2009/05/05 Fairfield Holland Road, LLC Traffic Signal Improvements (2)HIS PROJECT AGREEMENT (this "Agreement"), entered into this
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COUNTY OF RIVERSIDE
CITY OF MENIFEE
PROJECT AGREEMENT
TRAFFIC SIGNAL IMPROVEMENTS
FOR FEE CREDIT/REIMBURSEMENT
(Holland Road/AnteloPe Road)
RECITALS
Contract No o ?-o3 -o/,
erside Co Transportation
dd"
/n4 2009, by and between the county of fuverside (the "county"), the city of Menifee (the
Fairfield Holland Road LLC, a Delaware Limited Liability Company (the "Developer").
, city, and Developer are sometimes hereinafter relerred to individually as "Party" and
day of
l',lAY 6,20 .3.37
"Ciry')*d
The County
collectively as "Parties"
WHEREAS, Developer presently owns a property, which has received development approval
from the County of Riverside for Plot Plan 22338, collectively 230 multi-family dwelling units, as
shown on Exhibit A which is attached hereto and incorporated herein (the "Property"); and
WHEREAS, as a condition of development of the Ploperry, the Developer is required to
construct or cause to be constructed traffic signal improvements at the intersection of Holland Road
and Antelope Road (the "Project"), as shown and described in Exhibit B which is attached hereto and
incorporated herein, to partially mitigate identified impacts resulting from the residential development
of the Propertyi and
WHEREAS, the county/city, by the adoption of county of Riverside ordinance No. 659, as
amended and Section 17 of the Riverside County Code establishing development impact fees
(respectively, the "ordinance" and the "Developer Impact Fee") to be paid at the time a certificate of
o""upun"y is issued or upon final inspection, whichever occurs first: and
WHEREAS, Section 17 of the Ordinance provides general conditions under which a credit
against all or a portion ofthe Developer Impact Fee may earned; and
WHEREAS, a component of the Developer Impact Fee is a stated dollar amount to be utilized
for the construction oltraffic signal improvements within the incorporated area of the city; and
WHER-EAS,thePartieshavenegotiatedthattheDeveloperiseligibletoreceivea
reimbursement for the actual cost ofthe project, but not to exceed $86,940, as shown and described in
Exhibit C which is attached hereto and incorporated herein to Developer's construction ofthe Project;
and
WHEREAS, the Parties desire to enter into this Agreement to provide the conditions under
which the Developer is to construct or cause to be constructed the Project, to establish the fee credit to
be eamed by the Developer, and the manner in which the fee credit is to be applied against the
DevetopmentlmpactFeetobepaidbytheDeveloperuponthedevelopmentoftheProperty;
0{
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Fairfleld Holland Road, LLC
lmprcvement and Credit Agreement
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NOW, THEREFORE, for good and valuable consideration and the mutual promises contained
herein, it is agreed as follows:
Section l.Purpose of the ent:Following execution of this Agreement, the
Developer shall cause, consistent with Sections 3 through 12, below, the Project to be designed,
engineered and constructed as if it had been constructed under the direction and supervision or under
the authority of the County /City, and upon acceptance ofthe Project by the County/City, the Developer
will have eamed a fee credit in the dollar amount determined consistent with the provisions of this
Agreement that is to be applied against the Development Impact Fee to be paid for the development of
the Property.
Section 2.Definitions: Unless otherwise specihcally dehned in this Agreement, all terms
will have the meaning ascribed to them by the Ordinance
Section 3.Preparation and AI)I)roval of Plans and Specifications: To the extentthat it
has not already done so, th
to be prepared for the Proj
County of Riverside. The
his/her designee (the "County/City Engineer")
Section 4.Dufv of Develooer to Construct: TI.re Developer shall construct or cause to be
WHEREAS, this signal project is deemed eligible for fee credit or reimbursement based on the
criteria set out in fuverside county ordinance No. 659, Ordinance No. 748, and the policies and
practices of the County/City.
AGREEMENT
.e Developer shall cause plans and specifications (collectively, the "Plans")
ect. The Developer shall obtain the written approval ofthe Plans from the
Developer shall provide a copy ofthe Plans to the County/City Engineer, or
constructed the Project in accordance with the approved Plans approved by the County/City Engineer'
The Developer shall perform all of its obligations hereunder and shall conduct all operations with
respect to tie construction of the Project in a good, workmanlike and commercially reasonable
manner, witl the standard ofdiligence and care normally employed by duly qualified persons utilizing
commercially reasonable efforts in the performance of comparable work and in accordance with
generally acCepted practices appropriate to the activities undertaken. Notwithstanding the foregoing,
nothing set forth inthis Agreement shall be construed to require the Developer to perform any work
requiring a contractor's license, nor shall the Developer be deemed to be performing construction
services pursualt to this Agreement.
