TOWNSHIP 6 SOUTH, RANGE 3 WEST ,
S.B.M., SAID PORTIONS BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL "A", SAID CORNER BEING A
POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF WDTH), AS SAID ROAD
IS SHOWN ON SAID NOTICE OF LOT LINE ADJUSTMENT NO. 05016 AND SAID PARCEL
MAP;
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL "A" AND SAID CENTERLINE OF
ZEIDERS ROAD, NORTH 00'22'06'EAST, A DISTANCE OF 660.06 FEET;
THENCE SOUTH 89"37'54' EAST, A DISTANCE OF 853.00 FEET;
THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL ''A', NORTH 89'28'13" WEST, A
DISTANCE OF 853.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 12.95 ACRES MORE OR LESS
7
PARCEL 1, AS SHOWN ON PARCEL MAP NO. 36597 RECORDED NOVEMBER 15, 2018, IN
THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 246, PAGES 6 THROUGH
8 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL A:
THENCE SOUTH 00"22'06'WEST, A DISTANCE OF 662.47 FEET TO THE SOUTHERLY LINE
OF SAID PARCEL "A'':
RESERVING A RECIPROCAL EASEMENT FOR THE BENEFIT OF PARCEL 'B'AND PARCEL
,C" AS SHOWN HEREON.
PARCEL B
BEING A PORTION OF PARCEL 1 AND PARCEL 2 OF PARCEL MAP 8158, IN THE CITY OF
MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE
IN BOOK 31, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, AND A PORTION OF PARCEL "A' OF NOTICE OF LOT LINE
ADJUSTMENT NO. 05016, RECORDED JUNE 23, 2006, AS DOCUMENT NO. 2006-0452652,
OFFICIAL RECORDS OF SAID COUNTY, LYING WITHIN SECTION 22, TOWNSHIP 6 SOUTH,
RANGE 3 WEST, S.B.M., SAID PORTIONS BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID PARCEL'A", SAID CORNER BEING
A POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF WDTH), AS SAID
ROAD IS SHO\ryN ON SAID NOTICE OF LOT LINE ADJUSTMENT NO. 05016 AND SAID
PARCEL MAP;
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL "A" AND SAID CENTERLINE
OF ZEIDERS ROAD, NORTH 00'22'06" EAST, A DISTANCE OF 660.06 FEET TO THE
POINT OF BEGINNING.
THENCE SOUTH 89'37'54" EAST, A DISTANCE OF 853.00 FEET;
THENCE SOUTH 89'37'54'EAST, A DISTANCE OF 49.51 FEET;
THENCE NORTH 74'41'01' EAST, A DISTANCE OF 67.00 FEET;
THENCE SOUTH 89"37'54" EAST, A DISTANCE OF 2U,25 FEET TO THE EASTERLY LINE
OF SAID PARCEL ''4";
1) NORTH 00'24',17',EAST, A DISTANCE OF 281.53 FEET;
2) NORTH 12'43'45',WEST, A DISTANCE OF 154.03 FEET;
3)NORTH 09'59'30" EAST, A DISTANCE OF 210.15 FEET TO THE NORTHERLY
LINE OF SAID PARCEL ,I;
THENCE ALONG SAID NORTHERLY LINE, NORTH 89'26'00" WEST, A DISTANCE OF
1251.68 FEET TO THE NORTHWEST CORNER OF SAID PARCEL 1, SAID CORNER
BEING A POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF WIDTH);
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 1 AND SAID CENTERLINE'
SOUTH 00"22'06" WEST, A DISTANCE OF 661,19 FEET TO THE POINT OF BEGINNING.
8
THENCE ALONG SAID EASTERLY LINE THE FOLLOWING THREE (3) COURSES:
CONTAINING 18.66 ACRES MORE OR LESS
RESERVING A RECIPROCAL EASEMENT FOR THE BENEFIT OF PARCEL "A'AND PARCEL
.C" AS SHOWN HEREON.
PARCEL C:
BEING A PORTION OF PARCEL 2 OF PARCEL MAP 8158, IN THE CITY OF MENIFEE,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN
BOOK 31, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, AND A PORTION OF PARCEL "A' OF NOTICE OF
LOT LINE ADJUSTMENT NO,05016, RECORDED JUNE 23,2006, AS DOCUMENT
NO. 2006-0452652, OFFICIAL RECORDS OF SAID COUNTY, LYING WITHIN
SECTION 22, TOWNSHIP 6 SOUTH, RANGE 3 WEST, S.B.M., SAID PORTIONS
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID PARCEL'A", SAID CORNER
BEING A POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF
WIDTH), AS SAID ROAD IS SHOWN ON SAID NOTICE OF LOT LINE ADJUSTMENT
NO. 05016 AND SAID PARCEL MAP;
THENCE SOUTH 89'37'54' EAST, A DISTANCE OF 49.51 FEET;
THENCE SOUTH 89"37'54'EAST, A DISTANCE OF 284.25 FEET TO THE EASTERLY LINE
OF SAID PARCEL "A";
1) SOUTH 00'24',17" WEST, A DISTANCE OF 668.47 FEET;
SOUTH 05'18'20'EAST, A DISTANCE OF 13.29 FEET TO THE
SOUTHEAST CORNER OF SAID PARCEL "A'':
o
2\
THENCE SOUTH 89'37'54" EAST, A DISTANCE OF 853.00 FEET TO THE POINT OF
BEGINNING;
THENCE NORTH 74'41'01" EAST, A DISTANCE OF 67.00 FEET;
THENCE ALONG SAID EASTERLY LINE OF THE FOLLOWING TWO (2) COURSES:
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 'A" AND SAID
CENTERLINE OF ZEIDERS ROAD, NORTH 00'22'06" EAST, A DISTANCE OF 660.06
FEET;
THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL "A", NORTH 89'28'13" WEST, A
DISTANCE OF 399.15 FEET;
THENCE NORTH 00'22'06' EAST, A DISTANCE OF 662.47 FEET TO THE POINT OF
BEGINNING.
CONTAINING 6.19 ACRES MORE OR LESS,
RESERVING A RECIPROCAL EASEMENT FOR THE BENEFIT OF PARCEL'A'AND PARCEL
"B'AS SHOWN HEREON.
APN(s): 384-150-009, 384-150-010, 384-150-01'l
10
EXHIBIT B
(Depiction of Property)
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EXHIBIT C
(First Amendment)
't2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: City Clerk
(Space Above Line For Recorder's Use Only)
(Exempt from Recording Fees Per Gov't Code 27383)
FIRST AMENDMENT TO CITY OF MENIFEE DEVETOPMENT AGREEMENT 2012.115:
ORIGINALLY: "DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MENIFEE AND
ZEIDERS ROAD BUSINESS PARK, INC. AND COMMERCE POINTE II MENIFEE INC.
REGARDING THE COMMERCE POINTE PROJECT"
BY AND BETWEEN
THE CITY OF MENIFEE
AND
SCOTT ROAD PARTNERS tLC
REGARDING
SCOTT ROAO COMMERCE CENTER I AND SCOTT ROAD COMMERCE CENTER II
(formerly known as "commerce Pointe")
Original Effective Date: December 20,2OL3
First Amendment Effective Date: Novembet 4,2022
FIRST AMENDMENT TO CITY OF MENIFEE DEVELOPMENT AGREEMENT 2012-116
Scott Road Commerce Center I and Scott Road Commerce Center ll
(formerly known as "Commerce Pointe")
This First Amendment to City of Menifee Development Agreement 2O72-tL6 ("First Amendment")
is entered into between the City of Menifee, a municipal corporation ("Citt''), and Scott Road
Partners LLC ("Landowner"). City and Landowner shall be referred to collectively within this First
Amendment as the "Parties" and individually as a "Party."
RECITALS
A. The Development Agreement.
l. The Originol Approvol. On November 20, 2013, the City Council of the City of Menifee ("City
Council") adopted Ordinance No.2013-133 approving Development Agreement No.2012-
115 ("DA") for property which was then known as Commerce Pointe I and Commerce Pointe
ll and is described in the DA and Paragraph 2 of this First Amendment ("Property'). The
original parties to the DA were (i)the City and (ii) Zeiders Road Business Park, lnc., a California
corporation, and Commerce Pointe ll Menifee, lnc., a California corporation (collectively
"Original l-andowner").
2. TheO gindl Term. The effective date ofthe DA was December 20,2073 ("Original Effective
Date"). December 79,2023, is the final day of the original ten-year term of the DA ("Original
Term"). A copy of the DA is attached to this First Amendment as $[]!i!!! The relationship
between this First Amendment and the DA is set forth in Paragraph 3 below.
3. The Property. The Property is described on Exhibi!"Bland shown on Exhibit "C" to this First
Amendment.
4. Second Amendment. Concurrently with the negotiation and approval of this First
Amendment pursuant to Ordinance No. 2022-354, the Parties negotiated and the City Cou ncil
approved a second and separate amendment to the DA ("Second Amendment") pursuant to
Ordinance No. 2022-355. lt is the intent ofthe Parties that the First Amendment and Second
Amendment shall be deemed to have been entered into and operate concurrently to the
extent provided in each of those amendments. ordinance No. 2022-354 and ordinance No.
2022-355 shall be jointly referred to as the "Adopting Ordinances" and the date on which
they become effective under California law shall be referred to as the "Amendment Effective
Date."
B. l-andowne/s Acquisition. ln 2021, Landowner acquired the Property and the building that had
been constructed at that time on the Property. Original Landowner's rights and obligations under
the DA have been assigned or transferred to Landowner. Landowner is bound by the obligations
under the DA and entitled to the rights granted under the DA.
C. Original Vested Rights. Section 2.7 of the DA defines "Existing Land Use Regulations." ln turn,
the Existing Land Use Regulations specifically include Article X (l-P Zone - lndustrial Park
Regulations) of Riverside County Zoning Ordinance (Ord. 348), which was incorporated into the
Menifee Municipal Code as of the Original Effective Date ("t-P Regulations"). A copy of the l-P
a
1
Regulations is attached as Exhibit "D",
section 7.1 of the DA defined the scope of Landowner's vested rights that were granted by the
DA for the term of the DA ("original Vested Rights"). Among the Original Vested Rights are:
o The right to develop the Property in accordance with, among other things, the Existing
Land Use Regulations.
o The right to use the Property ("Original Vested Uses") in accordance with, among other
things, the Existing Land Use Regulations and, therefore, the l-P Regulations.
D. Project Status. The development of the Property was a pproved in 2013 for 51 build ings totaling
827,777 squarc feet of construction through the adoption of Resolutions 09-66 and 09-67.
Subsequently, pursuant to Plot Plan No. 2015-125 and PLN 21-0215, the Property's entitlements
were modified to allow a total offive build ings ("Project Buildings") and a total of 701,587 square
feet ("Project"). As of the date of this First Amendment:
. one Project Building totaling 72,835 square feet is complete and occupied.
o A second Project Building totaling 84,312 square feet, is currently under construction.
o The final three Project Buildings ("Buildings 3, 4, and 5") totaling 544,540 square feet
were in pla n check as of July 26,2022, and it is anticipated will have completed plan check
and will be under construction by the Amendment Effective Date.
E. City's zoning Amendment. On March 2,2022,lhe City Council adopted certain lndustrial Good
Neighbor Policies to provide local government and developers with ways to address
environmental and neighborhood compatibility issues associated with permitting warehouse,
logistics, and distribution centers ("lndustrial Good Neighbor Policies"). On March L6,2022, the
City Council adopted Change of Zone No. PLN21-0408, amending definitions and permitted uses
in select Economic Development Corridor subareas, including the Southern Gateway subarea
("Zone Change"). The Project is located in the Southern Gateway subarea.
F. Original Public Benefits. As consideration for the City granting vested rights to the Original
Landowner through the end of the Original Term, the Original Landowner provided to the City
the public benefits set forth in Recital F of the DA ("Original Public Benefits").
G. Status of OriBinal Public Benefits. Landowner and Original Landowner have satisfied their
obligations to provide the Original Public Benefits to the City.
H. New Public Benefits. As consideration for entering into this First Amendment, Landowner will
provide to the city the following "New Public Benefits":
L. Fitst Amendment Pdyment. Landowner will make a single lump sum payment to the City of
52,500,000 (the "First Amendment Payment") within three business days after receiving
written notice from the City that each of the following events has occurred:
a. The First and Second Amendments have been signed by the City (the Parties
understand and agree that this First Amendment shall be properly executed by
Landowner and delivered to the City prior to City Council approval of the Adopting
Ordinances, but that Landowner's signing the First Amendment shall not be binding,
and this First Amendment shall have no legal effect on any Party whatsoever if, after
the delivery of the signed First Amend ment to the City by La ndowner, the City Cou ncil
(i) changes a single word in the First Amendment, other than the addition of dates,
2
3
si8natures, ordinance numbers, project status updates in Recital D, typographical
corrections, and similar technical matters and matters of form in the First
Amendment and the Exhibits, or (fi) adds any condition whatsoever to the approval
of the First Amendment without the prior written consent of Landowner);
b. The City has timely filed and the County has posted a single Notice of Determination
for both the First and Second Amendments and the Adopting Ordinances ("NOD").
The NOD shall be filed by the City no more than five (5) days following the approval
of the Adopting Ordinances; and
c. The Adopting Ordinances have become effective without a referendum applicable to
either the First or Second Amendment having been timely submitted (t'.e., presented
to the City Clerk with a legally sufficient number of signatures within 30 days following
the approval of the Adopting Ordinances), both the First and Second Amendments
have been recorded with the Riverside County Recorder, and a copy of both the First
and Second Amendments showing the official Recorder's stamp have been provided
to Landowner.
Such funds shall be used by the City toward the construction of an as-yet-undetermined
public facility, to be identified by the City in its sole discretion.
2. Elimination ol Certoin o gindl vested Uses. Beginning on the Amendment Effective Date,
the following Original Vested Uses currently allowed under the l-P Regulations will not be
permitted on the Property during the remainder of the term of the DA, as extended by this
First Amendment ("Eliminated Vested Uses"):
a. From within the range of "parcel delivery services" covered bySection 10.1(a)(1XgX9)
of the l-P Regulations, those that meet each of these criteria: (i) consist of dedicated
"last-mile" terminals of FedEx, UPS, Amazon, Walmart, DHL, or OnTrac and (ii) are
primarily used to process and deliver e-commerce packages to their final destinations
and (iii) conduct incoming and outgoing deliveries for more than 15 hours per day.
b. Recycling Collection Facilities covered by Section 10.1(aX1XgX10).
c. Vehicle Storage and lmpoundment covered by Section f0.f(aX1XeX1).
d. Recycling processing facilities covered by Section 10.1(bX3).
e. Sex-oriented businesses covered by Section 10.1(c).
The Original Vested Uses less the Eliminated Vested Uses are referred to within this First
Amendment as the "Remaining vested Uses."
3. Woivq oI Cloims. lrrespective of whether the claims were asserted by Landowner or any
other party, Landowner on behalf of itself and its agents, officers, and affiliates waives and
releases, as of the Amendment Effective Date, all claims that it has or may have in any way
arising from or relating to the adoption of (i) the Zone Change and (ii) the lndustrial Good
Neighbor Policies. Without limiting the generality of the foregoing, this waiver and release
includes, but is not limited to, all claims asserted in letters from Landowne/s attorney to the
City Council dated March 1,2022, and March 2,2022.
l. Landowner's Perspective. As the Original Term nears its end and Buildings 3, 4, and 5 are
anticipated to soon be under construction, Landowner has the following concerns which
motivate Landowner to enter into this First Amendment:
. Landowner and Original Landowner have invested and are continuing to invest
considerable sums in both the acquisition of the Property and the entitlement and
construction of the Project Buildings.
. When Landowner acquired the Property, it was Landowner's business expectation that
the Project Buildings would be constructed and used for a reasonable period of time
during and after the Original Term consistent with the Original Vested Rights.
. The Project Buildings have been designed and have been or are being constructed to
accommodate specific Original Vested Uses which require buildings of a certain size,
configuration, and location.
o Landowner understands that, without this First Amendment, uses in place within the
Project Buildings when the Original Term ends on December 19, 2023, will be allowed to
continue to operate, subject to the terms of the City's non-conforming use ordinance.
o Due to economic, market, and other conditions, including the historic pandemic
beginning in 2020, construction of all of the Project Buildings will not be complete until,
at best, the final year of the Original Term.
o Prior to the adoption of the Zone Change and the lndustrial Good Neighbor Policies,
Landowner communicated in writing its potential legal claims to the City pertaining to
the implications of the Zone Change and the lndustrial Good Neighbor Policies upon the
Property and the DA.
o To achieve greater certainty with respect to the use of the Property in the future,
Landowner has requested the City to extend the term of the DA to assure that (i) in the
short-term, the construction of the Project Buildings will be completed while the DA is in
effect and (ii) in the longer term, the Project Buildings can be used for the Remaining
Vested Uses for which they were designed and constructed.
. ln return for an extension of the term of the DA, Landowner is willing to provide the New
Public Benefits to the City.
J. Citys Perspective, City contends that Landowner's claims pertaining to the Zone Change and
the lndustrial Good Neighbor Policies are without merit, but is nevertheless motivated to
consider this First Amendment for the following reasons:
. This First Amendment removes the Eliminated Vested Uses from the list of uses
Landowner may pursue on the Property during the remainder of the Original Term, and
following the expiration of the Original Term.
. Without this First Amendment, Landowner would retain the ability to conduct the
Original Vested Uses through the end of the Original Term, and to thereafter perpetuate
those established uses under City's nonconforming use ordinances.
4
. This First Amendment will provide substa ntial funding toward the construction of a pu blic
facility to be identified by the City in its sole discretion.
. This First Amendment will avoid the cost and uncertainty of defending against a legal
challenge to the Zone Change and/or lndustrial Good Neighbor Policies brought by
Landowner, its agents, officers, and affiliates.
K. Public Hearings. On August 70,2022, at a properly-noticed public hearing, the City's Planning
Commission reviewed and recommended that the City Councilapprove this First Amendment.
t. City Council Action. On September 27,2022, the City Council conducted a properly-noticed
public hearing in accordance with Chapter 9.45 of Article 2 of Title 9 of the Menifee Municipal
Code ("Development Agreement Ordinance"). Following the public hearing, the City Council
introduced and conducted a first reading of the Adopting Ordinance for the First Amendment.
At a properly-noticed public meeting on October 5, 2022, the City Council conducted a second
reading of and adopted the Adopting Ordinance for the First Amendment, making the
Amendment Effective Date November 4, 2022.
M. Findings. ln approving the Adopting Ord inance for the First Amendment, the City Council found
that this First Amendment (i) is consistent with the City's General Plan and the presently
applicable zoning for the Propertyl, (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 the City's police power, and (iv) is entered into pursuant to Government
Code Section 65868 and the Development Agreement Ordinance, which authorize the City to
enter into modifications, including extensions of time, to a previously approved and effective
Development Agreement.
N. Purpose of First Amendment, lt is the intent of the Parties that this First Amendment will (i)
provide to both the City and Landowner ongoing assurances and certainty with respect to the
development and use of the Property, (ii) provide significant benefits, in the form of vested
rights, to Landowner beyond those Landowner already has received as consideration for entering
into the DA, (iii) provide significant New Public Benefits to the City beyond those the City already
has received as consideration for entering into the DA, and (iv) resolve disagreements between
the Parties with respect to the Zone Change and the lndustrial Good Neighbor Polices as they
relate to the development and use of the Property.
AGREEMENT
For the consideration set forth below, the Parties agree as follows:
1. lncorporation of Recitals. The Recitals above are intended to serve as a substantive part of this
First Amendment. Without limiting and to clarify the foregoing:
a. Landowner shall deliver the "First Amendment Payment" described in Recital H1 at the time
and in the manner specified in Recital H1. lf Landowner fails to timely deliver the First
Amendment Payment to City, City may, upon provision of written notice to Landowner,
unilaterally terminate this First Amendment.
1 Because the DA remains in effect at the time ofthis First Amendment, the Zone Change is not currenlly applicable to the Property.
5
b. Any alleged default with respect to the "Elimination of Certain Original Vested Uses"
described in Recital H2 shall be addressed in the manner set forth in Section 15 of the DA.
c. The "Waiver of Claims" described in Recital H3 shall be deemed effective without any further
action by Landowner upon delivery of the First Amendment Payment.
d. This First Amendment shall be effective as of the November 4, 2022, the Amendment
Effective Date. lt shall not become "operative" (meaning that the Parties will receive their
respective benefits from the First Amendment) unless and until the First Amendment
Payment is timely delivered to the City by Landowner.
2. Property. As of the Amendment Effective Date, Landowner holds legal title to the Property. The
Property is comprised of (i) Assessor Parcel Nos. 384-180-051 and 384-180-052 (now known as
"scott Road commerce center l") and (ii) Assessor Parcels Nos. 384-150-009, -010, and -011
(now known as "Scott Road Commerce Center ll"). For clarity, the property described on Exhibit
lll and shown on Exhibit "C" is the same as the property described on Exhibit A to the DA.
3. Relationship to DA. This First Amendment amends, but does not replace, the DA. The Original
Effective Date of the DA remains December 20,2073, irrespective of the Amendment Effective
Date. References to the "Agreement" in the DA shall be deemed to refer to the DA as modified
by the First and Second Amendments, unless to do so would conflict with the express intent of
either the First or Second Amendment. When considered in conjunction with the DA which it
amends, however, this First Amendment shall be interpreted and applied to implement the
intent of each of this First Amendment's provisions, subject to the following:
a. Provisions Not Modified. Except as provided in the First and Second Amendments, including
Paragraph 4 below, the original provisions of the DA shall remain in full force and effect.
b. Resolution of lnconsistencies. lf a provision of this First Amendment is inconsistent with,
conflicts with, or impedes the full implementation of a provision of the DA that has not been
expressly deleted or modified by either this First Amendment or the Second Amendment,
the First Amendment provision shall prevail over the original language in the DA, but only to
the extent needed to fully implement the First Amendment provision and the stated intent
of this First Amendment. When considered in conjunction with the Second Amendment, this
First Amendment shall be interpreted and applied in a manner consistent with the Second
Amendment's provisions.
4. LitigationContingencies.
Extension of Term of First Amendment. lf litigation is filed by a third party which seeks to
invalidate either the First or the Second Amendment or either of the Adopting Ordinances
("Adverse litigation"), then, upon the filing of that Adverse Litigation both the Extended
Development Term and the Extended Use Term (as described in the modification to Section
6.2 set forth in Paragraph 5k below) shall automatically be further extended for a period
equal to the length of time from the filing of the Adverse Litigation until the Adverse Litigation
is "final."2 The maximum of each of these extensions, however, shall be three (3) years.
a
2 All refe.ences within this First Amendment to litigalion being linal" shall mean thatthe litigalion has concluded, whelher by iudgment,
dismissal, settlement, or otheMise, and all applicable appeal righls have been exhausted or expired.
6
5
b. Return of First Amendment Poyment.lf the First Amendment Payment has been made to City
by Landowner and a court of law subsequently invalidates the First Amendment and all
Adverse Litigation related to the First Amendment is final, then:
o Within forty five (45) days after Landowner's written request, the City shall return the
First Amendment Payment with interest based upon the Local Agency lnvestment Funds
(LAIF) from the date the First Amendment Payment was delivered to the City through
the date the First Amendment Payment was returned to Landowner (the "Returned
Fu nds").
. Upon receipt of the Returned Funds, Landowner shall provide an express disclaimer and
waiver by Landowner of any rights under or relating to this First Amendment, effective
upon delivery of the Returned Funds to Landowner by the city.