Section 5.Bid and Construction Requirements:
(a) In order to insure that the Project is constructed as if it had been constructed under the
direction and supervision, or under the authority of, the County/City, the Developer shall comply with
all ofthe requirements set forth in this Section.
(b) Not Applicable
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lmprovement and Credit Agreement
(c) The Developer shall require and the specifications, and contract documents shall
require all contractors, subcontractors, vendors, equipment operators and owner operators, in each
suih case to the extent such individuals or entities are engaged to perform work on the Project, to pay
at least general prevailing wage rates to all workers employed in the execution ofthe contract, to post
u "opy of th" gileral prevailing wage rates at the job-site in a conspicuous place available to all
empioyees and upplicants for employment, and to otherwise comply with applicable provisions of the
Caiifomia Laboi Code, the Califomia Govemment Code and the Califomia Public Contracts Code
relating to general prevailing wage rates as required by the specifications approved by the County/City
Engineer. The County/City has provided the Developer with copies oftables setting forth the general
prevailing wage rates, and the Developer hereby acknowledges receipt thereoi
(d) The Developer shall require each contractor, subcontractor, vendor, equipment operator
and owner operator, in each such case to the extent such individual or entity is engaged to perform
work on the Project, to provide proofofinsurance coverage satisfring the requirements of Section 10
(g) hereofthroughout the term ofthe construction ofthe Project. Rather than requiring its contractors
to provide such insurance, the Developer may elect to provide the same for the benefit of its
contractors.
(") Each principal contractor engaged to perform work on the Project shall be required to
fumish (i) labor and material payment bonds, and (ii) contract performance bonds, each in an amount
equal to I 00% of the contract price naming the Developer and the County and Cify as obligees and
issued by a Califomia admitted surety and a admitted surety insurer which complies with the
provisions of Section 995.660 ofthe Califomia Code ofCivil Procedure. All such bonds shall be in a
iorm as shown in Exhibit D. Rather than requiring its contractors to provide such bonds, the
Developer may elect to provide the same for the benefit of its contractors.
(0 The Developer shall comply, and shall cause each contractor, subcontractor, vendor,
equipment operator and owner operator, in each such case to the extent such individual or entity is
engaged to perform work on the Project, to comply, with such other requirements relating to the
construction of the Project as the County/City may impose by written notification delivered to the
Developer, to the extent legally required as a result ofchanges in applicable Federal, State, County or
City laws, rules or procedures.
(g) The Developer shall require, and the specifications, and contract documents shall
require, all contractorS, subcontractors, vendors, equipment operators and owner operators, in each
such case to the extent such individuals or entities are engaged to perform work on the Project, to
submit certified weekly payroll records to the Developer for inspection by the County/City Engineer,
and to fumish certified payroll records to the County/City Engineer promptly upon request.
(h) All change orders shall be reviewed and approved by the Engineer for the purpose of
ensuring that they comply with Flood Control District or County and City standards, which review and
approval shall not be unreasonably withlield.
(i) At the time the Developer submits a "Notice of Intent" to commence construction as set
forth in Section 8 below, the Developer shall deposit with the County/City the estimated cost of
providing construction inspection for the Project, in an amount as determined and approved by the
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lmprovement and CreditAgleement
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county/city in accordance with ordinance N os. 67 | and749, including any amendments thereto, of
the County/City, based upon the bonded value ofthe Project
The Developer shall provide proofto the CountyiCity Engineer, at such intervals and in such
form as the Countylcity Engineer may require that the foregoing requirements have been satisfied as
to the Project.
permit required from it to allow for the construction ofthe Project. The form and content
ii"".rr" und/o. p.rmit shall be in form mutually acceptable to the CountyiCity and the Devel
Section 6.NPDES Compliance. Not Applicable
Section 7. Licenses and Permits: CountylCity will grant the Developer any license ar.rd/or
of said
oper.
Scction 8.Notice of Intent to Commence Construction. Not less than twenly (20)
Business Days prior to the date on which it intends to
Developer is to provide written "Notice oflntent" to the
Project may not proceed until the County/City Engineer i
commence construction of the Project, the
County/City Engineer. Construction of the
ssues a "Notice to Proceed" to the Developer.
The "Notice of Intent" is to include the following documents:
(a) Copies of all Licenses and Regulatory Permits secured pursuant to Sections 6 and 7,
above.
(b) Copies of the bonds required by Section 5(e), above'
(") Construction Inspection Deposit required by Section 5(i), above'
(d) Duly executed irrevocable offer(s) of dedication to the public for flood control
purposes, including ingress and egress, for the rights of way deemed necessary by the
County/City for the construction, inspection, operation and maintenance of the Project.
(e) Preliminary reports of title dated not more than thirty (30) days prior to date of
submission for all property described in the irrevocable offer(s) of dedication.
(0 A complete list of atl contractors and subcontractors to be performing work on the
Project, including the corresponding license number and license classification of each. on
said list, the Developer shall also identiff its designated superintendent for construction ofthe
Project.
(g) A construction schedule which shall show the order and dates in which the Developer
and the Developer,s contractor proposes to carry on the various parts of work, including
estimated start and completion dates. As the construction progresses the Developer shall
update said construction schedule upon request.
(h) The final mylarplan and profile sheets forthe Project and assign their ownership to the
County/City, as appropriate, prior to the start of construction ofthe Project.
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lmprovement and Credit Agreement
have responsibility for providing inspection ofthe work ofconstruction ofthe Project
work of constrtction is accomplished in accordance with the Plans approved by
Engineer. County/City personnel shall have access to the site of the work of co
(D Certificates of insurance and endorsements as required by Section i 1, below
Section 9.Inspection l Completion of Construction: The CountylCity Engineer shall
to insure that the
the County/City
nstruction at all
reasonable times for the purpose of accomplishing such inspection'
No later than ten business days after receiving notification from the County/City that the
Project has been constructed in accordance with the Plans, the Developer shall forthwith file with the
County Recorder aNotice of Completion pursuant to the provisions ofSection 3093 ofthe Califomia
Civil Code. The Developer shall fumish to the County/City a duplicate copy of each such Notice of
Completion showing thereon the date of filing with said County Recorder'
Section 10.Maintenance of Facilities Warranties : The Developer shall maintain the
Project in good and safe conditron until its acceptance by the County/City. Prior to the acceptance of
the Project, the Developer shall be responsible for maintaini ng the Project in proper oPerating
condition, and shall perform such maintenance as the County/City Engineer reasonably determines to
be necessary. As ofthe date of acceptance, the performance bond provided by the Developer for the
Project pursuant to Section 5(e) hereof shall be reduced to an amount equal to 10%o ofthe original
amount thereof and shall serve as a wananty bond to guarantee that the Project will be free from
defocts due to fautty workmanship or materials for a period of 12 months from the date ofacceptance,
or the Developer may elect to provide a new warranty bond or cash in such an amount. As of the date
of acceptance of the Project, the Developer shall assign to the County/City all of the Developer's
rights in any warranties, guarantees, maintenance obligations or other evidence of contingent
obligations of third persons with respect to the Project.
Section 11, Insurance Requirements: Without limiting or diminishing the Developer's
obligation to indemnifu or hold the county and City harmless, the Developer shall procure and
maintain or cause to be maintained, at its sole cost and expense the following insurance coverages
during the term of this Agreement
(i) Contmercial General Liability; Commercial General Liability insurance
overage, inctuding but not limited to, premises liability, contractual liability, products and
compieted operations, explosion, collapses, use of cranes, and other heary equipment and
underground hazards, personal and advertising injury covering claims which may arise from or
out oi Developer's performance of its obligations hereunder. Policy shall name by
endorsement the County, City and its special districts, respective directors, officers, Board of
Supervisors, City Council, elected officials, employees, agents or representatives as Additional
Insureds. Policy's limit ofliability shall not be less than $5,000,000 per occurrence combined
single limit. If such insurance contains a general aggregate limit, it shall apply separately to
this Agreement or be no less than two (2) times the occurrence limit'
(il) Vehicle Liability. Developer shall maintain liability insurance lbr all owned,
non-owned or hired vehicles in an amount not less than $2,000,000 per occurrence combined
single limit. If such insurance contains a general aggregate limit, it shall apply separately to
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this Agreement or be no less than two (2) times the occurrence limil. Policy shall name by
endorsement the County, City, its special districts, their respective directors, officers, Board of
Supervisors, city council, elected officials, employees, agents or representatives as Additional
Insureds.
(iiD Worker's Compensation Insurance: Developer shall maintain Workers'
Compensation Insurance (Coverage A) as prescribed by the laws ofthe State of Califomia.
Policy shall include Employers' Liability (coverage B) inctuding occupation Disease with
limits not less than $1,000,000 per person per accident. Policy shall be endorsed to waive
subrogation in favor of the County and City, and if applicable, to provide a Borrowed
ServanVAltemate Employer Endorsement.