The provisions of this Paragraph 4 shall survive the termination of this First Amendment.
Specific Modifications and Updates. On the Amendment Effective Date, the Recitals and all
other provisions of this First Amendment, along with the following updated information and
changes to the DA, shall be deemed to modify the DA; provided, however that under Paragraph
1(d), such modifications shall not become operative unless and until the First Amendment
Payment is timely delivered to the City by Landowner. Where terms defined in this First
Amendment, but not used originally in the DA, are used in the provisions of the DA which are
modified by this First Amendment, they shall have the defined meaning given to them by this
First Amendment. (For purposes of this Paragraph 5, the "Recitals" identified in the headers to
subparagraphs a-h refer to recitals of the DA. References to recitals in this First Amendment are
stated as, for example, "Recital D of this First Amendment." "Section" references are to the DA
as originally approved, while "Paragraph" references are to this First Amendment.) Pursuant to
Section 9.45.130 of the Menifee Municipal Code, lf Landowner has provided the First
Amendment Payment and subject to the provisions of Paragraph 4 above, fhen the following
specific modifications and updates to the DA are made by this First Amendment:
a. Recitdl BoItheDA. Recital B is su pplemented by Pa ragraph 2 of th is First Amendment.
b. Recitdl C oI the DA. Recital C is supplemented and updated by Recital D of this First
Amendment.
c. Recitol D ofthe DA. Recital D is supplemented and updated by modifying the introductory
statement and adding subparagraphs (g) and (h) as follows:
"D. Proiect. The land use approvals for the Project obtained prior to the Approval Date of
this First Amendment (collectively, the "Proiect Approvals") include but are not limited
to the following:"
(e)Plot Plan No. 2016-126 approving a minor modification for Commerce Pointe ll,
reducing the number of buildings to two and the total square footage to 157,147 square
feet. Approved on January 79,2017.
(h) PLN 21-0215, approving a minor modification for Scott Road Commerce Center ll
(formerly Commerce Pointe l), reducing the number of buildings to three and the total
square footage to 544,540 square feet. Approved on November lO,2027."
7
d. Recitol E of the DA. Recital E is supplemented by Recital N of this First Amendment.
e. Recitol F of the DA. Recital F is supplemented by Recital H of this FirstAmendment.
f. Recitdl GoItheDA. Recital G is supplemented by the Recital K of this FirstAmendment.
c. Recitol H oI the DA. Recital H is supplemented by Recital M of this First Amendment.
h. Recitol loItheDA. Recital lis supplemented by Recital K of this First Amendment a nd Recital
L of this First Amendment.
i. Sedion 2.4. Section 2.4 is modified to read in ats entirety:
"Orieinal ctive Date. December 20, 2013."
j. Section 6.7. Section 6.1 is modified to read in its entirety:
'qEllelEtrCctlyC_g3le. The Original Effective Date is December 20, 2013. The
DA was recorded on December 26,2073, in the Official Records of the County of
Riverside, State of California. The First Amendment is effective as of November 4,
2022. Not later than November LO, 2022, the City and Landowner shall execute
and acknowledge the First Amendment. Not later than November t4,2022,lhe
City Clerk shall cause the First Amendment to be recorded in the Official Records
of the County of Riverside, State of California, provided that a referendum
applicable to the First Amendment has not been timely submitted to the City. The
failure of the City to sign and/or record the First Amendment shall not affect the
validity of the First Amendment."
k. Section 6.2. Section 6.2 is modified to read in its entirety:
"@. The term of the DA commenced on the Original Effective Date and, absent
amendment, the final day of the ten-year Original Term would have been
December 79,2023. The DA has been amended to extend the Original Term as
follows:
lal Development With respect to the Development Rights described in Section
7.1.1 below, the Original Term is extended through December 19,2028, unless
otherwise terminated, modified, or extended by the terms of this Agreement
('Extended Development Term').
(b) Use. With respect to the Use Rights described in Section 7.1.2 below, the
Original Term is extended through December 19, 2063, unless otherwise
terminated, modified, or extended by the terms of this Agreement. ('Extended
Use Term')."
l. Section 6.3. Section 6.3 shall be superseded by the provisions of Paragraph 4 above.
m. Section 6.6. The first sentence of Section 5.5 is modified to read:
"Except with respect to rights and obligations expressly stated to survive the
Termination of this Agreement, following Termination of this Agreement all of
the rights, duties and obligations of the Parties shall terminate and be of no
further force and effect."
n. Section 7.I. Section 7.1is modified to read, in its entirety:
8
o
"Development and Use Rights.
7.1.1. Develooment Rights. Separate from the use rights provided under
Section 7.1.2, which expire as set forth in Section 5.2(b), during the
Extended Development Term and except as set forth in Sections 7.2, 7.3,
7.4 and 8.5 below, with respect to the Property, the density and intensity
of use, the rate, timing and sequencing of development, the maximum
height and design and size of proposed buildings, the parking standards,
and provisions for reservation and dedication of land, shall be as set forth
in this Agreement, the Existing Land Use Regulations in force and effect
on the Adoption Date, and the Project Approvals."
7.1.2. Use Rishts. Separate from the development rights provided under
Section 7.1.1, which expire as set forth in Section 6.2(a), during the
Extended Use Term and except as set forth in Section 7 .2, 7 .3, 7.4, and
8.5 below, the Remaining Vested Uses may be conducted in those Project
Buildings which have been constructed or for which building permits have
been granted as of December L9, 2028. The provisions of Section 5.5
("Automatic Termination") shall not apply to Use Rights.
7.1.3. Nonconformins Uses. All uses of the Property, including the
Original Vested Uses, which become nonconforming at any time shall be
subject to the provisions of the Menifee Municipal Code, as it may be
amended from time to time, pertaininB to the continuation of
nonconforming uses. For the remainder of the Original Term and during
the Extended Use Term, a use shall not be considered nonconforming if
it is permitted by this Agreement. "
Section 7.2, Section 7.2 is modified to read, in its entirety:
"Fees Taxes and Exactions . Except as provided in Sections 7.2(a) and
7.2(b) below, the Landowner shall pay when due all Exactions duly
imposed by the City on the Project and/or the Property as part of the
Pro.iect Approvals and Existing Land Use Regulations. Landowner shall pay
those citywide application, processing, inspection, permit and plan check
fees and charges (the "Processing Fees") required by the City and in effect
at the tlme of the application for that permit or approval. Landowner
agrees that Landowner shall pay the City the full costs of a contract
planner or contract building plan check person if such services are
determined to be necessary by the City Manager; provided, however,
that the Processing Fees paid by Landowner to the City shall apply as a
credit against the costs of the contract planner or the contract building
plan check person. This Agreement shall not limit the City's right and
power to impose taxes on the Property or Project provided that any taxes
imposed are adopted pursuant to all applicable laws and that said tax is a
general tax that applies throughout the boundaries of the City.
(al Development lmpoct Fees for Buildings 3, 4, ond 5. As ol May 26,2022,
development impact fees ("DlF Fees") for Buildings 3,4, and 5 were paid
o
in full by Landowner with respect to any and all building permits required
for those bu ildings.
lbl Future DIF Fees. Notwithstanding the foregoing, the DIF Fees
applicable to the Project, as set forth in the attached Exhibit "C", shall be
subject to moratorium during the Original Term of this Agreement, i.e.,
through December L9,2023 ("DlF Freeze"). Without prejudicing the right
of either Party to contend that additional DIF Fees are or are not required
for future development of the Property as a result, for example, of the
expiration of a building permit:
. During the remainder of the Original Term (i.e., through December
19,2023), the DIF Freeze shall remain in place.
. After the conclusion of the Original Term and through the conclusion
of the Extended Development Term (i.e., from December 20, 2023,
through December 19, 2028), the DIF Fees imposed upon the Project
shall be those established pursuant to Council Resolution 2L-1007.
For avoidance of doubt, the fees applicable to "lndustrial/Business
Park" development on the Property under City Council Resolution No.
21-7007 ate charged at a rate of 55,372 per 1,000 square feet of
construction.
p. Section 79. Section 19 is modified to read, in its entirety:
"Excuse for Nonperformance. Landowner and City shall be excused from
performing any obligation or undertaking provided in this Agreement if and so
long as the performance of any such obligation is prevented or delayed, retarded
or hindered by act of God, fire, earthquake, flood, explosion, action of the
elements, pandemic (provided, however, that the Parties acknowledge the
COVID-1g pandemic is not currently and has not to date caused any excuse for
nonperformance under this Agreement), war, invasion, insurrection, riot, mob
violence, sabotage, strikes, lockouts, condemnation, Adverse Litigation, court
order or any reason not caused by and not within the control of the Party
claiming the extension of time to perform. The Party claiming such extension
shall send written notice of the claimed extension to the other Party within thirty
(30) days from the commencement of the cause entitling the Party to the
extension."
q. Sedion 23. Section 23 is modified to read in its entirety:
"City: City of Menifee
Attn: City Clerk
29844 Hau n Road
Menifee, CA 92586
Jeffrey Melching
Rutan & Tucker, LLP
18575 Jamboree Rd,gth Floor
lrvine, CA 92512
With a copy to:
10
s
Landowner:
With a copy to:
Section 25. Section 25 is modified to read in its entirety:
"Further Assurances and Cooperation.City and Landowner will
cooperate in a "good faith and fair dealing" manner with respect to each
of their respective obligations under this Agreement. This includes, but is
not limited to, the timely delivery of the New Public Benefits by
Landowner and the City's timely review of all applications and issuance
of all permits (building, occupancy, etc.) for each of the Project Buildings.
Each Party further covenants, on behalf of itself and its successors, heirs
and assigns, to take all actions and do all things, and to execute, with
acknowledgment or affidavit if required, any and all documents and
writings that may be necessary or proper to achieve the purposes and
objectives of this Agreement."
Sedion 30. Section 30(a) is added to the Agreement to read as follows:
"(a) This Section 30 shall apply additionally to the construction of the
Project, with the clarification that, os to the City, this provision creates an
indemnification obligation and not an obligation to pay prevailing wage.
Landowner shall not be considered in default under this Section 30,
except for a failure to meet that indemnification obligation."
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
jmelching@ rutan.com
Edmond F. St. Geme
Scott Road Partners LLC
c/o Jupiter Holdings LLC
24 Corporate Plaza, Suite 100
Newport Beach, CA 92660
ed @jupiterholdings.com
Tim Paone
Cox, Castle & Nicholson LLP
3121 Michelson Drive
Suite 200
lrvine, CA 92612
toaone(acoxcastle.com"
lN WITNESS WHEREOF, City and Landowner have executed this First Amendment to City of Menifee
Development Agreement 2012-116, with an Amendment Effective Date of November 4,2022.
"cit{'
CITY OF MENIFEE, a California city
By
Armando G. Villa, City Manager
Stephanie Roseen, lnterim City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Jeffrey T. Melching, City Attorney
Scott Road Partners LLC,
a Delaware limited liability company
By: Jupiter B-lll LLC,
a Delaware limited liability company,
Its: Member
By: Jupiter Advisors LLC, a California limited
liability company,
Its Manager
By:
Name: Edmond F. St. Geme
Its: Manager
ATTEST:
"Landowner"
q^
12
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,
before me,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her^heir authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s)acted, executed the instrument,
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature (5eal)
UN
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 oforange
On D <;ta z> l'l , ?ozl.b"ro,"^.itlzru L, U
(insert name and title of the officer)
F-Onlorr)n T s-i-,c tnNotary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the personJ.r|'whose name(s) is/a2€ subscribed to the
within instrument and acknowledged to me that he$e/lhty executed the same in hisllyztlfircj.t authotized
capacity(izl), and th arby hislhgltt/it signature(t, on the instrument the person(r, or the entity upon behalf of
which the personj,/'acted, executed the instrument.
I certifo under PENALTY OF PER URY under the laws of the State of california that the foregoing paragraph
is true and correct,
WITNESS my han and official seal.ffij;i;lilrk I
i
Signatu
13
(Seal)
State of California
County of Riverside
)
)
EXHIBIT A
(Original Development Agreement)
14
Recording Requested By:
CITY OF MENIFEE
City of [fe,:ifee
JAN 07 NN
ReceivecJ
Doc + 2013-@5941s6
72/?6/?,013 09:064 Fcc: NCPagc I of 77
Recorded in Official RecordsCounty of RivarsldeLarry U. tl.rdAsscssor, County Clark E Recorder
Afler Recording Mail To:
CITY CLERK
CITY OF MENIFEE
29714 HAUN ROAD
MENIFEE, CA 92586
Record r/ithout fee subiect to Govt. Code 27383
ilililt !]il ilil ilil 1lI ililt |ilil illllil il] |l!l
,a
C
072
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MENIFEE
AND
ZEIDERS ROAD BUSINESS PARK, INC.
AND
COMMERCE POINTE II MENIFEE INC.
RECARDING THE
COMMERCE POINTE PROJECT
Effective Date.
December 20, 2013
S R U PAGE SIZE OA llltsc LONG RFD COPYlt
tlt L 426 PCOR NCOR SMF ((.,0
@r.t\f T UNI
EXArrr
o7a
II I
465
CTY
COMMERCE POINTE PROJECT
- fhi! Development Agreement ("Agreement") is eutered into as of this 20h day ofNovember 2013, by and between the cITy oF MENIFEE, a municipal corporation (the"cityr') and Zciders Road Business park, Inc., a califomia corporation, *d co--".""Pointe II Menifee, Inc., a califomia corporation (individualiy a,,iarraowrefl anacollectively "Landowners"). The city and Ladowners are sometimes hereinaftercollectively refe,rred to as the and singularly as ',party.,,
RECITALS
. A. AglhglEgtla!. To strengthen the public plaru:ing process, encourageprivate participation in comprehensive planning, -and reduce G -economic
risk "of
{3ye1opment, the Legislature of the state ofcalifornia atloptcd Govemment code section65864, et seq. (the "Dovelopment_Agreement Statute"), whloh autrrorizes thc city aoJ aiyperson having_ a legal or equitable interest in real property to enter into a developmentaqreement and, among othor things, establish oertain treveiopment rights in the propertywhich is the subject of thc development projecr application. on luly 7, 2009, ihe'citycouncil adopted ordinance No. 2009-49 which sits fo(h the pro."d*"r, ,equirementsand authorization to approve development agreements (the .,bevelopment agr""."niOrdinance').
_ B' ProDertv. Zeiders Road Business park, Inc. holds a regal interest in certainreal property comprised of Assessor parcel #s 3g4-150-00g, -009, ;d -010 (commonlyknown as "commerce Pointe I'), ad cornmerce pointe II Menifee, rnc. holds a legalinterest ir Assessor Parcel # 384-180-043 (comnonly knowu as ,,commerce pointe Ii).comrnerce Pointe I and commerce poi,te II are locatecl in the city of Merif.", C;;t;iRiverside, state of califomia, as more particularly dcscribed in Bxtritit -A" attaciedhereto (the "Ptoperty").
c. Proiect, Landowners have been authorized to develop on the property trvolight industrial parks consisti.g of (i) approximately 209,g5g square f'eet of flooi a."uwithin 18 buildings, plus 327 parking spaces on Commerce pointe II; and (ii)approximately 617,919 squarc fcet of floor a'ea within 33 builclings, ptus t,ois parking
spaces on Comrnerco Pointe [.
_ D. Proiect Approvars' The land use approvars for the project obtained priorto the Approval Date of this Agrecment (collectivery, the "project Approvals,,) includl but
are not limited to the following:
In ental R
Mitigation Measru'es, certified
on April 7, 2009,
(State Clearinghouse # 2006121062), rvith
by the City Council of the City of Menifee
2
(a)
DEVELOP}IENT
AGREEMENT
G)Resolution No. 09-06 certifying the environmental impact report (Statc
(c)
(d)Plot Plan #21452 and Plot P
Clearinghouse #2006121062) and adopting a statement of overriding
considerations of environmental impact for the Commerce pointe I and II
Project, approved and adopted by the City Council of the City of Menifee
on April 7,2009.
Chanee of Znne #7 476. which changed the zoning of parcels within
Commerce Pointe I from Light Agricultue to Light Industrial and fromLight Agriculture and Manufacturing-sewice Commercial to Light
lndustrial, approved and adopted by the City Council of the City of Mediee
on April 7, 2009.
lan #22280 for the siting and desigt of
Commerce Pointe I and Commerce Pointe II with a maxirnum building
height of 36 feet, approved and adopted by the City Council of the City of
Menifee on April 7, 2009,
(e) Tentativc Parcel Map No. 2013-118 (pM36596) subdividing the Property
itrto eighteen (18) lots on Commerce Pointe I and Tentative Parcel Map No.
2013-I 1g (PM36597)subdividirg the Propcrty into six (6) lots on
Commerce Pointe ll, approved by the City Planning Commission on
October 8, 2013.
(f)Adrninistrati v e a in conjunction with the above mentioned Projectvals
Approvals, including
other detailed design
Commerce Pointe II.
but not limited to grading plans, landscape plans, and
and specification plans fur Commerce Pointe I and
E. Purpose of Development Agrcement. The City has detennined that the
Projcct is a development for which a development agleement is appropriate. A
tlevelopment agreement will climinate uncertainty in the city's land use planning process
and secure orderly development of the Project, assure progressive installation ofnecessary
improvonents and mitigation appropriate to each stage of developmcnt of the project, aud
otherwise achieve the goals and purposes for rvhich the Development Agreement Statute
rvas enacted. The Project will provide irnportant ernployment opportunities and is highly
capital intensive, especially in its initial phases, rvhich, in ordcr to make the project
cconomically and fiscally feasible, requires major commitment to and investment in public
facilities and on-sitc and off-site irnprovements prior to the construction and sale or
leasing of the light industrial units. Landowners desire certainty with respect to certain
eutitlements before expending thc necessary suns to prepare the plans, irnplement
mitigation, dedicatc property and construct the public facilities referred to in this
Agreement and to prusue other various pre-development work associated with the
development <lf the Project. The City desires to provide certsinty tlu.or.rgh this Agreement
with respect to infrastructure and specific development cr.iteria to be applicable to thc
Propefly in order to provide for appropriate t(ilization of the property and general
circulation in accordance rvith sound planning priuciples.
3
(1) Scott & Murrieta Road;
(2) Zeiders RoadAlaun Road & Scott Road;
(3) I-215 southbound rarnps & Scott Road;
(4) I-215 northbound ramps & Scott Road;
(5) Zeiders Road & Keller Road;
(6) Antclope Road & Scott Road; and,
(7) Har.ur Road & Holland Road.
(e)Constructing timely and needed backbone infrastructure to the surrounding
area, including the lollowiug public improvements:
(1) Zeiders Road between Scott Road and Kelter Road;
(2) Ciccotti Street between Zeiders Road and Bailey Park Boulevard;
(3) Bailey Park Boulevard near Ciccotti Strect;
(4) Undergroruding of utilities along Zeiders Road from thc south
Commcrce Pointe property line to the Scott Road intersectiou; and,
(5) Expanded storm drain and sewer facilities to meet projected regional
needs.
(0 Delivering a high quality industrial development that will enhance the
srrrounding community and provide opportunities to meet thc demands of
local and regional area businesses.
(g) Conserving and enhancing valuable biologically sensitive areas and open
space.
G. Public llcarings. On October 8,2013, pursuant to the requirements of the
Development Agreernent Ordinance, the City's Planning Commission conducted a public
4
F. Public Benefits Provided Pursuant to the Develooment Aqreement. The
City Council deterrnined that the development of the Project will afford the City, its
citizens and the sunounding region rvith the following primary benefits:
(a) Contributing to an increased quality of life for local residents by providing
jobs in closo proximity to the home, improving the jobs-to-housing balance
for citywide planning and reducing commute! haffic to San Diego, Orange
and Los Angeles Counties.
(b) Providing fiscal benefits to the City's general fund in terms of increased
property tax revetrues.
(c) Creating substantial anployrnent opportunities including both short-term
construction employment and long-term pcrmanent employnent within the
city.
(d) Providing funding for transportation improvunents at the following
intersections to help alleviate existing failing levels of service:
hearing on Landowners' application for this Development Agrcement. On November 6,
2013, pursuant to the requirements of the Development Agreernent ordinarrce, the Cityco,ncil conducted a public hearing on Landowners' application for this Developnrent
Agreement.
E, Findinss. The City Council has found and determined that this
Development Agreement: (i) is consistent with the city's Gcneral plan and the zoning for
the Property; (ii) is in the best interests ofhealth, safety and general welfare of the -ity,
its residents and the public; (iii) is entered into pwsuant to and constitutes a present
exercisc of police power by the City; and, (iv) is entered into pursuant to and in
compliance with the requircments of Section 65867 of the Development Agreement
Statute.
. L City Council Action, In accordance with thc Dcvelopment Agreement
oldinancc, the city council held a duly noticed public hoaring on this Agrccment antl,
after independent rcvicw and consideration, adopted ordinance No. 2013-133 frnding thisAgreement consistent with the ceneral Plan and authorizing the execution of this
Agreement, and such ordinance shall become effective on Decernb er 20,2013.
Agreement are derived from and include the policy determinations of the parties as
outlined in Exhibit "B" entitled "commerce Pointe Project - Material remrs fix pentling
De'elopment Agreement and Associated Tract Map," in the event that there is any conflici
between the Agreement and Exhibit "8", the provisions of the Agreement shall control,
. NOW, THEREFORE, in considcration of the mutual prornises, conditions and
covenants hereinafter set forth, dre Parties agee as follows:
J. Illaterial Terms. Notwithstanding the t'act that the provisions of this
AGREN,NTIJNT
L lncornoration of Rccittrls.Thc Preamble, the Recitals and all defined terms set
forth in both are hereby incorporated into this Agrcornent.
Definitions. Each refererrce in this Agreement to any of the follorving commonly
userl terms shall have the meaning set forth below for each suoh term.
2.1 Adoption Date,November 20, 2013, the date the City Council adopted the
Enacting Ordinance.
2.2 CEOA. The Califomia Envirorunental Quality Act (public Resourccs Code
$S 21000, et seq.) and the Cuidelines there under (Title 14, Cal. Code Regs. g
15000, et seq.).
2,3 Default. Defined in Section 15.
5
2.
2,4 Effective Date. The later of: (i) the date the Ordinance approving this
Agreement takes effect pursuant to Govemment Code g36937; or (ii) if the
Ordinance approving this Agreement or any other contemporane<.rus project
Approval is subject to a valid referendum procecding pursuant to Elections cttle
$3500, et seq., the date the Ordinance approving this Agreement or other project
Approval(s) is (or are) upheld pursuant to such referendum proceeding.
2.5 EIR. Tho Environmental knpact Report defined in Recital D above.
2.6 Exactions. A1l exactions, costs, fees, in-lieu fees or paymotts, cirargcs,
assessments, dedicatioru or other monetary or non-monet&ry requirement charged
or imposed by the City, or by the City tkougJr an assessmcnt dirt ict 1o, sirnil*entity), in connection with the development ol, conskuction on, or use of real
property, including but not limited to tr&nsportation improvement fees, park fees,art fees, affordable housing fees, infrastructurc fees, dedication or reservation
requironents, facility fees, sewer fees, water connection fees, building permit fees,
obligations for on- or off-site improvements or construction roquirements foi
Public hnprovements, or other condirions for approval cafled for in connection withthc development of or construction of the project, whethqr. such exactionsconstitute Public luprovements, Mitigation Measures in connection with
environmental review of the project Approvals or Subsequent Approvals, orimpositions made under applicable city laws and regulations oi in order to make anapproval consistent with applicable city laws and regulations. Exactions shall not
include Processing Fees as definul in Section 7.2 below.