General Insurance Provisions - all lines:
(u) Aly insurance carrier providing insurance coverage hereunder shall be admitted
to the State of California and have an A.M. Best rating of not less than an A:VIII (A:8) unless
such requirements are waived, in writing, by the County/City Risk Manager.
(b) The Developer's insurance carrier(s) must declare its insurance deductibles or
self-insured retentions. If such deductibles or self-insured retentions exceed $500,000 per
occunence such deductibles and/or retentions shall have the prior written consent of the
County/City Risk Manager before the commencement of operations under this Agreement.
Upon notification ofdeductibles or self-insured retentions which are deemed unacceptable to
the County/City, at the election of the County'siCity's Risk Manager, the Developer's carriers
shall either: (i) reduce or eliminate such deductibles or self-insured retentions as respects this
Agreement with the County and City, or (ii) procure a bond which guarantees payment of
' losses and related investigations, claims administration, defense costs and expenses.
(c) The Developer shall cause their insurance carrier(s) to fumish the County/City
with (i) a properly executed original Certificate(s) oflnsurance and certified original copies of
Endorsements effecting coverage as required herein; or (ii) ifrequested to do so orally or in
writing by the County/City fusk Manager, provide original certified copies of policies
including all Endorsements and all attachments thereto, showing such insurance is in full force
and effect.
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(d) Further, said Certificate(s) and Endorsements to policies of insurance shall
contain the covenant of the insurance canier(s) that it shall provide no less than thirty (30)
days written notice be given to the County/City prior to any material modification or
cancellation of such insurance. in the event of a material modification or cancellation of
coverage, this Agreemenl shalI terminate forthwith, unless the County/City receives, prior to
such effective date, another properly executed original Certificate of Insurance and original
copies of Endorsements or certified original policies, including all endorsements and
attachments thereto evidencing coverages and the insurance required herein are in lull force
and effect. Individual(s) authorized by the insurance carrier to do so on its behalf shalI sign
the original endorsements for each policy and the Certificate of Insurance.
(e) The Developer shall not commence conslruction ofthe Improvements unlil
the County/city has been Jurnished original cerlificate(s) of Insurance and certified
original copies of Endorsements or policies of insurance including all endorsements and
any and all other attachments as required in this Seclion.
(0 It is understood and agreed by the Parties hereto and the Developer's insurance
company(s) that the certificate(s) of Insurance and policies shall so covenant and shall be
construed as primary insurance, and the county's and City's insurance and/or deductibles
and/or self-insured retentions or self-insured programs shall not be construed as contributory.
(g) The Developer and contractors shall pass down the insurance obligations
contained herein to all tiers of subcontractors working under this Agreement and will require
all such subcontractors to narne on their insurance policies by endorsement the County and
City, its special districts, their respective directors, officers, Board of Supervisors, City
council, elected officials employees, agents or representativcs as Additional lnsureds. copies
of such certificates and endorsements shall be provided to the County/City. The minimum
limits of Iiability required of all tiers of subcontractors are $ I ,000,000 combined single Limit
for Commercial General Liability and $ i,000,000 Combined Single Limit for Vehicte Liability
Insurance.
Section 12.Ownership of Facilities: Notwithstanding the fact that a portion or all ofthe
Project may be constructed in dedicated street rights-of-way or on property that has been or will be
dedicated to the County/City, the Project shall be and remain the property of the Developer until
acceptable title thereto is conveyed to the CountyiCity as provided herein. Such ownership by the
Developer shall likewise not be affected by any agreement that the Developer may have entered into or
may enter into with the County/City pursuant to the provisions of the Subdivision Map Act,
Section 66410 et seq. of the Code and the provisions ofthis Section shall control.
Section 13. Fee Credit and Reimbursement for Construction Costs. The Developer has
previously paid $86,940 in Traffic Signal Mitigation Fees for 230 multi-family dwelling units. The
Developer acklowledges that the Property is subject to a Developer Impact Fee of$378 per dwelling
unit resulting in a total traffic signal fee within the Plot Plan 22338 of $86,940. The Developer
accepts that this Agreement does not serve to estop the County/City from making adjustments to the
Developer Impact Fee, by amending the Ordinance, consistent with State law. Finally, the Developer
acknowledges that the County/City will annually consider adjustments to the Developer Impact Fee,
including the traffic signal fee component, which address, at minimum, increases in the consumer
price index. Additionally, cash reimbursement is subject to availability and programming of funds
received by the County/Ciry.
(a) Upon recordation of a Notice of Completion for the Proj ect and acceptance of the
Project by the County/City Engineer, the Developer shall submit a billing to the County/City
Engineer requesting determination ofthe actual cost ofthe Project and the traffic signal fee
credit. The dollar amount of the eamed fee credit cannot exceed the dollar amounl stated in
Exhibit C. The Developer is to supply all documentation requested by the CountyiCity
Engineer in determining the actual construction cost ofthe Project. The county/city Engineer
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lmprovement and Credit Agreement
is to use his best efforts to determine the amount of the earned fee credit within thirty (30)
calendar days of receipt of the bilI submitted by the Developer'
(b) The county/city Engineer wilt provide the Developer written notice, in the form of
ArfriUit p attached hereto (the "Credit Notice"), ofthe dollar amount ofthe eamed credit. If
the dollar amount of the eamed fee credit exceeds the dollar amount of the traffic signal
component ofthe Developer Impact Fee that would otherwise be due from the Developer (the
,'Fee Credit Excess,'), the county/city Engineer will identifu in the Notice that the Fee credit
Excess will generate either: (i) a cash reimbursement to the Developer or (ii) an earned fee
credit to offset the traffic signal fee component of the Developer Impact Fee required on
another approved tract or parcel map to be developed by the Developer. once completed, the
credit Notice is to be executed and dated by the county/city Engineer and the Developer. A
copy of the credit Notice will be provided to the countyicity Executive office who has
responsibility for the administration ofthe Ordinance.
(") Ifthe dollar amount ofthe eamed fee credit is less than the traffic signal fee component
of the Developer Impact Fee that would be due from the Developer, the credit Notice will so
note and the amount of credit to be applied with each Development Impact Fee payment on
either a per unit or per acre basis wilt be identified.
(d) If the Developer is issued one or more certificates of occupancy prior to date the
county/city Engineer accepts the Project and prepares the Notice of credit, then the
Developer will have to pay the full Developer Impact Fee for each certificate issued, and upon
acceptance ofthe Project by the County/City Engineer, the County/City Engineer will note on
the Notice ofCredit the futl traffic signal fee component paid to date ofacceptance and make
the appropriate adjustment for the application of the eamed fee credit consistent with
subsection (b) above.
Section l,l. Representations. Warranties and Covenants of the Develorrer: The
Developer makes the following representations, warranties and covenants for the benefit of the
County/City, as of the date hereof and as of the date of the Payment Request is delivered to the
County/City hereunder:
(a)Organization The Developer represents and warrants that the Developer is a
limite<l partnership duly organized and validly existing under the laws of the State of
Califomia, is in good standing under the laws ofthe State, and has the power and authority to
own its properties and assets and to carry on its business as now being conducted and as now
contemplated.
(b)Authori The Developer represents and warrants that the Developer has the
power and authority to enter into this Agreement, and has taken all action necessary to cause
this Agreement to be executed and delivered, and this Agreement has been duly and validly
executed and delivered on behalfofthe Developer.
(c)Bindin obli atrol'l The Developer represents and warrants that this
Agreement is a valid and binding obligation of the Developer and is enforceable against the
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(d)Completiqn of Proiect. The Developer covenants that it wilI use its reasonable
and diligent efforts to do all things that may be lawfully required of it in order to cause the
Project to be completed in accordance with this Agreement.
(e)Comphanee wllh Lq,y/!. The Developer covenants that, while the Project is
owned by the Developer or required pursuant to this Agreement to be maintained by the
Developer, it will not commit, suffer or permit any of its agents, employees or contractors to
commit any act to be done in, upon or to the Project in violation in any material respect olany
law, ordinance, rule, regulation or order of any govemmental authority or any covenant,
condition or restriction now or hereafter affecting the Property or the Project.
(f)Financial Records. Until the final acceptance of the Project, the Developer
covenants to maintain proper books ofrecord and account lor the Project and all costs related
thereto. The Developer covenants that such accounting books will be maintained in
accordance with generally accepted accounting principles, and will be available for inspection
by the County/City, at any reasonable time during regular business hours on two business
days' prior written notice, subject to mutually acceptable arrangements regarding the
confi dentiality of proprietary data.
(g) Permits. The Developer covenants that it will obtain all govemmental or other
permits required to proceed with the construction ofthe Project and that it will pay all fees
relating thereto. The Parties mutually represent and warrant to each other that to their actual
knowledge, as of the date hereof, there is no material legal impediment to the Developer's
proceeding with and completing the construction ofthe Project.
Sectionl5. Representations,Warranties and Covenants of County and City: Coun1y
and City makes the following representations, warranties and covenants for the benefit of the
Developer:
(a)Authori County/Ciry represents and warrants that County and City has the
power and authority to enter into this Agreement, and has taken all action necessary to cause
this Agreement to be executed and delivered, and this Agreement has been duly and validly
executed and delivered on behalf of County and City.