2.7 Existi{re. Land Use Reeulations. Collectively, the Existing Lantl Use
Rcgulations shall rnean: (i) the City of Menifee General plan; (ii) planning andZoning Codes of thc City's Municipal Code; and, (iii) a1l other ordinances,
resolutions, regulations, and official policies goveming land use development andbuilding construction in efl'ect in the City as of ihc Adoption Daie of this
Agreemsnt, including but not limited to the pnrjer:t Approvals.
2.8 MinorModification.As defined iu Section 8.5.1
2,9 Mltisation Measures. The uritigation mea$ues applicable to the project
developed as part of the EIR process and requircd to be implemented by
Landowners, and adopted as part of the Project Approvals.
2.10 Mortqaqe, A mortgage or deed of trust, or other transaction, in which the
Property, or a portion thereof or an intere,st therein, or any improvernents theleon,
is conveyed or pledged as security, contracted in good faith and for fair value, or a
sale and leaseback aruangemcnt in which the prope(y, or a portion thsreof or an
interest therein, or improvemcnts thereon, is sold and leasecl baok concuffently
therewith in good faith and lbr fair value.
2,ll Mortqaqee. The holder of the beneficial interest under e Mortgage, or the
owner ofthe Property, or intercst therein, under a Mortgage,
6
2.13
2.t4
2,12 Proiect. As defined in Recital C.
Proiect ADprovals.As dehned in Recilal D
Propertv. As defined in Recital B.
Duration ofthe agreement. See Section 6.2 of this Agreement
Pemritted Uses of the ?foperty. See Section 7,1 of this Agreement.
Density or intensity ofsuoh use. See Project Approvals.
Maximum height and size of proposed buildings. See project
Approvals.
Resewation or dedicatiou of land for public purposas. See pro.iect
7
2.15 Public Improvements, The lands and facilities, both on- and off-sitq to be
improved end constructed by Landowncrs, and publicly dedicated or made
1v1_Latrc for public use, as provided by the project Approvals and ttris Agreement.
Public Improvunents consist of all right-of-way improvonents, steets and roa<ls
within tho Property; all utilities (such as gas, electricity, cablo tolevision, water,
server and sto-rm drainage); pedestrian and bicycle paths and trails; parks and opcn
space; the off-site public improvements; and all other impro'emenis and faciliies
required or called for by the Mitigation Measures, conditions of the prcject
Approvals, and this Agreernent to be implernented by Landowners.
2.16 SgDEquen! 3ppy3b. Approvals and actions of any kind or character
issued by the City following the Adoption Date of this Agreement that implementor change the Project Approvals, including, but not limited to, the prqect
Approvals, subdivision maps, plot plans, urinor administrative permits, sign
permits, lot mergers, building permits, use perrnits, variances, demotltion permits,
site clearance, grading plans and permits, substantial couformance rteterminations,
certificates ofoocupancy, municipal financing, abandonrnent ofstreets or rights-of-
rvay, and riglrt-of-way transfers.
2,17 'Iermination. The expiration of the Term of this Agreement without
extension, whether by the passage of time or by any earlier occlurence pursuant to
any provision, including an uncured Default, of this Agreement. Foi purposeshereof "Termination" includes any grammatical variant thereof, including
"Terminato," "1'erminated," and',Terminating.',
2.t8 Vested Riehts. As defined in Section 7.
3. Provisions Required by Stttute. Califomia Govemment Code 9965865.1 and
65865.2 providq among other things, that a development agrcement shall specify
the follorving:
(a)
(b)
(c)
(d)
(c)
Approvals.
(0 Periodic Review at least annually to demonstrate good faith
compliance with the Development Agreernent. See Section 12 of
this Agreement.
4, Landowner Representations and Warranties,
The Landowners represent and wanent to the City, as follows:
(a) Organization. Each Landowner is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California" with fuli right, power and authority to conduct its
business as presently conducted aod to execute, deliver and perlorm
its obligations under this Agreement.
(b) Authorization. Each Landowner has taken all necessary action to
authorize its execution, delivery and, subjeot to any conditions set
forth in this Agreement, performance of the Agreemeut. Upon the
date of this Agreement, this Agreement shall constitute a legal, valid
and binding obligation of the Landowner, enforccablc against it in
accordance with its terms.
(c) No Conflict. The execution, delivery and performance of this
Agreement by each Landowner does not and will not materially
conflict with, or constitute a naterial violation or material breach ofor constitute a default under (i) the charter or incorporation
documents of the Landowter, (ii) any applicable law, rule or
regulation binding upon or applioable to the Landowner, or (iii) any
material agreements to which the Landowner is a party.
(d) No Litigation. Unless otherwise disclosed in writing to the City
prior to the date of this Agreement, therc is no existing or, to the
Landowner's actual knowledge, pending or threatened litigation,
suit, action or proceeding before any court or administrative agenoy
alfecting the Landowner or, to thc best knowledge of the
Landowner, the Property that would, if adverscly detemined,
materially and adversely affect the Landowner or the Property or the
Landou.ner's ability to per{orm its obligations under this Agreement
or to develop and operate the Project.
Licenses, Pennits, Consents and Approvals. Landowners ancVor any
pcrson or entity owning or operating the Properly havo duly
obtained and rnaintained, or will duly obtain and maintain, and will
continue to obtain atd maintain, all licenses, pennits, consents and
approvals required by all applicable governmental authorities to
develop, sell, lease, own and opcratc the Project on the Property.
8
(c)
5.
(f) Payment of Taxes. Landowners shall pay when due any and all real
estate t xes and asssssments (including any possessory interest tax)
assessed and levied on the Properfy or any portion thereof.
Relationshio of City and Lsndowrers. The Parties specifically acknowledge that
the Project is a private development, that neither Party is acting as the agent of the
other in any respect herermder, and that each Party is an indepcndent conbscting
entity with respect to the terrus, covenants and conditions contained in this
Agreement. None of the terms or provisions of this Agreement shall be deemed to
create a partnership between or anong the PBrties in the businesses oflandowners,
the affairs of the City, or otherwise, nor shall it cause them to be considerod joint
venturers or mffnbers of any joint enterprise. The City and Landowners hereby
renounce the existence of any form ofjoint venture or partnership betwccn them,
and agrcc that nothing contained herein or in any document executed in comection
herewith shall be construed as making the City and Landowners joint ventulers or
partners.
6. Effective l)atc and Term.
6.1 Effective Date. The effective date of this Agreement is Docember 20,
2013, which is the effective date of City Ordinance No. 2013-133 adopting this
Agreanent, unless said Ordinancc or any other contemporaneous project Approval
is subject to a valid referendun. Not latcr than ten (10) days after the Adoption
Date, the City and landowners shall execute and acknowledge this Agreement.
Not later than forty (40) days aller the Adoption Date, the City Clcrk shall cause
this Agreernent to be recorded in the Offioial Records of the County of Riverside,
Statc of Califomia, provided that a referendum applicable to the Development
Agreernent has not besn timely submitted to the City.
6,2 Term. The term of this Agreement shall commence on the Efl'ective Date
and continue thereafter for ten (10) years tmless said Initial Term is terminated,
modificd or cxtcnded by the terms of this Agreernent.
6.3 Extension of Term Due to Litigation. In the event that litigation is filed
by a drird party which seeks to invalidate this Agreonent or any of thc project
Approvals, the term of this Agreernent shall be extended for a period equal to the
length of timc tiom the time a sumrnons and complaint and/or petition are served
on the defendant(s)/tespondent(s) until the reso'lution of the matter is final and not
subject to appeal; provided, however, that the total arnount of time for which the
tenn shall be extended ar a result of any and all litigation shall not exceed two (2)
yeal's.
6.4 Term of Proiect Approyals. The term ofany and all Pro.ject Approvals,
including but not limited to those Project Approvals already granted as Existing
l,and Use Regulations as well as Subsequent Approvals, if any, for the project,
shall be extended automatically through the term of this Agreernent,
9
(a)This AgreerneItt shall automatically be tenninated, without any
further action by either party or need to record any additional
document, with respect to any single industrial building or industrial
condominium comprising a portion of the Property, upon
completion of construction and issuance by the City of a final
certificatc of occupancy permit for the industrial unit, and
conveyaD.c€ of such indusfial unit to a bona-fide good-faith
purchaser (e.9., individual building owrer or end-user). In
connection with its issuance of a final inspection for such indushial
unit, the City shall confirm that all improvements, which are
requirod to serve the unit, as determined by the City, have been
accepted by the City.
(b) Upon the conveyance of any lot, parcel, or other property to a
property owners' association, or public or quasi-public entity, that
lot and its owner shall have no further obligations under and shall be
released from this Agreement.
6.6 ts and tions U nEx crmina Follorving
Termination ofthis Agreement all of the rights, duties and obligations of the parties
hereunder shall tennin&te and be ofno further force ancl effect. Upon Tormination
of this Agreement, Landowners shall thereafter cornply with the provisions of all
City ldws and regulations then in effect or subsequently adopted with respect to the
Property end/or the Project, except that any Termination shall not affect any right
vested (absent this Agreement), or other rights arising from approvals granted by
the City for developmcnt of all or any portion of the Project.
Vestcd Rlehts.
7,1, DeveloDment Itishts . Except as set forth in Sections 7 .2, 7.3, 7 .4 and 8.5
below, during the term of this Agreement the Landowners are provided aud assured
the right to develop and use thc Property in accordance with this Agreement, the
Project Approvals, and the Existing Land Usc Regulations in force and effect on
the Adoption Date of this Ageement to the maximum extent allowcd under this
Agreement (the "Vested Rights"). The permitted uses of the Property, the dcnsity
aad intensity ofuse, the rate, timing and sequencing ol'development, the nraximum
height and clesign and size of proposed buildings, the parking standards, and
provisions for reservation and dedication of laud, shall be those set forth in the
Vested Rights.
7 .2 Fees. Taxes and Exactions . The Landowners shall pay when due all
[xactions duly imposed by the City on the Project and/or the Property as part ofthe
Project Approvals and Existing Land Use Regulations. Notivithstanding the
10
T
7,
notwithstanding any other City larv.
6.5 Automatic Terminatiou Upon Comoletion and Sale of Units,
7 .6 Chanscs in Statc or Fcderal Law.This Agrccmcnt shall not preclude the
applicafion to developmellt ol Lht: Property ol Subsequent Rules mandated and
requiled by prccmptive changes in State or federal larvs or regulations.
ect and Public Improvcments.
ll
ll. Dcvelopment of the Proi
foregoing, the Dcvelopment Impact Fees applicable to the Project, as set forth in
the attached Exhibit "C", shall be subject to moratorium during the Term of this
Agreement. The Development Impact Fees shall not be modified or renegotiated
by the City during the moratorium in connection with granting of any modification
or amendment of the Project Approvals, or the granting ofany approval which does
not materially alter the maximum density or intensity of the project. Landowners
shall pay those citywide application, processing, inspection, permit and plan check
fees and charges (the "Processing Fees") required by the Cify and in effect at thetime of the application for that pennit or approval. Landowners agree that
Landowners shall pay the City the firll costs of a contract planner or contact
building plan check pcrson if such services are determined to be necessary by the
City Manager; provided, however, that the Processing lees paid by Landowner to
the City shall apply as a credit against costs ofcontract planner or contract building
plan check person. This Agreement shall not limit the City's dght and power to
impose taxes on the Propcrty or Project provided that any taxes imposed are
adopted pursuant to all applicable laws and that said tax is a general tax that applies
throughout tho boundaries of the City,
7,3 Rules Reqerdins Desisn. Engineerinp and Coustrucdon for puHlc
Improvements. Except as providcd in Section 8.3 and 8.4 belorv, all ordinances,
resolutions, rules, regulations and olEcial policies goverrting engine61i11g,16
construction standards and specifications applicable to the Public Improvements
shall be those in force and effect at the time the tentative subdivision map for the
property that includes the specific improvement is approved.
7.4 Uniform Codes Apolicable. The Project shall bo constructed in
accordance with the provisions of the International Building, Mechanical,
Plumbing, Eiectrical and Fire Codes, City standard construction specifications, and
Title 24 of the California Code of Regulations, relating to Building Standards, in
effect at thc tirne of approval of the appropriate building, grading encroachment or
other construction permits for the Project.
7,5 Subseouent Rules. Except as set forth in Sections 7.2,7.3,1.4 and7.6,
during the Term of this Agrcement, the City shall not apply any City ordinances,
resolutions, rules, rogulations, official policies, or Exactions enacted after the
Adoption Date ("Subsequent Rule") that rvould conflict with or impede the Vestetl
Rights of Landowners set fofth in Section 7.1 above or otherwise conflict rvith this
Agreement or the Existing Land Use Regulations, without Landowners' written
consent.
8.1 Construction and Oper ation of the Proiect.Landownets shall have the
right to conshuct and operate the Project in accordance with the Vested fughts
described in Section 7 above.
8.2, Phasinq, The Parties acknowledge that presently Landowncrs canaot
predict the exact timing or sequeuce of the phasing of the Project. Landowners
thcrcfore shall have the right to develop the Project in phases in such order and at
such times, if at all, as Landowners deem appropriate within thc exercise of their
sole subjective business judgment and the provisions of this Agreement. Moreover,
subject to the conditions of the Pro.lect Approvals, Landowners may deterrrino in
their sole discretion which part of the Project to develop frst and thaeafter, and
Landowners may determine in their sole discretion when to record the first final
map for any portion of the Property. Because the Califomia Supreme Court held in
Pardee Cowttuction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the
failure ofthe parties in that case to provide for the timing of development rcsulted
in a later-adopted ioitiative restricting the timing ofdcvelopment to prevail over thc
parties' agreement, it is the specific intent of the Parties to provide for the timing of
development of the Project in this Agreement. To do so, the Parties acknowledge
and provide that Landowners shall have the right, but not the obligation, to
complete thc Project or Bny portion thereof in such order, at suoh rate, at such
tirres, and in as many dcvelopment phases and sub-phases as the landowners deem
appropriate in their sole subjective business judgrnent, provided such completed
poltion conlbrms to applicable Existing Land Use Regr.rlations.
8.3 Desisn and Constru ction of Zeiders Road,
8.3.1 Prior to issuance of thc first occupancy permit for the Project,
Landowners shall complete construction of Zeiders Road in accordance
with the street nproyement plans applcved on April 26,2071, sewer plans
approved on November 9, 2010, and water plans submitted February 2011.
8,3.2 Landowners agree to construct Phase 1 of the Zeiders Road
improvements to commence upon the eariier of (i) I 80 days after the first
permit is issued for mass grading of the Project, or (ii) July 1,2015. Phase
1 of Zeiders Road will includc minimum standards for a 2Jane paved
roadway from approximately 200 feet south of Ciccotti Street northward to
the improved section south of Scott Road, with one level of asphalt paving
and curb and gutter on the east side of Zeiders Road, but no sidewalks or
landscaping incorporated in Phase 1. The Phase I Zeitlers Road
improvement plans are attached hereto as Exhibit "D".
8.4 I)esisn and Con stl.uction of Ciccotti Strect.
8.4.1 Prior to issunnce of the first occupancy pennit for the Project,
Landowners shall complete construction of Ciccotti Street frorn Zeiders
Road to Bailey Park Boulevard.
tz
8.4.2 Laodowners agree to construct Phase 1 of the Ciccotti Street
improvernants flom Zeiders Road to Bailey Park Boulevard to minimum
all-weather standards for a 2-lane road (without curb, gutteq sidewalk or
landscaping) to commencr upon the earlier of: (i) 180 days after the first
permit is issued for mass grading of the Project; or (ii) July l, 2015. The
Phase 1 Ciccotti Street improvement plans are attached hereto as Exhibit
8.5 Subsequent Proiect Approvals. The development ofthe Project is subject
to fuhrc approvals and actions by the City that have not been reviewed or approved
by the City prior to the Adoption Date of this Agreement (i.e., Subsequent
Approvals), Subsequent Approvals may include discretionary and ministerial
actions by the City including, but Ere not limited to, review and approval of site
plans, landscape and irrigation plans, architectwal plans, tentative and,/or final
parcel and subdivision maps, additional tentative subdivision maps, condominium
plans, special permits, variances, donolition permits, plan review, design revicw,
grading pcrmits and building permits. In reviewing and acting on applioations for
Subsequent Approvals, the City shall cooperate with Landowners to expedite
review and final action on such requests. Once approved by the City, any
SLrbsoquent Approval shall become palt of the Project Approvals and Vested
Rights.
8.5.1 lvllnor Modifications. The Parties acknowledge that refinements or
modifications of the Project may be requiled during the 'l'erm. The Parties
agree that the follorving refinements and modifications to the Project or
Project Approvals constitute Minor Modifications: (i) changes in
landscaping; (ii) variations in the location or size of structtires that do not
increase the maximum aggregate floor area of the Project, including but not
lirnited to the consolidation or aggregation ofbuilding footprints as long as
no single building exceeds 250,000 square feet; (iii) variations in the
location of utilities or other inlraskucture connections or facilities not
materially aft'ecting design concepts; (iv) variations in the open space or
conservation area configurations that do not reduce the aggregate size of
open space or corservation area; (\) minor adjustments to the tentative or
final map or to the legal descriptions to ac.commodate approved
modifications to other Projcct Approvals; (vi) map phasing and
condominiurn plars; and (vii) similar modifications or other changes that
are ruinistorial in nature and are not subjcct to further review under CEQA.
Notwithstanding any other provision of the Existing l,and Use Regulations,
a request for a Mi-nor Modification shall be approved administrativcly
unless appealed to the Planning Commission in accordance with Section
2.20.1J0 of the Menifee Municipal Code in existence as of the Adoption
Date of this Ag'eement. Mhor Modifications shall be deerned to be
rninistodal in nature and shall not require an amendment to this Agrccment
or public hearing. The City shall not umeasonably withhold or delay the
approval of a requested Minor Modification nor shall the City inlpose as a
13
condition to approval any Exaction except as authorized in this Agreement.
8,5,2 Subdivision of Prooertv - Future Tentati ve Maps.In accordanoe
with the provisions of this Seotion, Landowners shall have the right, from
time to time or at any time, to apply for one or more parcel or tract maps or
condominium plans, subdividing the Ptoperty into smaller developable
parcels, as may be neoessary in order to develop, lease, finance or sell any
portion of the Property in connection with development of the projoct as
provided in this Agreement and consistent with the density and intensity set
forth in the Existing Land Use Regulations. Final maps may be approved
on a phased basis.
8.5.3 Other Subsequent Pmject Approvals. Any change in the project
rvhich is not a Minor Modification as defined herein shall require a
subsequent discretionary action by the City as required by Existing Land
Use Regulations, which shall be applicable to such project changes. A
subsequent discretionary action shall not prevent development of the land
for the uses and to the maximum density or intensity of devclopment
established in the Project Approvals for the Term of this Agreernent
pursuant to Govemment Codc Section 65865,2.
E.5.4 uent Environm The Parties acknowledge that
the EIR for the Projcct contains a thorough analysis of the Project ald
Project alternatives and specifics the feasible Mitigatiou Meastues
necessary to eliminate or reduce to an acceptable level adverse
environmental impacts of the Project, and acknowledge that the City
Corurcil issued a statement of overriding considerations in connection rvith
dre Project Approvals, pursuant to 14 California Code of Regulations
(CEQA Guidelines) Seotion 15093 for those significant impacts which
could not be mitigated. [,'or these reasons, no further review or mitigation
under CEQA shall be required by the City for any Subsequent Applovals
unless the criteria for further environmental review under CEQA are met as
specified in Califomia Public Resources Code Section 21 166.
8,6 Other Governmental Permits. Landowners shall apply for such other
pennits and approvals as may bc required from other govemmental or quasi-
govemmental agencies having jurisdiction over the Project as may be required for
the development o1, or provision of services to, thc Project. The City shall
reasonably cooperate with L:rndowners in their endeavors to obtain such perrnits
and approvals and, Iiom time to time at tho request of Landowners, shall attempt
with reasonable efforts and in good faith to enter into binding agreements with any
such entity in order to assure the availability of zuch permits and approvals or
sorvices.
8.7 Easementsi Improvemeuts: Abandonments. The City shall reasonably
coopera.te with Landorvners in connection rvith any arrangements for abandoning
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existing utility or other easemonts and facilities aud the relocation thereof or
creation of any new easements within the Property necessary or appropriate in
connection with thc development of the Project; and if any such easement is owned
by the City or an agency ofthe City, the City or such agency shall, at the request of
Landowners, take such action and execute such documents as may be reasonably
necessary to abandon existing cascmcnts and relocate thern, as uecessary or
appropriate in connection with the approved development ofthc Project.
8.8 Conscrvltion Easement, The City agrees to accept the dedication of a
conservation easement in accordance with Califomia Civil Code Section 815-816
for the portion of the Property identified on Exhibit "F" to protect and maintain
habitat mitigation areas in perpetuity (the "Conservation Easement"), provided that
Landownerc have establishcd a secured method for funding the anticipated long-
term maintenance costs of the easernent area, including but not limitcd to the
posting of a bond, endowrnent, or certificato of deposit, or by including the
maintenance costs of the Conservation Easement in an appropriate linancing
district. The Conservation Easement shall bo conveyed substantially in the form
attashed as Exhibit "G".
8.9 t'UMIr Credits for ase I Improvements.The City will use its best
efforts to obtain approval to permit the use of Westem Riverside Council of
Governmcnts C'WRCOC') Transportation Uniform Mitigation Fees ("TUMF'') for
the improvernents to Zcidcrs Road and Ciccotti Street, such that the Landorvners'
costs for delivery of the improvcments is credited against the Landowners'
obligation to pay the applicable TUMF for the Project. If thc cost of the
improvements to Zeiders Road and Ciccotti Street excee<is the Landowners' TUMF
obligation, the Landowners may request, to WRCOG, a reimbursement for such
costs through the TUMF progr&m. To the extent permissible, the City witl provide
construction in lieu Road & Bridge Benefit Dishict ('RBBD) fee credits for thcse
improvernents. ln no case shall duplicate fee credits be issued for the samo costs
related to eligible improvements.
9, Transfers and Assignnrcnts.Subject to the terms of this Section 9, any
Landowner shall have the right to assign or fansfer (collectively "Transfed') all or
any portion of its interest, riglrts or obligations under this Agreement to third
parties or entities (thc "Transferee") acquiring an interest or estate in all or a
portion of the Property (thc "Trausfcrred Property"), including, but not limited to,
purchasers ot long term glound lessees of individual lots, parcels, industrial
condominiums or of any of the buildings located upon the Property. Landownsr
shall rernain jointly liable for all obligations and requirements under this
Ageement aftet the effective date of the Transfer unless Landownff satisfies the
following conditions: (i) Transferee executes and delivors to the City an
Assignment and Assumption A$oernent in the fomr set forth in Exhibit "H" to this
Agreement specifying the obligations and requiranents to be assumed by thc
Transferee; and (ii) Landowner has not received a notice of a Default under this
Agreement that remains uncured as of the etTective date of the Transfer. lf
l5
conditions (i) and (ii) are satisfied, Landowner shall be released from any further
liability or obligation under this Agreement related to the Transfered Property as
specified in the Assignment and Aszumption Agreemeot, and the Transferee shall
become the "Landowner" under this Ageunent with all rights and obligations
related thereto, with rcspect to such Tra:rsferred Property. Notwithstanding
anything to the contrary contained in this Agreement, if a Transferee Defaults
under this Agreement, such Default shall not constitute a Default by landowner
with respect to any other portion of the Property hereunder and shall not entitle the
City to Terminate or modif, this Agreement with respect to such other portion of
the Property.