(b) Bindins Oblisation. County and City represents and warrants that thrs
Agreement is a valid and blinding obligation of County and City and is enforceable against
County and City in accordance with its terms, subject to bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors' rights in general
and by general equity principles.
(")Completion ofthe ImDrovements. The Coun ty and City covenants that it will
use its reasonable and diligent efforts to take expeditiously all actions that may be lawfully
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Developer in accordance with its terms, subject to bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in general and by general
equity principles.
required for the Project including issuing permils, processing and approving plans and
specifications and inspecting the Project in accordance with this Agreement.
Section 16. Indemnification: 'fhe Developer agrees to protect, indemnifu, defend and hold
rhe county and city, and their respective directors, officers, Legislative Body, Board ofSupervisors,
City Council, elected officials, employees, representatives and agents (the "lndemnified Parties"), and
each of them, harmless from and against any and all claims, including, but not limited to, third-party
claims, and against any and all losses, expenses, suits, actions, decrees, j udgments, awards, attomey's
fees, and court costs which the Indemnified Parties, or any combination thereof, may suffer or which
may be sought against or recovered or obtained from the Indemnified Parties, or any combination
thereof, as a result of or by reason ol or arising out of or in consequence of (a) the acquisition,
construction, or installation of the Project, (b) the untruth or inaccuracy of any representation or
warranty made by the Developer in this Agreement or in any certifications delivered by the Developer
hereunder, or (c) any act or omission ofthe Developer or any of its subcontractors, or their respective
officers, employees or agents, in connection with the Project. If the Developer fails to do so, the
Indemnified Parties, or each ofthem shall have the right, but not the obligation, to defend the same
and charge all ofthe direct or incidental costs ofsuch defense, including any attomey's fees or court
costs, to and recover the same from the Developer. The provisions of this Section shall survive the
termination discharge or other termination of this Agreement.
Section 17. Developer as a Private Developer: In performing under this Agreement, it is
mutually understood that the Developer is acting as a private developer, and not as an agent ofthe
County or Cify. The County and City shall have no responsibility for payment to any contractor,
subcontractor or supplier of the Developer.
Section 18. Other Agreements: Nothing contained herein shall be construed as affecting
the Parties'respective duty to perform its respective obligations under other agreements, land use
regulations or subdivision requirements relating to the development ofthe Property, which obligations
are and shall remain independent of the Developer's rights and obligations, and the County's and
city,s rights and obligations, under this Agreement; provided, however, that the Developer shall use
its reasonable and diligent efforts to perform each and every covenant to be performed by it under any
lien or encumbrance, instrument, declaration, covenant, condition, restriction, license, order, or other
agreement, the nonperformance of which could reasonably be expected to materially and adversely
affect the acquisition, construction and installation of the Project-
Section 19. Entire A eement,This Agreement contains the entire agreement between the
parties with respect to the matters herein provided for
Section20. Bindine on Successors and Assisns: Neithcr this Agreement nor the duties
and obligations ofthe Developer hereunder may be assigned to any person or legal entity other than an
affiliate ofthe Developer without the written consent ofthe County and City, which consent shall not
be unreasonably withheld or delayed. Neither this Agreement nor the duties and obligations ofthe
County and City hereunder may be assigned to any person or legal entity, without the wriften consent
ofthe Developer, which consent shall not be unreasonably withheld or delayed. The agreements and
covenants included herein shall be binding on and inure to the benefit of any partners, permitted
assigns, and successors-in-interest of the parties hereto.
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Section2l.Amcndments: Il.ris Agreement can only be amended by an instrument in
writing executed and delivered by all Parties.
Section 22, Waivers: No waiver of, or consent with respect to, any provision of this
Agreement by a Party hereto shall in any event be effective unless the same shall be in writing and
signed by such Party, and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given.
Section 23. No Third Partv Beneficiaries: No person or entity, other than the County and
City, shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either
express or implied) is intended to confer upon any person or entity, other than the Parties (and their
respective suciessors and assigns), any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
Section 24. Ng!!S: Any written notice, statement, demand, consent, approval,
authorization, offer, designation, request or other communication to be given hereunder shall be given
to the Party entitled thereto at its address set forth below, or at such other address as such Party may
provide to the other Parties in writing from time to time, namely:
DEVELOPER CITY COUNTY
Ed McCoy
Vice President
Fairfield Holland Road, LLC
5 510 Morehouse Drive, Ste 200
San Diego, CA 92121
Phone: 858 457-2123
Fax: 858 457-1121
J. Bradley Kutzner
City Engineer
City of Menifee
29683 New Hub Drive, Suite C
Menifee, CA 92586
Phone: 951-672-6777
Fax: 951-679-3843
Juan C. Perez
Director of Transportation
Countv of Riverside
4080 iemon St., 8rh F'loor
Riverside, CA 92501
Phone: 951-955-6740
Fax: 951-955-3198
Each such notice, statement, demand, consent, approval, authorization, offer, designation,
request or other communication hereunder shall be deemed delivered to the party to whom it is
addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic
communication, whether by telex, telegram or telecopy, upon the sender's receipt ofan appropriate
answerback or other written acknowledgment, (c) ifgiven by registered or certified mail, retum receipt
requested, deposited with the United States mail postage prepaid, 72 hours after such notice is
deposited with the United States mail, (d) if given by overnight courier, with courier charges prepaid,
24 hours after delivery to said ovemight courier, or (e) ifgiven by any other means, upon delivery at
the address specified in this Section.
Section 25. Jurisdiction and Venue: Each ofthc Parties (a) agrees that any suit action or
other legal proceeding arising out ofor relating to this Agreement shall be brought in state or local
court in the County of Riverside or in the Courts of the United States of America in the district in
which said County is located, (b) consents to thejurisdiction ofeach such court in any suit, action or
proceeding, and (c) waives any objection that it may have to the laying ofvenue or any suit, action or
proceeding in any of such courts and any claim that any such suit, action or proceeding has been
Fairfleld Holland Road. LLC
lmprovement and Credit Agreemenl 1j
brought in an inconvenient forum. Each ofthe Parties agrees that a final and non-appealablejudgment
in any such action or proceeding shall be conclusive and may be enforced in otherjurisdictions by suit
on the judgment or in any other manner provided by law.
Section 26.Attorncvs' Fees: If any action is instituted to interpret or enforce any of the
provisions ofthis Agreement, the Party prevailing in such action shall
other Parly or Parties thereto reasonable attomey's fees and costs
prejudgment and post judgment fees and costs) as determined by the
be entitled to recover from the
of such suit (including both
court as part ofthe judgment.
Section 27. Gov ernins Law: This Agreement and any dispute arising hereunder shall be
govemed by and interpreted in accordance with the laws ofthe State ofCalifornia
Section 28.Usase of Words: As used herein, the singular ofany word includes the plural,
and terms in the masculine gender shall include the feminine.
Section 29.lnterpretation. The Parties to this Agreement and their counsel have reviewed
and revised this Agreement, and the normal rule ofconstruction to the effect that any ambiguities in an
agreement are to be resolved against the drafting parties shall not be employed in the interpretation of
this Agreement.
Section 30. Counte roarts: This Agreement may be executed in counterparts, each of
which shall be deemed an original and which collectively shall constitute one instrument
[SIGNATURES OF PARTIES ON NEXT PAGE]
Fairfield Holland Road, LLC
lmprovement and Credit Agreement
12
lN WITNI,SS HEREOF, the parties hereto have executed the Project Agreement to
be effective on thc day and year first above written.
DEVELOPER
I'AS
ilv:
Wallace W. Edgerton, Mayor
ATTEST:
Ry:
Kathy Bennett. City Clerk
APPROVF,D AS TO IIORM:
E h lvlartyn, Interim City Attomey
009,Fairfield Holland Road LLC,
Delaware limired tiabili ty company
By: FF CRF Fund LLC,
a Delaware limited liability company,
its Manager
By: FF Properties, Inc.,
a Delaware corporation,
its M
By:
Name
on *ris/Z1ial,or
lP.
Ttsy
By:
Printed ame
Title
A K.. c, -
V-s L
Fairfield Holland Road, LLC
lmprovement and Credit Agreement
13
CITY OF MENIFEF],
l"€
COUNTY OF RIVERSIDE
RICOMMENDED FOR APPROVAL:
Date
Juan Perez
Director of Transportation
APPROVED AS FORM:
Dale A. G rdne:oute (lKLcr
County Counsel
APPROVAL BY THE BOARD OF SUPERVISORS
Date: MAY 5 200S
oard of Supervisors
JEFF STONE
ATTEST
Date i/AY 5 2009
Clerk of the SEAL)
KECIA RPER-IHEM
Fairfield Holland Road, LLC
lmprovement and Credit Agreement
14 t/AY 520tg !'/7
?b/,2
EXHIBIT A
DESCRIPTION OF PROPERry
[ATTACHED BEHIND THIS PAGE]
Fairfield Holland Road, LLC
lmprovement and Credit Agreement
EXHIBIT'A'
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R=CORDING REOUESTED BY
RIVERSIDE COUNTY
lvnen reccrrded, retum to:
No Fee, 6103 Go!€!'nment Code
oi :r
Fiverside Counly Planning Depadment
-cn FIoor County Adirinistrative Center
Mail Stop # 1070
THIS AREA FOR R,ECORDER'S USE OI/LY
DOC ts 21@@a*@@29294
Conformed CoovHas not bee^ "o.p.."d,r1rth o.igi^al
^ larry ll llard
o ='. = ";'il"tL;' [" *d IEip, i"^""".o..