10. Lender Oblisatious and Protections.
10.1 Encumbrances on the Propertv, The Partics hereto agree that this
Agreement shall not prevent or limit Landowners, in any manner, from
encumbering the Property or any portion thereol or any improvements thereon with
any Mortgage securing financing with respect to the construction, development,
use, or operati.on of the Properly.
10.2 Mortsaeee Oblisations. A Mortgagee not in legal possession of the
Property or any portion thereof shall not be subject to the obligations or liabilities
of the Landowners under this Agreement, including the obligation to construot or
complete construction of improvements or pay fees. A Mortgagee in legal
possession shall not have any obligation or duty under this Agreanent to constsuct
or complete the constnrction of imp'rovements, or to pay, perform or provide any
fee, dedication, improvements or other exaction or imposition. A Mortgagee in
legal possession ol the Property or portion thereof shall only be ertitled to use of
Property or to construct any improvernents on the Property in accordance rx.ith the
Project Appmvals and this Agreonent if Mortgagee fully complies with the terms
offlris Agreernent.
10.3 Mortgaqee Protection, 'l'his Agreement shall be superior and senior to any
lien placed upon the Property, or any portion thereof, after the date of recording
this Agreement, including the lien for any dc.cd of trust or Mortgage.
Notwithstanding the foregoing, no breach of this Agreement shall defea! render
invalid, diminish or impair the lien of any Mortgage made iu good faith and for
value, but all the terms an<l conditions contained in this Agreernent shall be binding
upon and effective against any person or entity, including any deed of trust
beneficiary or Mortgagee that acquircs title to the Property, or any portion thereof,
by foreclosure, tnrstee's sale, deed in lieu of foreclosure, or otherwise, and any such
Mortgagee or successo( to a Lender th&t takes tifle to the Pfoperty or any portion
thereof shall be entitled to the benefrts arising uuder this Agreement.
10.4 Notice of Default to Mortgaqeet Right of Lender to Cure. If the City
receives notice from a Mortgagee requesting a copy of any notice of Default given
Landowners under this Agreonent and specifying the address for service thercof
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then the City shall deliver to zuch Mortgagee, concurrently with service thereon to
Landowners, any uotice given to Landowners with respect to any claim by the City
that l,andowner(s) is/are in Default and/or Certificate of Non-Compliance. Each
Mortgagee shall have the right during the same period available to Landowners to
cure or remedy, or to commence to cure or remedy, the Default or non-compliance
as provided in this Agreemcnt; provided, however, that if the Default,
noncompliance or Certificate of Non-Compliancc is of a nature which can only be
remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee
may seek to obtain possession with diligence and continuity through a receiver or
otherwise, and shall thereafter remedy or cure the Default, noncompliance or
Certificate of Non-Compliance within ninety (90) days after obtaining possession.
If any such Default, noncompliance or Ceftificate of Non-Compliance cannot, with
diligence, be remedied or cured within such niuety (90) day period, then such
Mortgagee shall have such additional time as may be reasonably necessa.ry to
remedy or curc such Default, noncompliance or Certificate of Non-Compliance
(including but not limited to proceeding to gain possession ofthe Properfy) ifsuch
Mortgagee commences cure during such ninety (90) day period, and thereafter
diligently pursues completion of such cure to the exter:t possible,
11. Estopoel Ccrtificate. tsithcr Party may, at any time, and from time to time, deliver
written notice to the other Parly requesting such Party to certify in writing that, to
the knowledge o{ the certifying Party: (i) this Agreement is in futl force and effect
and a bhding obligation of the Parties; (ii) this Agreemcnt has not been arnended
or rnodified either orally or in rvriting, and if so amended, idenfifying the
amendments; (iii) the requesting Party is not in Default in dte performancc of its
obligations under this Agreeme[t, or if in Default, to describe thel.ein the nature
and amount of any such Defaults; and, (iv) snch other information as may
reasonably be requested. A Party receiving a request hcrcunder shali execute and
retum such certificate within thirty (30) days following the receipt thereof. Thc
City Manager shall have the right to execute any certificate requestetl by
Laudovrers hereunder. The City acknowlcdgcs that a celtiflcate hereunder may be
relied upon by 'I'ransferees, Lenders and Mortgagees.
12, Annual Review,
l2,l Revicrv f)ate. Thc arLnual review date for this Agreement shall ocour each
year on the anniversary date of the Effective Date of this Agreement ("Arurual
l{eview Date").
12,2 Required Information from Landowners. Not more thar sixty (60) days
and not less than forty-five (45) days prior to the Annual Revierv Date, the
Lando\rmers shall provide a letter to the City Managcr or his,{rer designee
containing evidence to show compliance wlth this Agreement. The burden of
proof, by substantial evidence, of compliance is upon the Landowners.
12,3 Citv Report. Widrin forty (40) days after Landowners subrnit their
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lette(s), the City Manager or his/her designee shall review the information
submitted by Landowncr(s) and all other available evidence on Landowners,
compliance with this Ageement. All such available evidence including public
corrunents and final staff reports shall, upon receipt of the City, be made available
as soon as possible to Landownem. The City Manager or his/her designee shall
notify the Landowners in writing whether the Landowners have cornplied rvith the
terms of this Agresrnent. If the City Manager or his/her dcsigrree finds one or more
of the Lsndowners in compliance, the City Manager or his/hcr designee shall issue
a Certificate of Compliance with respect to those Properties in compliance. If the
City Manager or his/her designee finds one or more of the Landowners not in
compliance, thc City Manager or his/her desigree shall issue a Certificate of Non-
Compliance with respect to those properties not in compliance after following the
procedures set forth in Section 12.4.
12.4 Non-compliance with Aqreement: Ilearine. Prior to issuing a Certificate
of Non-Compliancc, if the City Manager or his/her designee, on the basis of
substantial evidence, finds that a Landowner has not complied with the terms of
this Agreement, he/she shall specifu in writing to Landowner, with reasonable
specificity, the respects in rvhich Landowner has failed to comply. The City
Manager or his/her designee shall also speci$r a reasonable time for Landowner to
meet the terms of compliance, which time shall be not less than thirty (30) days,
and shall be reasonably related to the time necessary for Landowner to adequately
bring its perfounance into complianco with the terms of this Agrcement, subject to
any permitted delay. If afl.er the reasonable time for Landowner to meer the terms
of compliance has passed and the City Manager or hiVher designee, on the basis of
substantial evidence, continues to find that the Landowner has not complied, then
the City Manager or his,fter designee shall iszue a Certificate of Non-Compliance.
Any Certificate of Non-Complianoe shall be made in writing with reasonable
specificity as to the reasons for ths determination, and a copy shall be provided to
Landownor. If the City Manager or his/her designee issues a Certiflcate of Non-
Compliance, then the Landowner that is not in compliance shall be entitled to
appeal such determination to the City Council with an opportunity to proscrt
evidence at a hearing. If thc non-compliance involves a material obligation of this
Agreement, the City may proceed with the procedure rcgarding Dsfault in Section
l5 below.
12.5 Costs. Costs reasonably incuned by the City irr connection with the annual
review and related hearings shall be paid by Landowners in accordance wiflr the
City's schedule of fees and billing rates for stafftime in effect at tle tirne of review,
12,6 Effect on Transferees. If a Landowner has ellected a transfer so that its
interest in thc Property has been divided between Transferees, thon the annual
revier.v hereunder shall be conducted separately with respect to each Party.
Intlem-uification. Landowners agree to indemnify, defend and hold hannless the
City, any City agencies and their respective elected and appointed councils, boards,
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13.
commissions, officers, agents, employees, volunteers snd representativcs Aom aDy
and all loss, liability, fures, penalties, forfeitures, costs and damages (whether in
contract, tort or strict liability, including but not limited to personal injury, death at
any time and property damage) and from any and all claims, demands antl actions
in law or equity (including reasonabie attorneys' fees and litigation expenses) by
any thid-party or entity, directly or indirectly arising or alleged to have arisen out
of or in any way rclatcd to: (i) the approval of this Agreement or the Project
Approvals; (ii) any development or use of the Property under this Agreement or the
Project Approvals; and (iii) any actions or inactions by the Landowners or their
c.ontractors, subco[tractors, agents, or employees in connection with the
construction or improvement of the Property and the Project; provided, however,
that once the City accepts the Public knprovements, Landowners' indemnification
obligation with respect to such irnprovements shall cease. Notwithstanding the
foregoing, Landowners shall have no indemnification obligation with rcspect to the
following: (i) the gross negligence or willful misconduct ofthe City, its contractors,
subcontracton, agents or ernployees; (ii) the maintenance, use or condition of any
improvernent or portion of the Property after the time it has been dedicated to and
accepted by the City or another public entity, or taken over by a property owncr's
association; and, (iii) the public use easements after the time the public use
easements have beefl occepted by thc City.
14. Anendment, CancCllation or Susrrension.
14.7 Modification Because of Conflict rvith State or l'ederul Laws. ln the
event that State or Fcdcral laws or regulations enacted after the Effective Date of
dris Agreement prevent or prccludc compliance with one ot more provisions of this
Agreerrent or require substantial and material changes in Project Approvals, the
parties shall meet and confer in good faith in a reasonable ettcmpt to modify this
Agreement to comply with such federal or State law or regulation. Any such
amendment of the Agreement shall be approved by the City Council in accordanoe
with State law, the City Municipal Code, and this Agreement,
14.2 Anrendment tual Consent. lhis Agreement may be amended in
writing from time to time by mutual consent of the parties hereto and in accordance
with the procedures of State law, the City Municipal Code and this Agrcement.
14,3 Substantive Anrcndments.Any substantive modification to this
Agreement shall require approval of an amcndment to this Agreemort in
accordance with State law and the City Municipal Code. No Amendmsnt to this
Ageement shall be required due to a change to the Project or the Project Approvals
as permitted or authorizcd by this Agreement.
19
74.4 Canccllation by Mutunl Consent, This Agreernent may be Tennilated in
whole or in pan by the mutual consent of the parties or their successors in interest,
il accordance with the provisions of the State larv a d the City Municipal Code.
15.Default Subject to Section 19, a Par$s violation of any material tenn of this
Agreement or failure by any Party to perfom any material obligation of this
Agreernent required to be performed by such Party shall constitute a default
("Default").
15.1 Procedure Reqardins Defeults. For purposes of this Agreement, a Pany
claiming anothcr Party is in Default shall be refemed to as the "Complaining Party,"
and the Party alleged to bc in Default shall be referred to as the "Party in Default. "
A Complaining Party shall not exercise any of its remedies as the result of Default
unless such Complaining Party first gives notice to the Party in Default as provided
in this Section, and the Party in Default fails to cure such Default within the
applicable cure period.
75.2 Nodce, The Complaining Party shall give written notice of Default to the
Party in Default, specifying the Default alleged by the Complaining Party. Delay
in giving such notice shall not constitute a waiver ofany Default nor sha1l it changc
the time of Default.
15.3 @ Subjcct to Section 19, the Party in Defaulr shall have thirty (30) days
from receipt of the notice of Default to effect a cure prior to exercise of remeclies
by the Cornplaining Party. Ifthe nature ofthe alleged Default is such that it connot
practicably be crued within such thirty (30) day period, the cure shall be deemed to
have occurred within such thirty (30) day period if: (a) the cure shall be
comrnenccd at the earliest practicable date foilowing receipt of the notice; (b) the
cure is diligently prosccutcd to completion at all times thereafter; (c) at the earliest
practicable date (in no evcnt latcr than thirty (30) days after the curing Party's
receipt of the notice), the curing Party provides written notice to the othcr Party that
the cure cannot practicably be completed within such thirty (30) day period; and (d)
the cure is cornpleted at thc carliest practicable date. The Party in Default shall
diligently endeavor to cure, correct or remedy the matter complained of, provided
such cure, conection or remedy shall be oompleted rvithin the applicable time
period set forth herein after receipt of written notice (or such additional time as
may be agreed to by the Complaining Party to be reasonably necessary to corect
the matter).
15.5 No Cross Default. Notwithstanding anlhjng to the contrary in this
Agrccmcnt, if a Landowner has effected a Transfer so that its interest in thc
Proporty has beerr divided between Transferees, then any dctennination that a Party
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15.4 Procedure for Terminatine Aqreement upon Default. If the City desires
to Terrninate this Agreement in the event of a Default, the matter shall be set for a
public hearing bcforc thc City Council. The burden of proof of whether a Party is
in Default shall be on the Complaining Party. If the City Council determines that a
Landowner is in Default and has not cured to the City's reasonable satisfaotion, or
that the Del?tult presents a serious risk to public health, safety or welfarc, the City
Council may Terminate this Agreernent.
is in Default shall be effective only as to the Pany to whom the detemination is
made and the portions of the Property in which such Party has an intsrest.
76. Lesal Actions bv Parties to the Agreement.If either Party brings an action or
proceeding (including, without lirnitation, any cross-complaint, counterclaim, or
third-party claim) against the other Party by reason of a Default, or otherwise
arising out of this Agreement, the prevailing Party in such action or proceedilg
shall bc entitled to its costs and expenses of suit, including but not limited to
reasonabl e attomeys' fees (including, without limitation, costs and expenses),
which shall be payable whether or not such action is prosecuted to judgment.
"Prevailing Party" within the meaning of this Section shall include, without
limitation, a Party who dismisses an action for recovery hereunder in exchange for
payrnent of the sums allcgcdly due, performance of covenants allegedly breached,
or oonsideration substantially equal to the relief sought in the action.
17.Third Partv Court Action. If any court action or proceeding is brought by any
third party to challenge any Project Approval or this Agreemen! Landowners shall
have the right to Terminate this Agreunent upon thirty (30) days'notice in writing
to the CitS given at any time during the pendancy of such action or proceeding, or
within ninety (90) days after the final determination therein (including any
appeals), irrespective of the nature of such final detennination. Any such action or
procccding shall constitute afl excuse for nonperformance pursuaut to Section 19.
18.Asrcemcnt Runs with thr l,and.Except as otherwise provided tbr in this
Agreement, all of the provisions, agre€ments, rights, terms, powers, standards,
covsnants, and obligations contained in this Agreonent shall be binding upou the
parties and their respective heirs, successors and assignees, represortatives, lessees,
and all other persons or entities acquiring the Property, or any portion thereof, or
any intcrest therein, whether by operation of law or in any manner whatsoever. All
of the provisions of this Agreernent shall be enforceable as equitable servitude end
shall constitute covonants running with the land pwsuant to applicoble laws,
inoluding, but not limited to, Section 1468 of the Civil Code of the State of
Califomia, and ths burdens and benefits shall be binding upon and inure to the
benetit of each of the Parties and their respective heirs, successors (by rnerger,
consolidation, or otherwise), assigns, devisees, administrators. representatives, aud
lcssccs.
19. Excuse for Nonperformance.Notwithstanding anything to the contrary in this
Agrccment, Landowners and the City shall be excused from performing any
obligation or undertaking provided in this Agreement in the event and so long as
the performance of any such obligation is prevented or deiayed, retarded or
hinderod by act of God, fire, earthquake, flood, explosion, action of the elonents,
war, invasion, insurrection, riot, mob violence, sabotage, shikes, Iockouts,
condemnation, litigation challenging this development agreement or project, court
ordel or any other reason not caused by and not within the conhol of the Party
claimir:g the extension of tirne to perform. The Parly claiming such extension sha1l
21
send written notice of the claimed extension to the other parly within thirty (30)
days from the commcncement ofthe cause entitling the Party to the extension.
20. Seversbility,Exo€pt as set forth herein, if any term, covena.lrt or condition ofthis
Agreement or the application thereof to any person, entity or circumstance shall, to
any extent, bc invalid or unenforceable, the remainder of this Agreemen! or the
application of such term, covenant or condition to persons, sntities or
circumstances othcr than those as to which it is held invalid or unenforceable, shall
not be affected thereby and each term, covenant or condition of this Agreernent
shall be valid and be enforced to the fullcst extent perrnitted by law; provided,
however, if any provision of this Agreement is determined to bc invalid or
unenforceable and the effect thereof is to deprive a Party hereto of an essential
benefit of its bargain hereundcr, then such Party so deprived shall have the option
to Terrninate this entire Agreement from snd a.fter such dctcrmination.
21. Waiver: Remedics Cumulative.Failure by a Party to insist upon the strict
performance of any of the provisions of this Agreernent by the other party,
irespective of the lcngth of time for which such failure continues, shall not
constihrte a waiver of such Party's right to demand skict compliance by such other
Parfy in the future. AII of the remedies permitted or available to a Party un<ler this
Agreement, or at law or in equity, shall be cumulative and not altemative, and
invocation of any such right or remedy shall not constitute a waiver or election of
remedies with respect to any other permitted or available right or remedy.
72. Aonlicable Law nnd Venue.This Agreement, and the rights and obligations of
the Parties, shall be govcrncd by and interpreted in accordance with the laws of the
State of California. The parties agree that any lawsuit or lcgal proceeding arising
hereunder shall be heard in dre Superiol Court of Califomia tocated in Riverside,
California.
,1 Notices. Any notice to eithor Party required by this Agreement shall be in wr.iting
and given by delivering the same to such Party in person or by sending the sarne by
registered or certified mail, or express mail, retum receipt requested, with postage
prepaid, to the Party's mailing address. The respective mailing addresses of the
Parties are, until changed as hereinafter provided, the following:
City:City of Menifee
ATTN: City Clcrk
29714 Haun Road
Menifee, CA 92586
a
With a copy to:
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Peter G. Aylward
Strategic Property Advisers, Inc
3250 Vista Diego Road
Jamul, CA 91935-2014
With a copy to:Dennis Fitzpahick
PacTen Partners
1689 Comstock Avenue
Los Angeles, CA 90024
Any Party may change its maiiing addrcss at any time by giving written notice of
sucb change to the other Party in the manner provided herein trt least ten (10) days
prior to the date such change is effected. All notices under this Agreanent shall be
deerned given, received, nrade or communicated on the date personal delivety is
affccted or, if mailed, on the delivery date or attempted delivery date shown on the
return receipt.
24. Recordation. Thc City shall cause this Agreement, any amendment hereto and any
Termination of any parts or provisions hereof to be recorded, at Landowners'
expense, vrith the County Recorder within forty (40) days of the Adoption Date
thereof. The failure of the City to record this Agreement or its Termination or
amendment shall not affect the validity of and binding obligations set forth in said
document.
25.Further Assurances. Each Party covenants, on behalf of itself and its succcssors,
heirs and assigns, to take all actions and do all things, and to execute, with
acknowledgment or affidavit if required, any and all documents and writings that
ruray be necessary or propel' to achieve the purposes and objectives of this
Agreement.
26.Entire Agreement. 'l'his rvritten Agreement and the Exhibits contnin all thc
representations and the entire agreement between the Parties with respect to the
subject matter hereof. Except as otherwise specified in this Ageernent, any prior
conespondencc, rnernoranda, agreements, wan anties or reprcsentations are
superseded in total by this Agrccment.
27, Construction of Aqreement. Tho provisions of this Agrccflcnt aud the Exhibits
shall be construed as a whole according to their common meaning and not strictly
for or agailst any ?arty in order to achieve the objoctives and purpose <lf the
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I-andowner
28.
29.
30. Prevailing Wases.Contractor is aware of the requiremotts of California Labor
Code Section 7720, et seq., and 1770, et seq., as well as Califomia Code of
Regulations, Title 8, Section 1600, et seq., ('?revailing Wage Laws"), which
rcquire the payment of prevailing rvage rates and the perfonnance of other
requiranents on "Public Works" and "Maintenance" projects. Landowners are
responsible for determining whether the Prevailing Wagc laws apply to the
tramportation improvemort projects set forth in Recital F. If Landorvners
dctcrmine thBt the transportation improvements set forth in Recital F are being
constructed as part of an applicable "Public Works" or 'Maintenance" project, as
defined by the Prevailing Wage Larvs, and if the total compensation is $1,000 or
more, Landowners agree to fully comply with such Prevailing Wage
Laws. Landowners shall detennine the applicable prevailing rates and make copies
of the prevailing rates of per diem wages for each craft, classification or type of
worker needed to perfonn the necessary work available to interested parties upon
request, and shall post copies at the Landowner's principal place ofbusiness and at
the project site. Landownsr shall defend, indemnify and hold the Cify, its olected
officials, officers, employees and agents liee and harmless liom any clainr or
liability arising or.rt of any failure or alleged failurc to comply with the Prevaiting
Wage Laws.
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Parties. The captions preceding the text of each Article, Sectioq subsection and
the Table of Contents are included only for convenience of reference and shall be
disregarded in the construction and interpretation of this Agreement. Wherever
required by thc contcx! the singular shall inciude the plural and vice versa, and the
masculinc gender shall hclude the ferninine or neuter genders, or vice versa.
Exhibits to this Agreement shall be incorporated into this Agreeorent as if stated
fully herein. The use in this Agreernent of the words "including", ',such as,' or
words of similar import lvhen following any general term, statement or matter shall
not b€ construod to limit such statement, term or matter to the specific items or
matters, whether or not language of nonJimitation, such as ,'without limitation" or
"but not limited to", or words of similar import, are used with reference thereto, but
rather shall bc deemed to refer to all other iterns or matters that could reasonably
fbll within the broadest possible scope of such statement, term or matter. This
Agreement has been reviewed and revised by legal counse'l for both landowncr and
the City, and no presumption or rule that ambiguities shall be construed against the
drafting Party shall apply to the interpretation or enforcement of this Agreement.
Sisnature ,Pases. For convenience, the signafuros of the Parties to this
Agreement may be executed and aoknowledged on separate pagas in counterparts
which, when sttached to this Ageement, shaJl constitute this as one conrplete
Agrecmcnt.
Time. Time is of the essence of this Agreernent and of each and overy term and
condition hcrcof.
[END OF TEXT; SIGNATUR.ES NEXT PAGE]
T
25
IN WITNESS WHEREOF, the City of Menifee, a municipal corporation, has authorized
the execution of this Agreement in duplicate by its Mayor and attested to by its City Clerk
under the authority of Ordinance No. 2013-133, adopted by the City Council ofthe City of
Menifee on the 20th day of November, 2013, and landowner has caused this Agreemenl to
be executed.
*CITY''..LANDOWNER''
CITY OF MENIFE E,
a mul.[
Scott A. Mann, Mayor
ATTEST:
Kathy Bennett,ity Clerk
Juli lg8s,yA
Zeiders Road Business Park, Inc.,
a Califomia corporation
By:
Commerce Pointe II Menifec, Inc.,
a Califomia corporation
By:
Ronald A. Schoen
Chief Financial O{ficer and Secretary
By: Strategic Property Advisers, Inc.,
a Califomia corporation
Its Authorized Advi Agent
By
Pet , Presid ent
Ronald A. Schoen
Chief Financial Officer and Secretary
By: Strategic Property Advisers, Inc.,
a Califomia corpo ration
lts zed and
By
100t2505?.lt
Iu22l)
76
Peter C., President
APPROVED AS TO FORM:
State of California
County of San Diego )
gn November27,2013 before me,J. Ott, Notary Public
(insert name and title of the officeQ
personally appeared
tn
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
J,T
WTNESS my hand and official seal.Commi$lon # 2021t31
l{otary Publlc , Calltornl!
Se[ Dlago Cornty
\ otn
Comm 1r!3 20.2011
Signature (Seal)r-l\J
ACKNOWLEDGMENT
Peter G.
who proved to me on the basis of satisfactory evidence to be the whose
to me executed the
on th6 instrument the
acted,the instrument.
State of California
County of San Oiogo )
gn November 27, 20'13 before me,J. Ott, Notary Public
(insert name and title of lhe officer)
personally appearod Peter G. A ard
whose 1tb
executed the same in
on th€ instrument the
executed the instrument
I certifr under PENALTY OF PERJURY under the laws of lhe State of California that the foregoingparagraph is lrue and correct.
WTNESS my hand and official seal J, OTI
Cornnistloa ,2021131l{ot.ry plbltc - CrlltorIir
S.n 0iie0 County
C&nm 20 20lt
Signature (Seal)
ACKNOWLEDGMENT
IN WITNESS WHEREOF', the City of Menifee, a municipal corporatior; has authorized
the execution of this Agreement in duplicate by its Mayor and attested to by its City Clerk
turder the authority ofOrdinance No. 2013- 133, adopted by the City Council ofthe City of
Menifee on the 20th day ofNovember, 2013, and tandowner has caused this A$ecment to
be executed.
.t-ANDOWNER"
CITY OFMENIFEE,
a municipal corporation
Zeiders Road Buslness Park, Inc.,
a Califomia corporation
Scott A. Mann, Mayor
ATTEST:
Kathy Bemrett, City Clerk
APPROVED AS TO FORM:
By:
A. Schoen
Chief Financial Officer and Secretary
By Strategic Property Advisers, Inc.,
a Califomia corporation
Its Authorizcd Adviser and Agent
By:
Peter G. Aylward, President
Commerce Pointe II Menifee, Inc,,
a Califomia corporation
4aJulie H. Biggs, City Attomey
Ronald A. Schoen
Chief Financial Officer ald Secretary
By: Strategic Property Advisers, Inc.,
a Califomia corporation
Its Authorized Adviser and Agent
By:
Peter G. Aylward, President
By:
30012J057.1l
inat3
26
..CTry"
State of California
County of
on ll- rls-_= ao t a betore me,te7L q-t6'DD NO
)
0ct C
personally appeared 'ilopn t\ - >c--/lc>€ NLI
IIELLY
Commlt.ion , l$0r5,
Lorfiy Puuh . cdlo.ra.
tor lag.l Cmt
who proved to me on the basis of satisfactory
evidence to be the personld whose name(g iyars
subscribed to the within instrument and acknowledgedto me that ha/Ohdlhey exscuted the same in
his/herAh"ir authorized capacity(lgs), and that by
his/hc#thoir signaturel, on the instrument the
person(rf, or the entity upon behalf of which the
person(rtracted, executed the instrument.
I certify under PENALTY OF PERJUBY under the
laws of the State of California that the toregoing
paragraph is true and correct.
WITNESS my hand and otficial seal
Signature
Prae tlol.ry S.d lrxlor $rFp ADov.
OPTIONAL
Though lhe inlormation below is not requted by law, it fiay prova vatuabto to persons relying on the documenr
and cguld pQvenl lraudulenl rcmovel and rcattachfient ol lhis toIn lo another documenL
Descrlption of Attached Documenl
Tltle or Type of Document
Document Dats:Numb6r ol Pages
Capacity(ies) Clalmed by Signe(s)
Signer's Name Signeas Name
Signe(s) Other Than Named Abov€:
i- Corporate Otficer - Title(s)
- lndividual
D Padner - - Limitsd D General
L-.1 Attomey in Facl
Ll Trustee
Ll Guardian or Conservator
Tl Oiher:
..- Corporate Otflcer - Title(s):
lndividual
tr Partner - n Limitsd D Gensral
Ll Attomey in Fact
O Trusteo
D Guardian or Cons€rvator
fl Othor:
Signer ls Flepresenting: _Signer ls Flepresenting; _
Top ol thumb here
BIGHTIHUMBPFINT
OF SIGNER RIGHT TTIUMAPFNI
oF srsNEa
0 20@ i6to.'.1 tkhry Ass(.iaton.9350 Do solo AE , P O Bor zaoa t Ch.tr\iro.rh, CA 9 ta1924e r ,w rialtytalNollry.o€ tbm t5007 8.6irh. Ca[ Tdr.Flo€ t{o$a76{8?t
CALIFORNIA ALL.PURPOSE ACKNOWLEDGME}IT
f ar(.1$r',4:.rx_-.-.-.....r--ar_-aax'a.aaria.,<!i
r"r x,r aJ a/g-r jt!=<,!-jcy?-rr-\ j</r1,1tr"! j<..ct!!v9\ j.,!&iit1,arr!<"r<-r,ca j&a j&r j& _ c<r\ciJjcrjcla;\jcr
CALIFORNIA ALL.PURPOSE AGKNOWLEDGMETIIT
Stale of Calitornia
County of
on /l-O)-'ao l2) belore me,.-------.----EE=Nezt
)
rt (,
personally appeared Q cr,rt *rO A o€M
r{Et-t-Y cAYw000
Commirtioo , lga9757
lottry Pullic - Clllooia
tor tufrh Colrl,
who proved to me on the basis ol satisfactory
evidence to be the personJ4 whose namel iyrrs
subscribed lo tho within instrument and acknowledged
to me that hebhdthe}r executed the same in
hidhellhair. authorized capacity(jesf and that by
hiyher/their signaturels) on tha instrument the
person(s), or the sntity upon behalt of which the
person(s) acted, executed the instrumenl.
I certily undor PENALTY OF PERJURY under the
laws ol th6 State ol California lhat the foregoing
paragraph is true and correct.
WITNESS my hand and ofticial seal.
Signature
Plac6 Nolary 566landor St trp Abov.
OPTIONAL
Though the info.mation below is nd requircd W lal,l,- it may prove vdluable to pe$ons Blying oa the docunen!
and codd prcvent laudulenl @moval and rcattadnBnt ol this lonn to another docunenL
Descrlptlon ol Attached Document
Title or Type of Document
Document Date:
Signe(s) Other Than Named Abov€
Capaclty(les) Claimed by Signe(s)
Sign€fs Name Signer's Name
Top ol lhu.nb h€lB
FIGHT THI,,MBPNIAII
OFSIGNER
Top ol thumb here
FIGKf THUMBPFIiIT
OF516NER
o t'm€ f&rtral Nohry aso.rsrion r 93s{) o€ soro A€ . P.o 6l]x 2.02 t ch!6wonh, ca 0 r 3 r 3-2(02. *w NrtionalNot..y ors tIon 15907 F@.dor: cs To{.Frc6 1.8@-876'6827
C
Number ol Pages:
I
$
l
t_
Corporate Otficer - Title(s)l
lndividual
il Pann€r - Ll Limited U General
aJ Attorney in Fact
tl Trustee
tr Guardian or Consgrvator
- Otheri
tr Corporate Otlicer - Tille(s):
l- I lndividual
tr Partner -t] Limiied il General
i l Attomsy in Fact
n Trustoe
n Guardlan or Conservator
. Other:
Signer ls Flspresenting: _Signer ls Representingl
Exhibit A
Properfy Description
LEGAI DESCRXPTION
cPt
Real propety tlr ure crv or I'4e!g4r+ county of R\,€rsrde, $ate of ftIlilrra, descflH as firlouls:
DIW$O{ 1:
l8cFts 1 AND 2 ANo LoTS 8. C Ar{D D OF PARCELt4Ap Sr58, A5 ptsR ti.tAp RECORDED tNB00K 31, eAGE s0 oF pARcEL r,lAps, neconos oFuvessroi inuNnr,'churotuu,c.
DIVISION 2:
llRqB: | 9l!or LTNE ADJucn4ENTr,lc). 0s016 REo0RDED oN luNE 23, 2006 As TN$TRuMENTr,lo, 2006.0+5265? OF RXVEnSDE corr{Ty Mmnos, otsirusED G EO'riorvs,
sEll,€ A PORTTON OF PARCEL 3 OF pARcEL MAp 8158, Ils s|towN IN BOOK 3l pAGe 50,rNo.lJsryE oF MAps Ar{D A poRnoN oF nre sourHtnsr qrhnrirri 6i!'ecnorr zaI-oy:N!!lt 6 sourt, RAI{GE 3 wesr, s.e.o,u,, ns omcRr&D iil DED riilonoeo
lr_Trypqi m, z00s ,qs rusrnuNe Nt nuDrasI mus;doil2se, 'ni$i6d 6i nrvmsroroouNry, cArrFoRNrA BflNG t4OR E pARTrqUnnLV Oescutr?rJ ell6rio'ws,
ryirylqflg 4r ftE sourHwEsT coR \,tER oF sArD pARcfL s/ SArD poll,rr ALso BEING Apor{r orr rHE eflrrERur{E or zErDrps Roqn, es sHffi 6il imb-r;iriiia Mnp eiiC;
IlltNg!.Iq5ry A.oNG ntE WESTERLy UNE gF $ArD p RCEL 3 AND rHE cENlrRuNE 0FIIID T.ErDrBS rlsAD r,toRTlt 00c2?06, EA5T n orsrnrice riF qid.+-irririfr ueIIORITIVYEST CONNM OF SA1D PARCIL 3,
.ITI^EIICE.ALONGTHE NORTHzuY UNE.Of -SAID PARCEL 3, SOUTH 89026!0'EAsr/ ADIsrANcr oF rrel,lr FEEIro ruE NoRrneesr mnnr,iloi-sriiri-pl-icii l;
llglqE-gqRTlt 4r0Ns Tl{E EAs{EAtr.uNE Or pARcEL 2 oF sArD PARGL r4Ap Br5& N0R]H02o03'2o' s^Srr A Dr5'ANCE OF 3t 1.14 FEEI;
.IIIENCE COI.ITIN{JING NORIIH ALOHG THE EASfERI-Y ttNE OF SND PARCEL 2 NO&TH
13??l!51-!.!Ir { prsmr,rcE oF 133,33_FE€rro rrr.rf nornrilFCriniEn or sero prncrr-
?r !g_? qolirrALso BEING rHE sqJrnEAsi- comrn ril. iiirffi i i! iiriwN ou seroFAF.Cf;I. UAT 815S;
THENCE NORITI ATONG ]T{f; FtrSIERLY LINE 6F 5AID PARCET 1 NORTH 1?25'3r WESr, AD,IsI]ANCE OT 253,52 FEET,
,]XTflCE COIJnNUII'|G NORTH ALOIIG THE EASI'MLY UNE Or SAID PPA,CEL 1 IIORTH3l.EOOS'EAST, A DIgI,{Nff OF 226,?7 FEEITO THE NORTHEAST CONIiEI iIiiIUri'PARCEL1;
THEI'ICE SOUIH 89om'0l} EASr, A DFTA cE Of 37,20 FEEI
THENCE soultl 09'5p!30, IVESI, A DI$IA CE oF Zto.tg FEEI
T|.I]ENCE souftt 12"43{5" EASTi A DlSrA CEOF 154,03 FEET;
lHeNcE sowH 00024'17, wEsT, A DTSTANCE OF 9s0.00 FEE-r;
THEIiCE IiOUTH O5'18i20' EAST,A OISTANCE OF IA,2O FEETI
IHEI{CE NORTH 80.20'13" WEST,A 0|STANOE 0F 1?62.16 FEETTO THE potNT oFBEBINNIH6,
ApN: .38+150-008"2 (otd) 384.1!0-000.8 (nev4 and 384.15041G! (nev) tr$ 984_100.002-1(old) $S4"160.00S"7 (ns!y)
R. Duquatto, P 7566
Erp,r?.st.
l,lo.
LEGAL DESCRIPTION
cP2
Re0r rrrop.rty rn the oty of l're|.[he, county of RrvorcHs, shu oF hrtrarflfu, descdbed a6 f'fiohEr
'IENTATJVT FIRCEL MAP NO. 35BJ!. EEINO A DTVISION OF IHE FOLI.OWIIG:
lHE 'I'(EIiI 1I OF THE FOLLOWING DE9CRIEED PARCEL OF LT.ND;
T}IAT PORTION OF THE EAST 12 OF T##ffi ##Htffi #ffififfi,Hifi ffi $dfffit3,I,"ffi r'
R. Duqustte, P 7506
cllDtltENcXNc AT THE SOU]HEAST COritER OF Tr{E NO(rHEA$T ya Of SrUp 56fi1qN A,rFrENcE N.BTH 8?c sa,oo" wrsr. rr.o1.9^i.ygso',jffiiTiiriio"fi#r.,nqsr v+, eUST-ANCT OF 3O.OO FEET To THE.mUb A,rNT oF BEGINN vG j THFN.E
^,es" se, 00, wEsi. AmNc innsirLnil i#,;^U+1.^i#Hj.'; ,rfrENcE_coNTrNurNG N0RrH
corueiorsa,o'rff ,i,'ffi 'rd{}ffi,"&P$$jTff.!6i,l'IilHE WESTL*IE oF sArD EAsr rr2. s83,re FEnrro nc pdruriiiiniinslcnou or nreI,IESTERLY PRoLOHAIOT Or iHl rsuRvEy o, F*.E rN u**.,. .o.. #H5lht *L95,f5:ll331:y9y* * nrcdio or
rreruce nocu ggi ti;ob;'d;#ildr;8ffi 1l,H#ili F{af"fffii5ffi Ht[JfEff Hi,,ll[li}$,Tl"trJffilfi',tfg5iii,ry;*^*slir.ilil,r'ii;T:i'ffi FEEr wEsr oF rHE
rnue por^r.i oi ticr.,il{ii;i:"", ./ .rr r HClvcE sfiJ.l}t 00o ce, 00. snsr, oez,oz FEFr rbfu.
APN: 384-180-026{
t
J
No.7B6eEa.€1 t'4,tr
lt, De l)t,teflt Aere
Exhibit B
Development Agreement Meterial Telms
enle t (,,Aeree 1,,)
COMMERCE POINTE PROJECT
Material Terms for pending Devolopment Agreement
aud Associoted Tract Map
A. Introrluctlon
The h{er.ifee city councir unarinrousry approve, the comrnerce pointe rr.oiecr o*Zeiders Road in 2009. separal{y, ca}na,s, trr" c,,iilry ri niversidc and the ciries of Mcnifeeand M*deta have been rvorti-ne,1]osff to i,rpf"r*oi'i*pror.ruor, to ,rc existi,g I-21S/ScottRoad intelchange in an effort to imrrove regional oirculati^o, and meet futurc traffic needs. Thelorurgrce Pointe Project is requrred to,nG ma.;or impror.*.otr to Zeiders Roacl a,d ciccottisueet (between Zeiders Road ad Bailey rurt oiureraiaj'tnui *.tt rr. inrportant to thc resionalrraffic circularion during and after the constru.,ion li'trr. i-zri/s";*"R;'ff;".,ili;However, the economic recession has delaye<l A. Co*i.r"" boi,re noj".i .na;;;#ily,the required rransporrarion im11o,-v11e1s. l',.r"rorr, ciiy ,tJi *a-,tl, A;i#.r""r;T#,.Project ownefs have been discussiug the terros of a possibre ieveropnrent agrcenrent that wouldallow for the complerion of the Coirmerc. n"ini" frri..i or". ti"i"-r, ir""r;;rff;;;, ;;,guarantee the ezuly derivery of the critical regional rroi"po.rui o, rmprovements. other pubricbenefits provided by the Cornmerce_ poinie pLojecr'tJ;;hffi;-ilil ;._ilH:,agreement are outlined on thc attached ExlLibit A.
t. Proiect Annrovals and Motllficatipus, In 2009, the City approved plot plans forcournrerce pointe I a:rd II on ad*@r."I, r"r I t"i-r of g27,777 square feet (the"Project"). The Agreernent provicles that rhe p;je; il", O" complerecl over timc inaccordarrce wi*r all the pr:ojeci App'ovars and other iaws u,rit ,"grratinn, i' place as of thedate of the Agreeman,.. The Agreement ara .r"Ufi;* a process for the Citv toadministrarivety approve minor moJificarions ,.,h; i;;j;;;t,"uiJJ.lili*g ,,I ,i,1il,"1foorpri,ts) to accoffmocrate changing rnarket conaitioir ,ira'"igmee.ng requiremcnts as thcProject progresses. The foilo;in; refinements ^"a-'"roaii""i""r';-'ilr;rr."j#;;oonsidered to be nrinor modifications that sha,_b" upp.*"J uaiinistratively unless appeeredto the Planning co,:niission in accorciance witl s"&Ln z.iol50 of the Meni Fee cin, n^.r..(i) chauges in landscaping; (ii) variations in the Iooation or;i;";ir,.iliJil'i;",::;increase.the nraxirnun.r-aggregate floor a:.ea of the frolect, nrct,ding ;;;;dil;il';;aggregatio, of building footprints a.s.rong as no single bu &n! exceeds zio,ooo rq,,*" r."q(iii) variations in the location of ut itieJor ofier ;ftas;;;i; connections or faoitities normate,rially aflbcting design ooncepts; 1iv) variations in tt,.'op.o space or co.sorvation arcaconfiguratio.s that do not reduce the aggregate ri^ ofof"n'.pu"e or cr:nservation area; (v)
1
flrinor adiustmellts to the tentafivefiap, final map or the legal desoriptions to accom.rnodatcapproved mottificarions ro ,tl,.,ll_"j:" app.'r.ir;'irij-iiap ptrasing ancl oondoninirunplans; aad (vii) sim ar nrodificarions or other minoi .'utg", tr,ut are ministerial in natureand are not subject to further revierv und.r tt" cairo.niaG"uiioom.ntal Quality Act.
2. Conservation Easemcnt. The City worrlcl agree to aocept the dedication ofa 1.97_acreportion of rhe propeflv that is required ty o",r uia iri.rJillorro" agencies to be protecre<rby a conservarion easement for habitat;*ugr*r, p-"iiiinut *r, property owners haveestablished a seoured method for frudingGl';ng-;;;;rlrr*.e costs of the easementarea. The City and flre project or+ners intend to'ril; il;;lighting mainten;;;.;;;il.,r,", n t r.
-
r.,. r;;ffi;r#2ry#i:l; tilffi"Til$
provide funding tbr the Ciry's expenditues ,"ir*J ," ,.iriJ,io, the "onse,iaii;;;'.' ir,'ci,v .-a ,r,r'io".i."lr##T.il0#x.:,*x*."tJ'"T#:iunderstending for the approuriate reiource rg"rd;-;;"fr;;g the intention ro implementthe Conservadon Easenrint in u.cord"r". *iilil;-p"ar:#ffi*
3' Term' Trre Deveroome,t Agreement rvourd bo effective for ten years. The re:m of a.lrl'#;;l*lr""rs will be .*rc,'a.o ',to*l;;i; ffi,lf ,he term or the Deveropment
+ fti-g.els Road, The project owners will conshuct phase I of the Zeiders Roadrmprovements to comnrence upo3..F: earlier of (i) f S0 dry, after the p_*fii, frr_.a f;I:tt_fYdiic of the Project, or (ii) Jury r.. zori.' i,irl. i'"rZeiders Roacr wiu includeHiilil"l,:HTJhi[..,,,'#.,#;.j";.,:1xi[*r,tx*m,*r::,,,,Jt:f
asphalt paving and ctub and gutter. on th. .*i rir".ri.laers Road, but no siclewalks orlanciscaping i,corporated in Piiase r. rrr" o*o..r-r-gr=.?i,uy complete Zeiders Road i,accordance with approved street, sewer, wuter and rlnaraupa pron, prior to issuance of thefir'st occupaucv permit for the pr:oject. 'Td pil;ffitd;,{"Road imp.ov"rrenr prans sha,be altached ro the final executed .{g1Egm..i *-B_f,iilir-_ il __
5' _gcgg!E+ry.!. The projecr ow,ers wl, also construct phase r of rhe cicsotti streerrmprovernents flom Zeiders Road to Bailey park nrrr.r.a a .irirr*. -",:;;.rh.
standards for a 2'rane roa. (witrrour.curut J'1*.irral*iti or r*ar"apiog) lo commenceupou the earlier of (i) 180 davs urt"r trr. p.,i,irir'i;'r,J';;,;*, gracling of trre proiect. or(ii) July l, 2015. Tbe orvrr.r, ogree to comprete rut .onstr,.iro, of ciccotti srreet Drio; roissuance of trre fir'st occubancy permit for tue nroieci rnc phase l ciccotti streeii*provement prans sha, u. utmlrliJ'to *r;"", r#ffi Agreemenr as Exhibits __ and
6.Cretl hast'I yeme
to Zeiders Road and Cicootti Street, by the pr'oj ect o\vl.tcls, as rvell as the required olosure ofBailey Park Drivc, is eritical to the Scott Road Interchange project and the regionaltransportation systern. 'l he Scott Itoa 'l-215 interchange is included irr the WesternRiyerside Council of Govenrnrents ('\\rR COG") Transpot1rati.on Unifornr Mitigation Feeverside Scott Road Ro
Ttre timely construction of improvements
2
(,'TUMF')pl'ografi) and the County of Ri ad & Bridge Beuelft Districr
("RPBP') program. The cilv of Menifee administers corleotion of fees and approvar of feecrcdits/reimbursoment for developrnent projccts wittrin city boundaries snhip^r r^adminishative guidelines for each respectiri p*grr*. U;4, Ur; D;;;iil; d;r,,HJ;the City will use its best efforts to obtain upplouuf t" p"r-it the use of TUN;"..H;:proposed improvemenrs to Zeiders Road and
-ciccotti sdei.uct tu*t tr,. pr.j."i .;.rr:cosls,for deJive.q ojthe improvemonts is credirecl .gui; t-h; froi".t o*o"r, ibHuJ;T.pay the appricable TUMF for the project. If the coi oi tlr.-i,nprou"*euts to Zeiders Roadand ciccotti Street exieeds the project o*n.rr, ruAtr-obligation, fte p.qr"r.-**"'*",
requesr, to wRcoc, a reimbursement for such costs ti'o*g-h the T't'rrztr- pi"-"#-i" irrlextent permissible, the city ,r,ill.provide construction in lieu RBBD fee'cr;it;io;;i;improvements. In no case shall dLrplicate r.. creairs il."isruea fix the same cJsts ;.ilfi;oligible improvenrents.
7. Timins for Annrovals and poustruction, Attaehed as Exhibit B is a proposedschedule showing rhe lming ot ttilgrGil*t, p.i""i -*p and conservation easemenr
3:iiil$:ritlilould allow constructiori or the traasporta-t-ion l,,ffi;;;;; il:ilT;
8' olrcrugu+fnd cwtq*arr xerq*s. The Agrecment will includs other usual an.custornary provisions, incrudi'g a description or *,J pruir" u"nef$ fiom ,h. ir"r*, (il;artaohed Exhibit A) and other standard tirms uAar.*riojt.unrf." *.1 ""ig.r.il,;;;;obligations and protectiors, annual review "f tf,. alr.f,i,rrn.,a.rni,u nna.,roi..*o;iG;;ih;;;;;i""i*j.=r,ll,il['JJ;'Jl,?ff::*t inde*nificatio,,
'l'he property owners' have appriecl for two tentativc maps for trrc project, whicrr areconsistent with the existing approved plot plans *a ,uts-i'tiutty ,irnil* t",dr;';;tir;tontative.trect map that was previously fired for the proje"r rrre tentative maos wirr r,rp'ocessed corrcurrently with the propoied Agreer:rent *e"irtr"d;-f*';;;rrd#i;ri;'d:city planning Commission prioitoi'e Cidcoon;ii,;;;;;td";.,il;f ;;;;;##. "i;
approved, L1e tentative maps rvilr become part of the rroject Approvars ,fr:..i t, trr.Agteement.
3
Q. T enkrtite Mans
Dxhibit A
public Benelits of_the proiect,
A' conhibuti'g ro an increased quarity of rife for local residents by provirting jobs inclose proximity to the homg impovqc the jobs.io-trouslrg d*r; f;;Bilffi;o]-rlg, and reducing cornmutei. traf,-c to S* Oi.g.,' OrLg. *a t; &Lf,;Counties;
B' Providing fiscar bene,ts to the city's generar frurd in terms of increased prcperty taxrevenues;
C. Creating substantial employmcnt opportunities including both shofi-tcrmconstruction employmont and 1ong+orm iermanent employment within City;
D' Iroviding flrnding for hansportation improvements at the following intersections tohelp alleviate existing failing levels ofseivice:
(1) Soott & Murieta Road;
(2) Zeiders Road/Haun Road & Scott Road;
(11 !2t 5 sourhbound ramps & Scon Road;
(1) I_-215 norrhbound ramps & Scott Road;(5) Zeiders Road & Keller Road;
(6) Antelope Road & Scott Road; and,(7) Haun Road & Holland Road.
E, Constructing timely and neede. backbone in_frastruoture to the surrounding area,including the followir:g public fuuprovements:
(l) Zeiders Road between Scott Road and Keller Road;(2) ciccotti sheet between Zeiders Road and Bailey part Boulevarcr;(3) Dailey Park Boulevard near Ciccotti Street;(4) Undergrounding of utilities along Zeiders iload from the soutl commerce pointeproperty line to the Scott Road intersection; and,(5) Expandcd storm d$in ancl sewer faci.Hties to meet projected regional neods.
F, Deliveri'lg a high qualiry industrial development that lvil enhance the srmound.ins
::l]::1,ll1 and provide opporrunities to mcet the demands .ii;;;i;J.il;i'#:buslnesses;
G' Providing recreationar amenities fo' the employees and tho community at latge; ancr,
H. Conserving and enhancing valuable biologically sensitive areas and open space.
4
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Dxhibit D
Phase I Zeiders Road Improvement plans
Exhibit F
Property Depiction of Conservation Easement Area
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Exhibit G
Form of Conservation Easement
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
This CONSERVATION EAS
is made this _ day of
California corporation ("Gra ntor''), in favor
EyINT DEED ("Conservation Easement,,)
2013 by Zeiders Road Business park, lnc., a
of the City of Menifee ("Grantee,,),
RECITALS
A. Grantor is the sole owner in fee simple of real property containing 36.07 acres,located in the city of Menifee, -g9rty of Riverside, stite bt carifornia, oesig;ieoAssessor's Parcel Numbers 384-150-008, 384-1s0-009 and 384-.1s0-otd rine'Property"). The Property is legally described on Exhibit,,A" attached rrereio anoincorporated by this reference. Grantor intends to grant a conservation easement overa 1.97-acre portion of the Property (the "Easement Area"), The Easement Area islegally described on Exhibit "8" and depicted on Exhibit,,c,, attached hereto andincorporated by this reference.
B..The Easement Area provides, among other things, compensatory mitigation forunavoidable impacts associated with the commerce pointe lndustriat rarr iroject uyGrantor pursuant to requirements of the following state and rederat apfrovats(collectively, "Agency Approvats"): (1) United Stales Army Corps of eniineerr,('AcoE) section 404 Permit No. spL-2012-00052-JpL and any amendmentsihereto
(the "Section 404 Permit").
c. This conservation Easement is designed to satisfy and is granted in satisfactionof the Agency Approval.
Zeiders Road Business Park, lnc.
c/o Peter G, Aylward
Strategic Property Advisers, lnc.
3250 Vista Diego Road
Jamul, CA 91935-2014
CONSERVATION EASEMENT DEED
D. Consistent with the terms and conditions of this Conservation Easement, the
Easement Area is and will remain in a Natural Condition as defined herein and is
intended to be preserved in its natural, scenic, open condition to maintain its ecological,
historical, visual and educational values (collectively, "Conservation Values',). The
conservation Values are of importance to the people of the county of Riverside and the
people of the State of California and United States.
E. Grantee is authorized to hold conservation easements pursuant to Civil Code
section 815.3. specifically, Grantee is a govemmental entity identified in civit code
Section 815.3(b) and otherwise authoized to acquire and hold title to real propedy.
F. The ACOE is the Federal agency charged with regulatory authority over
discharges of dredged and fill material in waters of the United states pursuant to
section 404 of the clean water Act, and is a third party beneficiary of this conservation
Easement.
VEN TERMS ND ND RESTRIC
ln consideration of the above recitals and the mutual covenants, terms,
conditions, and restrictions contained herein, and pursuant to the laws of the United
States and State of California, including Civil Code Section 815, el seq., Grantor hereby
voluntarily grants and conveys to Grantee and its successors or assigns, as
appropriate, a Conservation Easement in perpetuity over the Easement Area of the
nature and character and to the extent herelnafter set forth. This Conservation
Easement shall run with the land and be binding on Grantois heirs, successors,
administrators, assigns, lessees, and other occupiers or users of the Easement Area or
any portion of it.
1. Purpose
(a) The purpose of this Conservation Easement is to ensure the
Easernent Area will be managed and preserved in a Natural Condition, as defined
herein, in perpetuity and to prevent any use of lhe Easement Area that will impair or
interfere with the Conservation Values of the Easement Area (the "Purpose"). Grantor
intends that this Conservation Easement will confine the use of the Easement Area to
such activities that are consistent with this Purpose, including without limitation, those
involving the preservation, restoration, and enhancement of native species and their
habitats.
')
(b) The term "Natural Condition,,, as referenced in the preceding
paragraph and other portions of this conservation Easement, shall mean the condition
of the Easernent Area, as it exists at the time this conservation Easement is executed,
as well as future enhancements or changes to the Easement Area that occur direcfly as
a result of the following activities:
(2)ln-perpetuity maintenance (''Long-Term Maintenance")AS
described in S n 16 herein; or
(3)Activities described in Sections 4-6 herein
(1) Compensatory mitigation measures, including
implementation, maintenance, and monitoring activities (collectively, ,,Compensatory
Mitigation") required by the Agency Approval and as described in the Final Habitat
Mitigation and Monitoring Plan dated 22 October 2013 ("Mitigation plan,,), a copy of
which is attached as Exhibit "D;"
(c) To the best of the Grantor's knowledge, Grantor represents and
warrants that there are no structures or improvements existing on the Easemenl Area at
the time this grant is executed. Grantor further represents and warrants that there are
no other previously granted easements existing on the Easement Area that interfere or
conflict with the Purpose of this conservation Easement as evidenced by the Tifle
Report attached at Exhibit "E." The present Natural Condition is evidenced in part by
the depiction of the Easement Area attached on Exhibit,,F,', showing all relevant and
plottable property lines, easements, dedications, improvements, boundaries and major,
distinct natural features such as waters of the United states. Grantor has deliveied
further evidence of the present Natural condition to Grantee and ACoE consisting of(1) a color aerial photograph of the Easement Area at an appropriate scale taken as
close in time as possible to the date this Conservation Easement is executed; (2) an
overlay of the Easement Area boundaries on such aerial photograph; and (3) on-site
color photographs showing all man-made improvements or structures (if any) and the
major, distinct natural features of the Easement Area.
(d) lf a controversy arises with respect to the present Natural Condition
of the Easement Area, Grantor, Grantee, or ACOE or any designees or agents of
Grantor, Grantee, and ACOE shall not be foreclosed from utilizing any and all other
relevant documents, surveys, photographs or other evidence or information to assist in
the resolution of the controversy.
(e) The term "Biorogicar Monitor" shail mean an independent third-party consultant with knowledge of aquatic resources in the Riverside corntv ui""'unoexpertise in the field of biology or related field
* 2. ^ Grante-e's Rights. To accomplish the purpose ofEasement, Grantor hereby grants and conveys the following rightsrights, without obligation, are.also granted to ACOE or their disigbeneficiaries of this Conservation Easement:
this Conservation
to Grantee. These
nees as third party
(a) To preserve and protect the Gonservation Varues of the EasementArea; and
(b) To enter upon the Easement Area and property at reasonabletimes in order to monitor compliance with and to othenrvise enforce t'he terms ollhisConservation Easement; and
(c) To prevent any activity on or use of the Easement Area that isinconsistent -with the Purpose of this Conservation Easement and to ,"quii""in"restoration of such areas or features of the Easement Area that may oe ouriug"o'ovany act, failure to act, or any use thar is inconsistent with the errpo.u=6iir,.,l.Conservation Easement; and
(d) A[ minerar, air, and water rights necessary to protect and to sustainthe biological resources of the Easement Area, provided tnat iny ex"rcis"-or sucnrights by Grantee shall not result in conflict with such conservation Vilues; and
(u) All present and.future development rights allocated, implied,reserved or inherent in the Easement Area are hereby terminaiLd and extinguish"i rnosuch present and future development rights may nof be used on or kansf6rred ro anyportion of the Property, nor any other property adlacent or otheruise; and
(f) The right to enforce by any means, including, without limitation,injunctive relief, the terms and conditions of ihis conservation Ease-ment.
. 3, Prohibited Uses. Any activity on or use of the Easement Areainconsistent with the Purpose of this conservation Easement and not reserved as aright of Grantor is prohibited without limiting the generality ot the roregoing,-ihefollowing uses by Grantor, Grantee, and their respective gu"rtr, ,b*ntr: -;.".ig;r,
employees, rep resentatives, successors, and third parties are expressly prohibitei on
4
the Easement Area except as otheruvise provided herein or unless specifically provided
for in the Agency Approval, the Mitigation Plan, and any easements and reservations ofrights recorded in the chain of title to the Easement Area at the time of this conveyance
(as set forth on Exhibits E and F hereto):
(a) Unseasonable or supplemental watering except for habitat
enhancement activities described in Section 6(b) or the Mitigation plan;
(b) Use of herbicides, pesticides, biocides, fertitizers, or other
agricultural chemicals or weed abatement activities, except weed abatement activities
necessary to control or remove invasive, exotic plant species as allowed in S ection (c)
Dumping soil, trash, ashes, refuse, waste, bio-solids, garbage or
(c) lncompatible fire protection activities except fire prevention activities
set forth in Section 6;
(d) Use of off-road vehicles and use of any other motorized vehicles
except on existing roadways;
(e) Grazing or other agricultural activity of any kind;
(f) Recreational activities including, but not limited to, horseback
riding, biking, hunting or fishing;
(S) Residential, commercial, retail, institutional, or industrial uses;
_ (h) Any legal or de facto division, subdivision or partitioning of the
Easement Area;
(i) Construction, reconstruction or placement of any building, road,wireless communication cell towers, or any other structure or improvement, exiept asprovided for in section 6, or any billboard or sign except those signs specifically allowed
under Section 5(c):
(i)
any other material;
(k)
or animal species;
Planting, gardening, or introduction or dispersal of non-native plant
O Filling, dumping, excavating, draining, dredging, mining, drilling,
removing or exploring for or extraction of minerals, loam, gravel, soil, rock, sand or
other material on or below the surface of the Easement Area;
(m) Altering the general topography of the Easement Area or the
design hydrology for the mitigation channel in the Easement Area, including but not
limited to building of roads, trails, and flood control work; except as permitted by the
5
Agency Approval, or as necessary to implement the Mitigation Plan, or any right
reserved in Section 6. or Section 16
(n) Removing, destroying, or cutting of trees, shrubs or other
vegetation, except for (1) emergency fire breaks as required by fire safety officials as
set forth in Section 6(e), (2) prevention or treatment of disease, (3) control of invasive
species which threaten the integrity of the habitat, (4) completing the Mitigation plan, or
(5) activities described in Section 4, Section 6, or Secti on 16
(o) Manipulating, impounding or altering any natural watercourse, body
of water or water circulation on the Easement Area, and activities or uses detrlmental to
water quality, including but not limited to degradation or pollution of any surface or sub-
surface waters;
(p) Creating, enhancing, and maintaining fuel modification zones
(defined as a strip of mowed land or the planting of vegetation possessing low
combustibility for purposes of fire suppression) or other activities that could constitute
fuel modiflcation zones;
(q) Without the prior written consent of Grantee, which Grantee may
withhold, transferring, encumbering, selling, Ieasing, or otherwise separating the mineral
rights or water rights for the Easement Area; changing the place or purpose of use of
the water rights; abandoning or allowing the abandonment of, by action or inaction, any
water or water rights, ditch or ditch rights, spring rights, reservoir or storage rights,
wells, ground water rights, or other rights in and to the use of water historically used on
or otherwise appurtenant to the Easement Area; and
(r) Creation of any encumbrance superior to this Conservation
Easement, other than those encumbrances set forth in Exhibit,,E', hereto, or the
recording of any involuntary lien (which is not released within thirty calendar days), or
the granting of any lease, license or similar possessory interest in the Easement Area
which witl affect the Conservation Values of the Easenrent Area.
6
4. Grantor's Duties. To accomplish the Purpose of this Conservation
Easement as described in Section 1, Grantor shall undertake the following construclion,
maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until
issuance of final approval per the Agency Approval confirming that Grantor has
successfully completed construction, maintenance and monitoring o{ mitigated areas
pursuant to the Mitigation PIan ("Final Approval"). This duty is non-transferab le.
Grantor, its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlaMut entry and
trespass by persons whose activities may degrade or harm the Conservation Values of
the Easement Area. ln addition, Grantor shall undertake all necessary actions to perfect
Grantee's rights under Section 2 of this Conservation Easement;
- (b) cooperate with Grantee, its successors or assigns in the protectionof the Conservation Values;
* (c) Pursuant to SeQtion 1 6(d), below, repair and restore damage to theEasement . Area directry or indirecfly caused by Grantor, crrntor;. - gul.tr,representatives, employees..or agents, and third pirties within orantort Jontiot;provided, however, Grantor, its successors or assigns shall not engage in "nv ,apaii o..restoration work in the Easement Area without firit consulting wii'tr irre cirit"Jl, [.successor or assigns and ACOE; and
(d) Obtain any -applicable govemmental permits and approvals for anyactivity or use permitted by this conservation Easement, and any activity'or ui" "tlrrio"underlaken in accordance with all applicable federal, state, local "ni "o.inisiraiir"agency statutes, ordinances, rules, regulations, orders or requirements
_ 5. Grantee's Duties. To accomplish the purpose of this conservationEasement as described in Section 1 , Grantee shall:
. (a) Perform at reast quarterry compriance inspections of the EasementArea, prepare an annuar inspection report that documents'the quarterry in*pu.iionresults, and shall make reports available to ACOE upon request;
(b) Upon receipt of Final Approval, perform the Lonq_TermMaintenance of the Easement Area as described in Section 1'6; --"J ' -
(c) within 90 days of recordation of this conservation Easement, erectsigns and other notification features saying "Natural Area open space,; ; proiu.t"o
Natural Area," or similar descriptions. priorlo erection of sucn signage, orantee-sr,asubmit detailed plans showing the location and language of suc[ silns to ACoi to,review and approval. The erection and maintenance of iriformative sigiage sirail i;t uein direct or potential conflict with the preservation of the Naturai co;dition oi'tnuEasement Area.or the Purpose of this conservation Easement and shall be performedin compliance with all applicable statutes, regulations, and permitting .equirements;
(d) Pursuant to the requirements of Section 16(e), below, repair andrestore darnage to the Easement Area direcfly or indirecfly caused by cr"niu",Grantee's guests, rep resentatives, employees or agents, and third p"rti". *iii-'rinGrantee's control provided, however, Grantee, its siccessors or assigns shall notengage in any repair or restoration work on the Easement Area without ilrst consuttingwith Grantor and ACOET and
(e) Set aside, hold, invest and disburse adequate Special AssessmentDistrict funds (described in Sc!ig!_-l_O solely for the puiposes of preserving iheconservation Values of the Easement Area under this conservation Easeme"nt'inperpetuity,
7
(a) Access. Reasonable access through the Easement Area andProperty to adjacent land over existing roads, or to perform obligations or other
activities permitted by this Conservation Easement.
native plant communities, including the right to plant trees and shrubs of the same typeas currently existing on the Easement Area, so long as such activities do not harm ii.rehabitat types identified in the Agency Approval or Mitigation plan. For purposes ofpreventing erosion and reestablishing.native vegetation, the Grantor shall have the rightto revegetate areas that may be damaged by the permitted activities under ihis
PC!lir+9, naturally occurring events or by the acts of persons wrongfully damaging theNatural condition of the Easement Area. prior to any habitat enhjncement aitivities,
Grantor shall have a Biological Monitor submit detailed plans to ACoE for review andapproval. Habitat enhancement activities shall not be in direct or potential conflict withthe preservation of the Natural condition of the Easement Area oi the purpose of thisconservation Easement and shall be performed in compliance with ali applicable
statutes, regulations, and permitting requirements.
(b)Habitat Enhancement ctivities Creation and enhancement of
(c)Veoetati on. Debris. and Exotic Soecie s Removal . Removal or
rferen ith D tofAd P
nything set forth herein to the contrary, nothing in this Conservationnded nor shall be applied to in any way limit Grantor or anyofGrantor's successors and assigns from (1)constructing, placing, installing, and/orerecting any improvements upon the portions of the property not constituting theEasementArea andior (2) developing adjoining property for any purposes, except aslimited by any local, state or federal permit requirements for such development andprovided that for al of the above clauses (1) and (2) neither such activity nor any effect
resulting from such activity amounts to a use of the Easemen t Area, or has an impact
upon the Easem
(e)
ent Area, that is prohibited by Section 3 above
The right, in an emergency situation only, to
8
trimming of vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of parasitic vegetation (as it relates to the health of the hostplant) and removal of non-native or exotic plant or animal species. Vegetation, debris,and exotic plant species removal shall not be in direct or potential conflict with thepreservation of the Natural conditron of the Easement Area or the purpose of thisconservation Easement and shall be performed in compliance with all appiicable laws,regulations, and permitting requirements.
(d)
Notwithstanding a
Easement is inte
tn
Fire Protection
6. Reserved Riqhts. Grantor reserves to itself, and to its personal
representatives, heirs, successols, and assigns, all rights accruing from its ownership ofthe Easement Area, including the right to engage in or to permit or invite others to
engage in all uses of the Easement Area that are not expressly prohibited or limited by,and are consistent with, the Purpose of this conservation Easement, including thefollowing uses:
(a) Right to Enforce. Grantor, its successors and assigns, grant to
ACOE, the U.s. Department of Justice, and the state of california a discretioniry right
to enforce this conservatiorr Easement in a judicial or administrative action againit anyperson(s) or other entity(ies) violating or attempting to violate this conservation
Easement; provided, however, that no violation of this conservation Easement shall
result in a forfeiture or reversion of title. The AcoE, u,s. Department of Justice, and
the state of california shall have the same rights, remedies and limitations as Grantee
under this Section 7. The rights under this section are in addition to, and do not limit
rights conferred in section 2 above, the rights of enforcement against Grantor, Grantee
and their successors or assigns under the Agency Approval, or any rights of the various
documents created thereunder or referred to therein. The term "party" means Grantor
or Grantee, as the case may be. Grantor, Grantee, and any third party beneficiaries,
when implementing any remedies under this easement, shall provide timely written
notice to each other of any actions taken under this section, including, but not limited to
copies of all notices of violation and related correspondence.
Notice of Violation. ln the event that a Party or its employees,
or invitees is in violation of the terms of this Conservation Easement
s threatened, the non-violating Party and/or third party beneficiaries
ure of such violation. ln such a case, the non-violating party and/or
aries shall issue a written notice to the violating Party (hereinafter
n") informing the violating Pa(y of the actual or threatened violations
re of such violations, The Notice of Violation shall be sent to the
maintain firebreaks (defined as a strip of plowed or cleared land made to check the
spread of a fire), trim or remove brush otherwise perform preventative measures
required by the fire department to protect structures and other improvements from
encroaching fire. All other brush management activities shall be limited to areas
outside the Easement Area.
7. Enforcement.
(b)
agents, contractors
or that a violatlon i
may demand the c
third party benefici
"Notice of Violatio
and demanding cu
other Party and th
Easement.
ird party beneficlaries listed under Seetion 14 of this Conserva tion
(c)Time to Cure. The violati ng Party shall cure the noticed violation
within thirty (30) days of receipt of said written Notice of Violation. lf said cure
reasonably requires more than thirty (30) days, the violating Party shall, within the thirty
(30) day period, submit to the non-violating Party and/or third party beneficiaries, as the
case may be, for review and approval a plan and time schedule to diligently complete acure. The violating Party shall complete such cure in accordance with the appr.ovecl
plan. lf the violating Party disputes the notice of violation, it shall issr-re a written notice
of such dispute (hereinafter "Notice of Dispute") to the appropriate Party and/or third
party beneficiary within thirty (30) days of receipt of written Notice of Violation.
I
(d)Failure to Cure. lf the violati ng Party fails to cure the violation
within lhe time period(s) described in Section 7(c), above, or Section 7(e)(2), below, the
non-violating Party and/or third party beneficiaries may bring an action at law or in
equity in a court of competent jurisdiction to enforce compliance by the violating party
with the terms of this Conservation Easement. ln such action, the non-violating Party
and/or third party beneficiaries may:
(1) Recover any damages to which they may be entitled for
violation by the violating Party of the terms of this Conservation Easement or for any
injury to the Conservation Values of the Easement Area, The non-violating party shall
flrst apply any damages recovered to the cost of undertaking any corrective action on
the Easement Area. Prior to implementation of any remedial or restorative actions
pursuant to this paragraph, ACOE shall be consulted.
(2) Enjoin the violation by temporary or permanent injunction
without the necessity of proving either actual damages or the inadequacy of othenrvise
available legal remedies.
(3) Obtain other equitable relief, including, but not limited to, the
restoration of the Easement Area to the condition in which it existed prior to any such
violation or injury. This remedy is expressly available notwithstanding the ability to
claim damages as provided for in subdivision (1).
(e)Notice o ispute
(1) lf the violating Party provides the non-violating party and/or
third party beneficiaries with a Notice of Dispute, as provided herein, the non-violating
Party and/or third party beneficiaries shall meet and confer with the violating Party at a
rnutually agreeable place and time, not to exceed thirty (30) days from the date that the
non-violating Party and/or third party beneficiaries receive the Notice of Dispute. The
non-violating Party and/or third party beneficiaries shall consider all relevant information
concerning the disputed violation provided by the violating Party and shall determine
lvhether a violation has in fact occurred and, if so, whether the Notice of Violation and
demand for cure issued by tlre non-violating Party and/or third party beneficiaries is
appropriate in light of the violation.
(2) lf, after reviewing the violating Party's Notice of Dispute,
conferring with the violating Party, and considering all relevant information related to the
violation, the non-violating Party and/or third party beneficiaries determine that a
violation has occurred, the non-violating Party and/or third party beneficiaries shall give
the violating party notice of such determination in writing. Upon receipt of such
determination, the violating Pady shall have fifteen (15) days to cure the violation. lf
said cure reasonably requires more than fifteen (15) days, the violating Party shall,
within the fifteen (15) day period, submit to the non-violaling Party and/or third party
beneficiaries for review and approval a plan and time schedule to diligently complete a
l0
cu re,
plan,
The viorating Party shafi comprete such cure in accordance with the approved
(1) If any party receives a Notice of Vioration that is in materiarconflict with one or more prior written Notices of vioration that have ."t v"t o""r'.ri"oby the Party (hereinafter ''Active Notice(s) of Violation,,) such that the ctnnict maxes itimpossible for the Party to carry out the cure consisteni with all prior e.tir" rrr"ii."r'"rViolation the_party shall give written notice (hereinafter ,,Notice ot contii"rl' to lnenon-violating party and/or third party beneficiaries issuing the tater, conttciinj
-rri.i["r.1
of Violation, The party shail issue said Notice of cJnflict to t. ,p[iop"ri;i;';._violating Party and/or third party beneficiaries within fifteen lrsy oays oitrrJ r"."ipi"reach. such confricting Notice of VioJation A varid Notice of bonflici strarr oescrioJ tneconflict with specificity, including a description of how the conttici ma[es-;;;n;;""with allActive Notices of Violation impossible.
(0 nfl N of olation
(2)Upon issuing a valid Notice of Conflict to the appropriatenon-violating Party and/or third party beneficiaries, as described above the violatingParty shall not be required to carry out the cure descri bed in the conflicti ng Notice orNotices of Violation until such time as the non-violat tng Party responsible for saidconflicting Notice(s)of Violation issue(s) a revised Notice of Violation that is consistentwith prior Active Notices of Violation. Upon receipt of a revised, consistent Notice ofViolation, the violating Party shall carry out the cu re recomnrended in such notice withinthe tinre period(s)described in Section 7(c)above. Notwithstanding Section 71o\failure to cure within sard time period(s) shal I entitle the non-violating Party to theremedies described in Section 7(d) an Section 7(h)d
(3) The fajlure of the violating party to issue a valid Notice ofconflict within fifteen (1s) days of receipt of a confricing Notice ot viorrtion ir.rrir'i""rrrtin a waiver of the violating party,s abilityto claim a confliit.
(s) rmmediate Action. rn the event that circumstances requireimmediate action to prevent or mitigate significant damage to tre conseivation vr'-ri",of the Easement Area, the pa(y and/or third party beneficiary seet<ing "nio"Lru"tpursuant to section 7(b) above may immediateiy pursue iil avaira'bre ,u."ii",including injunctive relief, available pursuant to both this conservation eur"munl-rnostate and federal taw after giving the vlolating party at teast twenty f; (2;i h;;r.,written notice before pursuing. such remedies. -so rong as such t,,veniy-tour iz+i r.,,"rrcnotice is given, the non-violating party may immediat6ly pursue all available rur"iiu,without waiting for the expiration of the time periods piovided for cure or Notice otDispute as described in section-7(p)., The written notice pursuant to this paragraph maybe transmitted to the violating party by facsimile and shitt be copied to ir," oiher eartyand/or third party beneficiaries listed in section 14 of this conservation rasemeni. irrerights of the non-violating party and/or third party beneflciaries uno"r tnis priagraplr
ll
apply equally to actual or threatened violations of the terms of this Conservation
Easement, The violating Party agrees that the remedies at law for any violation of the
terms of this Conservation Easement are inadequate and that the non-violating Party
and third party beneficiaries shall be entitled to the injunctive relief described in this
section, both prohibitive and mandatory, in addition to such other relief to which they
may be entitled, including specific performance of the terms of thls Conservation
Easement, without the necessity of proving either actual damages or the inadequacy of
othenarise available legal remedies. The remedies described in this Section 7(o) shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in
equity, including but not limited to, the remedies set forth in Civil Code Section 815, et
seg., inclusive.
(h) Costs of Enforcement. Any costs incurred by a Party in enforcing
the tenns of this Conservation Easement against another Party, including, but not
lirnited to, costs of suit and attorneys'fees, and any costs of restoration necessitated by
a Party's violation or negligence under the terms of this Conservation Easement shall
be borne by the violating Party.
(i)Enforcement Discretion. Enforcement of the terms of this
Conservation Easement by a Party and/or third party beneficiary shall be at the
discretion of the Party and/or third party beneficiary, and any forbearance by such Party
and/or third party beneficiary to exercise its rights under this Conservation Easement in
the event of any breach of any term of the Conservation Easement by a Party or any
subsequent transferee shall not be deemed or construed to be a waiver by the non-
violating Party and third party beneficiary of such terms or of any subsequent breach of
the same or any other term of this Conservation Easement or of any of the rights of the
non-violating Party and third party beneficiary under this Conservatlon Easement. No
delay or omission by the non-violating Party and/or third party beneficiaries in the
exercise of any right or remedy upon any breach by the violating Party shall impair such
right or remedy or be construed as a waiver. Further, nothing in this Conservation
Easement creates a non-discretionary duty upon the non-violating Party and/or third
party beneficiaries to enforce its provisions, nor shall deviation from these terms and
procedures, or failure to enforce its provisions give rise to a private right of action
against the non-violating Party and/or third party beneficiaries by any thitd parties.
0)Acts Bevond G rantor's Control Nothing contained in this
Conservation Easement shall be construed to entitle Grantee, its successors or assigns
to bring any action against Grantor, its successors or assigns for any injury to or change
in the Easement Area resulting from:
(1) Any natural cause beyond Grantois control, including
without limitation, fire not caused by Grantor, flood, storm, and earth movement;
(2)
conditions to prevent,
Any
abate,
prudent action taken by Grantor under emergency
or mitigate significant inlury to the Easement Area
t2
resulting from such causes; provided that once the emergency has abated, Grantor, its
successors or assigns promptly take all reasonable and necessary actions required torestore the Easement Area to the condition it was ln immediately prior to the
emergency;
(3) Acts by Grantee, ACOE, or their employees, directors,
officers, agents, contractors, or representatives; or
(4) Acts of third parties (including any governmental agencies)
that are beyond Grantor's control.
Notwithstanding the foregoing, Grantor must obtain any applicable governmental
permits and approvals for any emergency activity or use permitted by this conservation
Easement, and undertake any activity or use in accordance with all applicable federal,
state, local and administrative agency statutes, ordinances, rules, regulations, orders or
requirements.
(k)Gra tro Nothing contained in this
conservation Easement shall be construed to entitle Grantor, its successors or assigns
to bring any action against Grantee, its successors or assigns for any injury to or
change in the Easement Area resulting from:
(1) Any natural cause beyond Grantee's control, including
without limitation, fire not caused by Grantee, flood, storm, and earth movement;
(2) Any prudent action taken by Grantee under emergency
conditions to prevent, abate, or mitigate significant injury to the Easement Area
resulting from such causes, provided that once the emergency has abated, Grantee, its
successors or assigns promptly take all reasonable and necessary actions requirecl to
restore the Easement Area to the condition it was in immediately prior to the
emergency;
(3) Acts by Grantor, ACOE or lheir employees, directors,
officers, agents, contractors, or representatives; or
(4) Acts of third parties (including any governmental agencies)
that are beyond Grantee's control.
13
Notwithstanding the foregoing, Grantee must obtain any applicable governmental
permits and approvals for any emergency activity or use permitted by this Conservation
Easement, and unde(ake any activity or use in accordance with all applicable federal,
state, local and administrative agency statutes, ordinances, rules, regulations, orders or
requirements.
(2) Grantor, and its successors and assigns shall hold harmless,
protect, defend and indemnify Grantee and its respective directors, officers, employees,
agents, contractors, and representatives and the heirs, personal representatives,
successors and assigns of each of them ("Grantee lndemnified Party" and collecfively"Grantee lndemnified Parties") from and against any and all Claims which are in
contravention of this Conservation Easement, arising from or in any way connected
with: injury to or the death of any person, or physical damage to any property, resulting
from any act, omission, condition, or other matter related to or occurring on or about the
Easement Area regardless of cause unless caused by the negligence or willful
misconduct of any of the Grantee lndemnified Parties.
10. Taxes, No Liens. Grantor and its successors and assigns sha pay
before delinquency all taxes, assessments, fees, and charges of whatever description
levied on or assessed against the Property by competent authority, including any taxes
14
8. Access. This Conservation Easement does not convey a general right of
access to the public or a general right of access to the Easement Area.
9. Costs and Liabilities,
(a) Grantor, its successors and assigns retain all responsibilities and shalr
bear all costs and liabilities of any kind related to the ownership, operation, upkeep, andmaintenance (except Long-Term Maintenance pursuant to section '16) of the property.
Grantor agrees Grantee and ACOE shall not have any duty or responsibility for the
operation, upkeep, or maintenance (except Long-Term Maintenance puriuant to
Section 16) of the Property, the monitoring of hazardous conditions thereon, or the
protection of Grantor, the public or any third parties from risks relating to conditions onthe Property. Grantor, its successor or assign remains solely responsible for obtaining
any applicable governmental permits and approvals for any activity or use permitted b!
this conservation Easement, and any activity or use shall be undertaken in accordance
with all applicable federal, state, local and administrative agency statutes, ordinances,
rules, regulations, orders and requiremenls.
(b) Hold Harmless.
(1) Grantor, its successors and assigns shall hold harmless, protect,
defend and indemnify ACOE and their respective directors, officers, employees, agents,
contractors, and representatives and the heirs, personal representatives, successorsand assigns of each of thern ("ACOE lndemnified party', and collectively, ,'ACOE
lndemnified Parties") from and against any and all liabilities, penalties, costs, losses,
damages, expenses (including, without limitation reasonable attorneys, fees and
experts' fees), causes of action, claims, demands, orders, liens or judgments (each a
"Claim" and, collectively, "Claims"), arising from or in any way connected with: iniury to
or the death of any person, or physical damage to any property, resulting from any ict,
omission, condition, or other matter related to or occurring on or about the Easement
Area, regardless of cause unless caused by the negligence or willful misconduct of any
of the ACOE lndemnified Parties.
imposed upon, or incurred as a result of, this conseruation Easement, and shall furnish
Granlee and ACOE with satisfactory evidence of payment, if assessed, upon request.
Grantor, Grantee, and their successors and assigns shall keep the Easement Area freefrom any liens. Should either Grantor's work or Grantee's work in or upon the
Easement Area result in a lien on the Easement Area Grantor or Grantee, as the case
may be, shall take all steps required to have said lien removed from the Easement
Area.
11.
exercise
compens
ondemn tion
of the power of emi
ation in accordance with applicable law
lf the Easement Area is taken, in whole or in part, by
nent domain, Grantor and Grantee shall be entifled to
12. Subseouent Tran sfe rs
(1) This Conservation Easement is transferable by Grantee, butGrantee may assign its rights and delegate obligations under this conservation
Easement only to an entity or organization authorized to acquire and hold conservation
easements pursuant to civil code section 815.3 and Government code section 65966(or any successor provision(s) then applicable) and only with the prior written approval
of Grantor and ACOE; and
(2) Grantee shall record the assignment in the County of
Riverside; and
(3) Unless otherurise agreed by Grantor, Grarrtee and ACOE,
along with such transfer of this Conservation Easement, Grantee shall transfer any
special assessment district funds collected for the management, maintenance and
monitoring of this conservation Easenrent, after deducting reasonable costs of transfer
and the cost of satisfying all outstanding contracts and obligations.
(b)Bv Grantor.
(1) The covenants, condilions, and restrictions contained in this
Conservation Easement are intended to and shall run with the land and bind all future
owners of any interest in the Easement Area. Grantor, its successor or assign agreesto (i) incorporate by reference to the title of and the recording information for this
Conservation Easement in any deed or other legal instrument by which each divests
itself of any interest in all or a portion of the Easement Area, including, without
limitation, a leasehold interest and (ii) give actual notice to any such transferee or
lessee of the existence of this Conservation Easement, Grantor, its successor and
assign agrees to give written notice to Grantee and ACOE of the intent to transfer any
15
(a) Bv Grantee.
interest at least sixty (60) days prior to the date of such transfer. The failure of Grantor,
its successor or assign to perform any act provided in this section 12 shall not impair
the validity of this Conservation Easement or limit its enforceability in any way, and
Grantor, its successors or assigns assume any liability relating to transfei(s) or
assignment(s) to bona fide purchasers without notice of the existence or terms of this
Conservation Easement.
(2) From and after the date of any transfer of all or any portion
of the Easement Area by Grantor and each transfer thereafter, (i) the transferee shallbe deemed to have assumed all of the obligations of Grantor as to the portion
transferred, as set forth in this conservation Easement, (ii) the transferee shall be
deemed to have accepted the restrictions contained herein as to the portion transferred,
(iii) the transferor, as applicable, shall have no further obligations hereunder except for
any obligations pursuant to section 20(q), and (iv) all references to Grantor in this
Conservation Easement shall thereafter be deemed to refet to such transferee.
13.
additional
ditional lnt
easements or other inte
Grantor, its successors and assigns shall not grant
rests in the surface or subsurface of the Easement
Area (other than a security interest that is subordinate to this conservation Easement)
without the prior written authorization of Grantee and ACoE. lt shall be reasonable for
Grantee and ACOE to withhold consent for the grant of additional easements or other
interest in the Easement Area that are in direct or potential conflict with the Agency
Approval and the preservation of the Purpose and the Natural Condition of the
Easement Area as defined in section 1 of this conservation Easernent or will impair or
otherwise interfere with the conservation values of the Easement Area. Grantor or its
successors and assigns shall record any additional easements or other interests in the
Easement Area approved by Grantee and ACOE, in the official records of Riverside
County, California and shall provide a copy of the recorded document to Grantee and
ACOE.
14. Notices. All notices, demands, requests, consents, approvals, or
communications from one party to another shall be personally delivered or sent by
facsimile to the persons set fodh below or shall be deemed given five (5) days afterdeposit in the United States mail, certified and postage prepaid, return recelpt
requested, and addressed as follows, or at such other address as any party may from
time to time specify to the other parties in writing:
To Grantor:Zeiders Road Business Park, lnc.
c/o Peter G. Aylward
Strategic Property Advisers, lnc.
3250 Vista Diego Road
Jarnul, CA 91935-20'14
City of Menifee
29714 Haun Road
Menifee, CA 92586
l6
To Grantee:
_ 15. Amendment. Grantor and Grantee may amend this conservationEasement only by mutual written agreement and with the written consent of ACoE. Anysuch amendment shall be consistent with the purpose of this conservation Easementand shall not affect its perpetual duration. Grantor shall record any amendments to thisconservation Easement approved by the Grantee and ACOE in lhe official records ofRiverside county, callfornia and shall provide a copy of the recorded document to theGrantee and ACOE.
FAX: 951-679-3843
With a copy to'.
16. Lono-Term Mainte nan ce.
Restoration Resoon ibilities . Grantor, Grantee, their successorsleach individually be obligated to repair, remediate, or restore theamaged by any activities prohibited by Section herein for which it is
(a) Grantee's Resoons.ibiliti.es for Maintenance and Manaqement.Grantee, its successors and assigns shall be responsible for 'rn;tpetuG;G;ing,
long-term maintenance and management of the Easement Area. 'such lon{-iermmaintenance and management shall consist of the following activities: (1) i'nnuatremoval of trash or man-made debris and (2) annual maintenance of signage and othernotification features installed pursuant to Section S(c).
(b)
and assigns shal
Easement Area d
responsible.
(c) Annual Reoortinq. Grantee, its successors and assigns shaprepare an annual monitoring and maintenance report documenting activitiesperformed under section '16(a) above, and shall make such report avaiEble to theGrantor and ACOE upon request.
_ (d) Grantor Restoration. When activities are performed pursuant tosection 16(b) for which Grantor is responsible, Grantee, its successors and assigns,shall retain, at Grantor's expense, a qualified Biological Monitor to prupur6 ,Restoration Plan and to overseeimonitor such restoration activities. Grantee shall haveits Biological Monitor submit a draft Restoration plan to Grantor and ACoE for reviewand for the ACoE written approval prior to its inrplementation. Upon completion ofrestoration as specified in the approved Restoration plan, Grantee shali have aBiological Monitor prepare a detailed monitoring report, and Grantee shall make thereport available to Grantor and ACoE within thirty (30) days of completion of restoration
t7
District Counsel
U.S. Army Corps of Engineers
Los Angeles District
915 Wilshire Boulevard, Room 1S35
Los Angeles, CA 90017-340'l
FAd: 213-452-42'17
activities. Grantee, its successors or assigns and Biological Monitor shall sign the
monitoring report, and the report shall document the Biological Monitor,s name and
afflliation, dates Biological Monitor was present on-site, activities observed and theirlocation, Biological Monitois observations regarding the adequacy of restoration
performance by the Grantee, its successors or assigns, or its contractor in accordance
with the approved Restoration Plan, corrections recommended and implemented.
Grantor shall be responsible for compensating and/or reimbursing Biological Monitor
and Grantee for all reasonable and ordinary expenses incurred by them in discharging
their respective responsibilities under this subsection within thirty (30) days of invoice.
17. Annexation into Soecial Assessment District. Grantor shall petition to
have the Easement Area included as a new zone to be annexed into Landscape andLighting Maintenance District ("l&Ltr/lD") No, 89-1-Consolidated in the County of
Riverside, california, and shall approve the levy of assessments thereunder such that
upon Final Approval, funds from the collection of assessments on the property are
available for the perpetual management, maintenance, and rnonitoring of the Easement
(e)
Section '16(b) for
Grantee estoration . When activities are performed pursuant to
which Grantee is responsible, Grantee shall retain, at Grantee's
expense, a qualified Biological Monitor to prepare a Restoration plan and to
oversee/monitor such restoration activitles. Grantee shall have a Biological Monitor
submit a draft Restoration Plan to ACoE for review and written approval prior to itsimplementation. Upon completion of restoration as specified in the approved
Restoration Plan, Grantee shall have a Biological Monitor prepare a detailed monitoring
report, and Grantee shall make the report available to ACOE within thirty (30) days of
completion of restoration activities. Grantee, its successors or assigns and Biological
N,4onitor shall sign the monitoring report, and the report shall document the Biological
tt4orritols name and affiliation, dates Biological Monitor was present on-site, activities
observed and their location, Biological Monitofs observations regarding the adequacy
of restoration performance by the Grantee, its successors or assigns, or its contractor inaccordance with the approved Restoration Plan, corrections recommended andimplemented.
Area as required under this Conservation Easement
18. Recordation. Grantee shall promptly record this instrument in the official
records of Riverside County, California and immediately notify the Grantor and ACOE
through the mailing of a conformed copy of the recorded easement"
19. Estoppel Certificate. Upon request, Grantee shall within fifteen (15) days
execute and deliver to Grantor, its successors and assigns any document, including anestoppel certificate, which certifies compliance with any obligation of Grantor, ils
successors and assigns contained in this Conservation Easement and otherwise
evidences the status of this Conservation Easement as may be requested by Grantor,
its successors and assigns.
t8
(a) Controllinq Law. The laws of the United States and the State ofcalifornia, disregarding the conflicts o-f law principles of such state, shall govern theinterpretation and performance of this Conservation Easement.
20. General Provisions
(b)ral Co ction. Any general rule of construction to thecontrary notwithstanding, this Conseruation Easement shall be liberally construed infavor of and to effect the Purpose of this Conservation Easement and the policy andpurpose set forth in California Civil Code Section 915 et seq. lf any provision in thisinstrument is found to be ambiguous, an interpretation consistent with the Purpose oftlris Conservation Easement that would render the provision valid shall be favored over
any interpretation that lvould re nder it invalid
(c) Severabiritv. If a court of competent jurisdiction voids or invaridates
on its face any provision of this conservation Easement, iuch action shall not affect theremainder of this conservation Easement. lf a court of competent jurisdiction voids orinvalidates the application of any provision of this conservation Eaiement to a personor circumstance, such action shall not affect the application of the provision to otherpersons or circumstances.
(d) Entire Aqreement. This instrument together with the attachedexhibits and any documents referred to herein sets fo(h the entire agreement of theparties with respect to the conservation Easement and superJedes all prior
discussions, negotiations, understandings, or agreements relating io the conservation
Easement. No alteration or variation of this instrument shall be valid or binding unless
contained in an amendment in accordance with Section 1b,
(e) No Forfeiture. Nothing contained herein wirr resurt in a forfeiture orreversion of Grantor's title in any respect.
(0 Su Assi The covenants, terms, conditions. andrestrictions of this Conservation Easement shall be binding upon, and inure to thebenefit of the parti es hereto and their respective personal representatives heirs,successors, and assigns and shall
Easement Area, The covenants he
as a third party beneficiary.
constitute a servitude running in perpetuity with thereunder benefitin o Grantee shall also benefit ACOE
(s)Terminati on of Riohts and Oblioations . Provided the transfer wasconsistent with the terms of this Conservation Easement, a party,s rights andobligations under this conservation Easement shall terminate upon iransfer of theparty's interest in the conservation Easement or Easement Area (respectively), except
that liabilily for acts or omissions occurring prior to transfer shalt survive transfei.
(h) Captions. The captions in this lnstrument have been inserted
t9
solely for convenience of reference and are not a part of this instrument and shall haveno effect upon its construction or interpretation,
(i) Counterparts. The parties may execute this instrument in two ormore counterpafts, which shall, in the aggregate, be signed by all parties; eachcounterpart shall be deemed an original instrument as against iny pirty who hassigned it. ln the event of any disparity between the counterparis produced, therecorded counterpart shall be controlling.
(i) Exhibits. All Exhibits referred to in this conservation Easement areattached and incorporated herein by reference.
(k)azardous ateria iabili
(1) Grantor represents it is unaware of any rerease or threatened rereaseof Hazardous Materials (defined. below) .or underground storage tanks existing,generated, treated, stored, used, released, disposed of, deposited oi abandoned in, on,under, or from the Property, or transported to or from or affecting the property.
(2) Without limiting the obligations of Grantor herein, Grantor hereb vreleases and agrees to indemnify, protect, defend and hold harmiess the Granteelndemnifled Parties and the ACOE lndemnified parties (defined in Section g(cX1) and9(c)(2)) agai nst any and all Claims (defined in ection arising from orconnected with any Hazardous Materials present,alleged to be present, or otherwiseassociated with the Property at any time,except that this release and indemnificationshall be inapplicable to crantee lndemnified parties and to ACoE lndemnified parties
with respecl to any Hazardous Materials placed, disposed or released by GranteelndemnifiedParties or ACOE lndemnified Parties. This release and indemnification
includes,without limitation, Claims for (i) injury to or death of any person or physical
damage to any property;and (ii) the Grantor's violation or alleged violation of , or otherlalure to cornply with,any Environmental Laws (defined below).
1
(3) Desplte any contrary provision of this Conservation Easement, theparties do not intend this conservation Easement to be, and this conservation
Easement shall not be, construed such that it creates rn or gives Grantee and ACOEany of the following:
(i) The obligations or liabilities of an ,,owner', or,,operator,,,as
those terms are defined and used in Environmental Laws (defined below), including,without limitation, the comprehensive Environmental Response, compensation andLiability Act of 1980, as amended (42 U,S.C. Section g601 et seq.; hereinafter,"cERCLA,"); or
(ii) The obligations or liabilities of a person described in 42U.S.C. Section 9607(a)(3) or (4); or
ofa
20
(iii) The obligations responsible person under any
(iv) The right to invesilgate and remediate any HazardousMaterials associated with the Property unless said investigatjon or remediation is
related to the investigation or remediation of the Easement Area; or
(v) Any control over Grantor's ability to investigate, remove,
remediate or otherwise clean up any Hazardous Materials associaled with ftre property
unless said investigation or remediation by Grantor is related to the Easement Area.
The term "Hazardous Materials" includes, without limitation, (a) material that is
flammable, explosive or radioactive; (b) petroleum products, including by-products and
fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic
substances, or related materials defined in OERCLA; Resource conservation and
Recovery Act (42 u.s.c. 6901 et seq.); the Hazardous Materials Transportation Act (49
U.s.c. section 5101 et seq.); the Hazardous waste control Law (california Health &Safety Code Section 25100 et seq.); the Hazardous Substance Account Act (California
Health & safety code section 25300 et seq.), and in the regutations adopted andpublications promulgated pursuant to them, or any other applicable federal, state or
local laws, ordinances, rules, regulations or orders now in effect or enacted after the
date of this Conservation Easement.
The term "Environmental Laws" includes, without limitation, any federal, state,local or administrative agency statute, ordinance, rule, regulation, ordei or requirement
relating to pollution, protection of human health or safety, the environment orHazardous Materials. Grantor and Grantee represents, warrants and covenants toeach other and to AcoE that Grantor and Granlee's activities upon and use of the
Easement Area will comply with all Environmental Laws.
applicable Environmental Laws; or
(t)Extinoui shment lf circumstances arise in the future that render the
Purpose of this conservation Easement impossible to accomplish, this conservation
Easement can only be terminated or extinguished, in whole or in part, by judicial
proceedings in a court of competent jurisdiction.
(m) Warranty. Grantor represents and warrants that there are no
outstanding mortgages, liens, deeds of trust, encumbrances or other interests in the
Easement Area (including, without limitation, mineral interests) which have not been
expressly subordinated to this conservation Easement, and that the Easement Area is
not subject to any other conservation easement.
(n) No Merqer. Grantor and Grantee agree that should Grantee, or
any successor in interest to Grantee, come to own all or a portion of the fee interest
subject to this Conservation Easement, there shall be no express or implied merger by
operation of law or otherwise. lf any party should claim such a merger, the parties
agree that any and all terms and conditions of this Conservation Easement shal be
deemed covenants and restrictions upon the Easement Area, which, shall run with the
2t
[REMAINDER LEFT INTENTIONALLY BLANK]
22
land according to carifornia andior other appricabre raw and otherwise exist inperpetuity.
/N MrlvEss WHERE1F Grantor and Grantee have executed this conservationEasement the day and year filst above written and have agreed to be bound nv ft,. -
terms and provisions hereof.
GRANTOR:
Zeiders Road Business Park, lnc.
By:
Ronald A. Schoen
Chief Financial Officer and Secretary
By: Strategic Property Advisers, lnc.,
a California corporation
Its Authorized Adviser and Agent
By:
Peter G. Aylward, President
CERT IFICATE O
By
_ .This is to certify that the conservation Easement by Zeiders Road BusinessPerk lnc. a California corporation, dated _ , 2013, to tfre CitV ofMenifee, is accepted by the undersigned officeis on bEhElfiiGrantee.
F ACCEPT NCE
GRANTEE:
Name:
Title:
Date:
Attest:
By:
Name:
Title:
Date:
23
State of California
County of 81ygg[9le]
On
Date
personally appeared
before me,
)
Here lnsert Name and Title of the Officer
Name(s) of Signe(s)
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies),
and that by hisiheritheir signature(s) on the
instrument the person(s), or the entity upon behalfof which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seat.
Signature
Place Notary Seal Above Signature of Notary Public
State of California
County of Rive ide)
On
Date
personally appeared
before me,
)
Here lnsert N ame and Title of the Officer
Name(s) of Signe(s)
who proved to me on lhe basis of satisfactory
evidence to .be the person(s) whose name(s)is/are subscribed to the within instrument andacknowledged to me that he/she/they executedthe same in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on' the
in-strument the person(s), or the entity upon behalfof which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under thelaws of the State of California that the foregoing
paragraph is hue and correct.
WITNESS my hand and official seal.
signature
Place Notary Seal Above Signature of Notary Public
25
State of California
County of Riversidel
On
Date
personally appeared
before me,
)
Here lnsert N arne and Title of the Officer
Name(s) of Signe(s)
Signature
Place Notary Seal Above Signature of Notary Public
26
who proved to me on the basis of satisfactory
evidence to.be the person(s) whose name(slis/are subscribed to the within instrument aniacknowledged to me that he/she/they executedthe same in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on' the
instrument the person(s), or the entity upon behalfof which the person(s) acted, executed theinstrument.
I certify under PENALTY OF PERJURY under thelaws of the State of California that the foregoing
paragraph is true and correct.
WTTNESS my hand and official seal.
Exhibit A
Legal Description of Property
ISee Attached]
27
28
Exhibit B
Legal Description of Easement Area
[See Attached]
Exhibit C
Depiction of Easement Area
[See Attached]
29
Exhibit D
Mitigation Plan
lSee Attachedl
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Exhibit E
Title Report
[See Attached]
3 '1.
Exhibits F.1 and F,2
Current Natural Condition of the Easement Area
ISee Attached]
32
Exhibit H
Form of Assignment and Assumption Agreement
RECORDING I{EQUESTED BY
AND WHEN RECORDED RETURN TO:
ASSIGNMENT AND ASSUNIPTION OI' DEVELOPMENT AGR-EEMENT
This Assignment and Assumption of Development Agreement (this"Assignment'') is executed by a _--- (,,Owner,,), in favorof("Assignee")as of the _ day of _'-, 20_, withret'erence to the follo wlng facts:
A. Or.vner and the City of Menifee, California, a municipal corporation organizedand existing under the laws ofthe State of California, have entered t11to that certain DevelopmentAgreement Rcgarding the Commerce Pointe Project, dated as of 2013, recordedas Document No,tn Off-rcial Records, County of Riverside, Califbmiathe"Development Agreement;,, and
B owner now desires to assign and transfer to Assignee, and Assignee desires toaccept from owner all of owner''s.rights and obligations in, rurdir and to rh; t;;;i"p"*;; '"
Agreeme,rt with respect to (but onry with.respect Io) the real property aescrioea on n!iliilit aattached hereto (the Transferred Property,').
THEREFORE. Owner and Assignee agree as follows:
I . Assisnmglrt._Owne r hereby assigns and transfers to Assigrtee all ofowner's rights in, u*der and to the Development Agr."ir.nt ,rd at or o*n.r;rittigrr:tion,arising u.der the Deveroprnent Agreeme't with resfect to (but onty witrr respect to) iheTransttrred Property frour and after the date hereofl
2 Accentancs.and Assumntion. Assignee hereby accepts from Owner allof owner's rights i., under and.to the Development Ag.""ni"nt and ag,ees to nrrrn.," ott oi --
owner's rbligations a'ising u,rder the Development Agreeme,t rvith r-espect to (tuioniv witrrrespect to) the Transt-errcd Pl.operty frorl and after thctate l.Lereof.
3. Further Assu-ra{rces. Each party hereto hereby agrees to execute anyadditional documents, and take any frulher,action, n*""rrury to effecior"eviden.. 1r. urrig-*rr"n,and assumption set lorth in Sections 1 al!L2 above.
. ..1. Noticcs:. For purpose.s of the Development Agreement, any notice toAssigree shall be given to the fo owing mailing address:
. . . . .. . l. Counternqrts. This Assignment may be executed in counterpans, each ofwhich shall be deemed an original, and both of wJrich togethei shalr constiture one;;il.;;;.instrument.
Miscellaneous. This Assignment shall be binding on and inure to thebenefit of the parties and their respective successi^ ana uriignr. The piragraph n."a]rg, "r,t i,Assignment are for convenient reierence only ana snat *i? usea in interfreiintihil-- -' -
Assignment.
. .7 - Cariforui! Law.- This Assignnent shan be governed by and interpreted inaccordance with the laws of the State of Califomial
8. Costs of Disnute Resolution. In the event ofany action or nroceertinobrought by any party against any otrr"r partGiirG tr,i. eg,=...ri, *-,1 p.ir"irirJo*[r'rriilbe entitled to rec.ver frorn the nor-prevailing parties all .oit" una.*p.nr.*, i..i"iilg "n"**.r,and experts' fees and expenses, in such action and proceeding in sqch amount as t6e court mavadj udge reaso.able. The prevailing parties shalr be determinia ty,ir" ""*'L'"*i "r*;"''assessment of u'hich pa(y's major arguments made or positions taken in ttre proceectingJcoutafairly be said to have prevailed over the other parties' rnajor argurnents or positions o.riro.ior--disputed issues,
IN wITNEss wHERxoF, owner and Assignee have executed this Assignment as of thedate and year Iirst above written.
OWNER:
ASSIGNIJT]:
ISlGNATIJITES TO BE NOTARIZEDI
Real property in the City of Menifee, County of Riverside, State of California, described as follows:
PARCEL 1, AS SHOWN ON PARCEL MAP NO. 36597 RECORDED NOVEMBER 15,2018, IN THE
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 246, PAGES 6 THROUGH 8 OF
PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
APN: 384-'180-051
PARCEL 2, AS SHOWN ON PARCEL MAP NO. 36597 RECORDED NOVEMBER 15, 2018, IN THE
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 246, PAGES 6 THROUGH 8 OF
PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
APN: 384-180-052
PARCEL A:
BEING A PORTION OF PARCEL 2 OF PARCEL MAP 8'I58, IN THE CITY OF MENIFEE, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 31, PAGE 50
OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND A
PORTION OF PARCEL "A" OF NOTICE OF LOT LINE ADJUSTMENT NO. O5O16, RECORDED
JUNE 23, 2006, AS DOCUMENT NO. 2006.0452652, OFFICIAL RECORDS OF SAID COUNTY,
LYING WITHIN SECTION 22, TOWNSHIP 6 SOUTH, RANGE 3 WEST, S.B.M., SAID PORTIONS
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL "A', SAID CORNER BEING A
POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF WIDTH), AS SAID ROAD
IS SHOWN ON SAID NOTICE OF LOT LINE ADJUSTMENT NO. 05016 AND SAID PARCEL MAP;
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL "A'AND SAID CENTERLINE OF
ZEIDERS ROAD, NORTH 00'22'06'EAST, A DISTANCE OF 660,06 FEET;
THENCE SOUTH 89"37'54' EAST, A DISTANCE OF 853.00 FEET;
THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL'A", NORTH 89'28'13" WEST, A
DISTANCE OF 853.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 12.95 ACRES MORE OR LESS.
RESERVING A RECIPROCAL EASEMENT FOR THE BENEFIT OF PARCEL "B'AND PARCEL "C'
AS SHOWN HEREON.
15
EXHIBIT B
(Legal Description of Property)
THENCE SOUTH 00'22'06" WEST, A DISTANCE OF 662.47 FEET TO THE SOUTHERLY LINE OF
SAID PARCEL "A":
PARCEL B:
BEING A PORTION OF PARCEL 1 AND PARCEL 2 OF PARCEL MAP 8158, IN THE CITY OF
MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN
BOOK 31, PAGE 50 OF PARCEL MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, AND A PORTION OF PARCEL "A'OF NOTICE OF LOT LINE ADJUSTMENT NO. 05016,
RECORDED JUNE 23, 2006, AS DOCUMENT NO. 200&0452652, OFFICIAL RECORDS OF SAID
COUNTY, LYING WITHIN SECTION 22, TOWNSHIP 6 SOUTH, RANGE 3 WEST, S.B.M,, SAID
PORTIONS BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID PARCEL'A', SAID CORNER BEING A
POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF WDTH), AS SAID ROAD
IS SHOWN ON SAID NOTICE OF LOT LINE ADJUSTMENT NO. 05016 AND SAID PARCEL MAP:
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 'A'AND SAID CENTERLINE
OF ZEIDERS ROAD, NORTH 00'22'06" EAST, A DISTANCE OF 660.06 FEET TO THE
POINT OF BEGINNING.
THENCE SOUTH 89'37'54" EAST, A DISTANCE OF 853.00 FEET;
THENCE SOUTH 89'37'54'EAST, A DISTANCE OF 49-51 FEET;
THENCE NORTH 74'41'01' EAST, A DISTANCE OF 67.00 FEET;
THENCE SOUTH 89'37'54" EAST, A DISTANCE OF 284.25 FEET TO THE EASTERLY LINE OF
SAID PARCEL ''A'';
THENCE ALONG SAID EASTERLY LINE THE FOLLOWING THREE (3) COURSES
1) NORTH 00'24',17" EAST, A DISTANCE OF 281.53 FEET;
2) NORTH '12'43',45" WEST, A DISTANCE OF 154.03 FEET;
3)NORTH 09'59'30'EAST, A DISTANCE OF 210.15 FEET TO THE NORTHERLY
LINE OF SAID PARCEL 1;
THENCE ALONG SAID NORTHERLY LINE, NORTH 89'26'00" WEST, A DISTANCE OF
1251.68 FEET TO THE NORTHWEST CORNER OF SAID PARCEL 1, SAID CORNER BEING
A POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF WIDTH);
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 1 AND SAID CENTERLINE, SOUTH
00'22'06" WEST, A DISTANCE OF 661.19 FEET TO THE POINT OF BEGINNING.
16
CONTAINING ,I8.66 ACRES MORE OR LESS.
RESERVING A RECIPROCAL EASEMENT FOR THE BENEFIT OF PARCEL'A'AND PARCEL ''C'
AS SHOWN HEREON.
PARCEL C:
COMMENCING AT THE SOUTHWEST CORNER OF SAID PARCEL "A", SAID CORNER
BEING A POINT ON THE CENTERLINE OF ZEIDERS ROAD (30 FEET IN HALF WIDTH),
AS SAID ROAD IS SHOWN ON SAID NOTICE OF LOT LINE ADJUSTMENT NO. 05016
AND SAID PARCEL MAP;
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 'A'AND SAID CENTERLINE
OF ZEIDERS ROAD, NORTH 00'22'06'EAST, A DISTANCE OF 660.06 FEET;
THENCE SOUTH 89'37'54' EAST, A DISTANCE OF 853.00 FEET TO THE POINT OF
BEGINNING;
THENCE SOUTH 89'37'54" EAST, A DISTANCE OF 49.51 FEET;
THENCE NORTH 74'41'01' EAST, A DISTANCE OF 67.00 FEET;
THENCE SOUTH 89'37'54" EAST, A DISTANCE OF 284,25 FEET TO THE EASTERLY LINE OF
SAID PARCEL "A"i
THENCE ALONG SAID EASTERLY LINE OF THE FOLLOWING TWO (2) COURSES:
1) SOUTH 00'24',17',WEST, A DISTANCE OF 668.47 FEET;
zt SOUTH 05'18'20" EAST, A DISTANCE OF 1 3.29 FEET TO THE SOUTHEAST
CORNER OF SAID PARCEL "A'':
THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL'A", NORTH 89"28'13'WEST, A
DISTANCE OF 399.15 FEET;
THENCE NORTH 00'22'06' EAST, A DISTANCE OF 662.47 FEET TO THE POINT OF BEGINNING.
17
BEING A PORTION OF PARCEL 2 OF PARCEL MAP 8158, IN THE CITY OF MENIFEE,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN
BOOK 31, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, AND A PORTION OF PARCEL 'A" OF NOTICE OF LOT LINE
ADJUSTMENT NO. O5O16, RECORDED JUNE 23,2006, AS DOCUMENT NO.2006-
0452652, OFFICIAL RECORDS OF SAID COUNTY, LYING WITHIN SECTION 22,
TOWNSHIP 6 SOUTH, RANGE 3 WEST, S.B,M., SAID PORTIONS BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
CONTAINING 6.,I9 ACRES MORE OR LESS.
RESERVING A RECIPROCAL EASEIVIENT FOR THE BENEFIT OF PARCEL "A'AND PARCEL 'B'
AS SHOWN HEREON.
APN(s): 384-150-009, 384-150-010, 384-150-01 1
18
EXHIBIT C
(Depiction of Property)
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M€nll6€ Counly ol Rkgrald€, CA kh€rne 12
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229,034 S.F.,
EXHIBIT D
(l-P Regulations)
Mcnifee. CA Codc of ordira.Ecs
ARTICLE X
I.P rctlE
(INOUSTRIAL PARK)
The folbwing rcguhtiqE sh6ll app9 to all l-P ZorEs
sDc'TroN r0.r. usf,s PfR rrED.
r. Thr folhrirg l! t ..rl Fmirod Ewil.d in Irdurtril P6rl Pbl Pbn hos bcrn lpro\d Frsu.rt !o 0E Fovniru of Sactixr
1E.30 ofthl ddiirncc.
(l) The foflowing hdlrsril.rd rl.ndrctu!'rg uscs:
r) Foo4 Lumbcr, Woo4 .rd Plpcr Fod.ab:
l. C!.h lnd brlry FldlEb.
Z $Etr rrd cdfcctbffy Fodrt!.
3. Nqubffi bcvc6g!!.
,1. lcr.
5. Mrnufrctu! of frfidlurr 8d fttuEs ilDbdiry cabirbts, p.nitir|!, .rd si'nLr iEms.
6, PrttrE and publihiry q n€rv3prpcn, p.riii:ab, books, fonrr, car&, ard simihr i!m3,
7. B dhg of bool6 md otlEr publi6tra.
b) T.dlt lnd t a0Er PrcdrEEl
L Wcariu aF.rEl lrd rccctiofy EodrtB-
2. Muuf.chu! ofhrrdba8t. t{g.ge, foor*Gu, .Itd oIlEr Frsq18l lc.0t. 8pods.
c) Chcmical snd Olass Prodrls:
l. Phalarccutbsl rt3c!rch lrd rEnufsctle.
2. Chiibb*he, F!ssh8, cuniqg &d dhct gh$w.re FodlEts.
d) Mcb[ t'hchtEry. ud Ebctsixl PrcdtErs:
t. Jcwcby ftanrtractrc ard tlFir.
2. Mrrufacturt, lssembly, t.sting srd npoir of compolcnlg, &vhrs, cquiprner{ lrd s}stllrE of in cbct*al cbcttonic, o(
ebctro-nEchEnical nrtlrr, s!rch 83, but r|ot frnitcd t!:
a. Tglevbirn fid rldb cquiFnlrn and tyttcn6.
b. PhdDgrapt6 strd sudb utts.
c. MatertrS irstruranB, aquiFneitr rnd syst!&s.
d. Radar, infiired rnd utravbbt equiFrEd .rd sysrems.
a. Coib, tubes, semicqductcs ltd similsr cornpo*ds.
I scicndfic 8nd mc.henbal iIBtnrlhcnts,
& DaE FoccssiB equitrnt lnd lystetrB.
h. Coflunui{tir\ mvigrtirrl cortaol, I.arumbsi,r and rcc.li aquiFrEnl, comrol trarEnirlim and Eccption cquiprEnt,
20
codrol cquinEni ud trstrllB, SrnnrEc cqut tEna ..td syst nis'
i Mtlstrl tnd Gco.dhg cquircl .
3, Otfrc rnd ccnprir4 ttuchir manuflclllc, cprir, rnd sahs.
4. Carrol &vtcr md gauges.
5- Eql4nr !.hs, rlnttl nld ttatgr.
6. ApphrEc n ruflcllrc, rnd ltpai,
7. MrnLfictrc of hhiB f!(tr!!, lrd !l.4p[C3.
c) TrtrsFdrth ud Rchtrd lnd.tr!i!:
I . vchtb tt(agF rrd irpcrdmcrn *lhh rn errbrd hiHiU;
2, TnLr, rccratixrrl whbls, lrd bct slqrS! wlhh an crrbccd buildiry
f) E tgiEr.tu ntd Scb.tifE ltluwErtsi
l. MlttttrlctulG urd llFt of orgircrqg scinffi, rld (Edtrl tEErlrElnltirr irtdiE bir ln trn cd !o:
a. Mcllrrt€ dcvbc!, wttchc!, cbck!, rtd Ehtod ileril3.
b. oFical Sooe.
c. Iircdi,ll rd & rl iulnftIG.
d. thtiEcrilE, ttrwy, ud drnht iltErrtrtt3,
c. Phoaognlhic cquiFrEli.
g) lndllsEilUtcs:
I . PuHic uib sutctstir|r lnd $algs hriEh8r.
2. warchqEig rnd dbrforin irhdig mhlwarchoscs.
3. Corrmlrlbriirls lrd mtrcwrw insllhthr3.
4. CoE srrgc frcihix.
J. TcbdsE cxcttnsGs rrd rwtchirg cqttlxn.
6. Pct offrcc!.
7. Fi! rnd polt4 strtimt.
E. wrEr ald 8ts cqnpony lcrvic &ciL!.
9. Plrccl drliEry 3€rvacr.
10. RecyclinS cobcti,l frcilili.s.
(2) Ttrc folowig rcnic. rrd cqntrErchl utc.:
a) B!n[s i.d ftllrEhl irrhdrB.
b) BlEFir rld dwbsaiu lcrvtca.
c) Lsborsnicr, mr& rDcdisll ltscurtl r tisting ccr[.rs'
O offrcc cquiFEnr tabs rnd rcrvtc.
c)offEci'Fofcasi'ultllcstnd$rvtc.irl,dighrrircsr.bw'ardtr!&lI![chirQr.ctt,{rhircruEltldcnsi|tcrit&
0 PrrtiB lr! ltd P.tkiu !tnrt!.t.
21
g) Reslrurants lrd .th.r cstilg establblflEris.
h) Barber and bca(y strops.
i) Day c&e centeri.
, Hcalth srd cxerEbc ccnters.
k) Mobibhorncs, Fovired oEy &t! trpt mouh rrd liccrBed prsurnt to rtste hrr, whEn raed for corstrrctbn oflrces snd
carEtskcCg quar&rs oo cdlstnEtim sa6 fa th. dDtin ofa valil building Frmit.
l) One-fsmily dwelius m tlr s.ttl. Frcrl i! 0E irdslrial a comnrcrcirl rsc povilcd swh dvclLgs arc ccr4H
exchsirc! by tlrc poprictor cr crtEtlker of fte we rnd tlrh immeditc frmitrcs.
m) Sigs, m-site adw*biqg-
n) Autoftobib s.rvtc rhtirE, rd iphding lrE caEl'rcr( sale of hc.r end wirE fa off-pEmic3 cq6untsin
o) Moteb.
p) Churchcs, tenpbs, q othp. strrttlrs llsed prinan! for rlligiltts worship'
Ametld€d Etrectivs:
11-*95 (Otd. u8.3753)
b.'lt.followingus€ssr!pcrmincdp.qvildacorditirulrscpcrmittusbeengnntcdpu8unnttoScctinlS.2SofthborditBrEc:
(l) Airporls.
(2) Hcliporb.
(l) Recycling prcessing facifiries.
c. Scx-oricnrcd hsirErscs, subjcrr to thc provirirN of Coutry dhErcc No. 743. Thc llscs lblcd in Subs.ctixE a. tnd b. do ml
inchdc rcx-qic.tcd brBiEsscs.
Amand Efreclivo:
Ur-ol-g,{. (O,tt. W35E4)
d Any usc thst is rDt sFciftrly btrd h Subcctbns & rrd b. n8y bc cdtsiC€rEd e Frm rcd or ccditiruly pcrmfrtcd tsc
Fovirbd that thc Plarnhg Dtlctc. fu& ttEt rtre Fopooed us. b suhstanth0y thc sa[E h charectq and htcnsil, as lhcc lbted in thc
designatcd suhectirB. Swh s 16€ b subjoct lo the prmh proces which govcrns thp cstegtry in whirh it fa[s.
Amenctad Ellective:
o6{6ap(od.a$txtz)
o&1689 (Od.3r',8.tut7)
1o.or89 (Od. A8.fi53)
0?01-94 (Otd. U8.3W)
fl-3e95 @td. 348.3753)
SECTION I0.2. PLAIttNED IITiDUSTRIAL DEVELOPMENTS
phrurcd industrial devebp.ncds sr€ pcrmitted provided I land divbion has bcen Eppro\td pursuant to thc provisior$ ofo.dinance
No. 460.
SECTIoN I0.3. INDTISTRIAL PARK PI,OT PI,AN.
22