a
STAT= CF C'alrL"n u NOTARY
couNry oF
ON before ine,, personally appeared
personally knov/n to me (cru,wrs*{s.*i
subscribed to the vrithi0 insirument end) io be the person(y, v/hose nene(fl islari-
h is i h"r*.1€ ir 2uthorized capacityoFa),and thal byacknovJ ledo ed to me that he/stse1hey executed the same in
h is/h€4+heir signaiuie(, on the instrument lhe Personfa,or the eniit/ upon behalf of which the persond) acted.
exacuied the inslrum
\ /ITNESS my hand and oflicial seal
91}.I{M/N DAYE HSNKEL
Commlidon + '1550871
Ncicry Pub,ic - Coliior.io
son Dlego Co,Jnty
4
CERTIFICATE OF PARCEL MERGER NO. i + 6 +
EXISTING PARCELS (Lssessor Parcel Numbers)RECORD O\A'T.]ERS
'2.A11-O'tO-n4-)FAIR,FIELD HOLI-AND ROAD L. P,
364-070-007FAIRFIELD HOLLAND ROAD L.A
364-070-008FAIRFIELD iIOLLAND ROAD L.P
364-070-009FAIRFIELD HOLLAND ROAD L, P.
LEGAL DESCRIPTION OF MERGED PARCELS
See attached - Exh;bit "A"
SIGNATURE OF RECORDED OWN Notarized.0stS
Signature:P.jnt Narirer'Trile:
=d Mccoy; Vice President
SignalurePrini NamdTft,a: Ed MCCoy; Vice Piesid.-nt
Signeture!"-int tian e/Tiu?:Ed i.4cCo ; Vicz Piesident
p:rnt l'l3me/Trtis: -d MCCoy; ViCe Presioent Signelure
RIVERSIDE COUNTY PLANNING DEPAR
rhis Ceiiificate oi Parcel MerE.r is aPproved-
T APPROVAI-
ASIIA Ar\1 Dateoaiura t I 15 lc!'printed Name: ), A rv,r A illg
Th,s ciocu
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l reviewed
D:te
Ri'.,ersiaje County Surveyor
RIVERSIDE COUNry SURVEYOR'S APPROVAL
CF
'\]OTA.RY
t'fy Ccrnm. Expftes FEb 7, 200t
I
CERTIFICATE OF PARCEL MERGER NO. 1?5 1
FARCELS 1, 2,3 AND 4 OF PARCEL MAP NO. 12598 IN THE COUNry OF R.IVERSIDE, STATE OF
CALIFORNIA AS PER MAP FILED IN BOOK 6S, PAGE 95 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNry.
SUBJECT TO ALL LEGAL STREEIS, HIGH\A/AYS AND EASEMENTS OF RECORD
CON-|AlNlNG 537,227 SQUARE FEET MORE OR LESS.
ALL AS SHOWN ON A SKETCH ATTACHED HERETO AS EXHIBIT "8" FOR REFERENCE ONLY
l1AR P. ,?FEJLER L 5959
,la /0,-l;Ttr-
ixPIRES 12-3i-03.
Record Owner(s): FAIRF]ELD HOLLAND RESIDENTIAL tta
Address:5510 MOREiiOUSE DR. SUITE 200, SAN DTEGO , cA 92i21
Exhibit Prepored by:PFEILER & ASSOCIATES ENGINEERS tNc
Address: 14181 FERN AVE cHlNo, cA 91710
Phcne Numcer: (909) 993-5800
Scole:. AS SHOWN
.Assessc r's Porcei Number(s):
MARK
P.
PFEILER
lxD$
OF c
364-07 C-C42 007.008 & 009
!i: _: i,1ri..ii,r'lif- ir l -l+r..4i9
EXHIBIT "A" . LEGAL DESCRIPTION
RGEL MERGER NO, ]?61CERTIFICATE OF PA
EXHIBIT "8" - MAP
PARCEL iltAP j.F- Zts1B P.ARCFL 1 ol
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0' 100' a00'400'
MERGED PARC& AREA = 5J7,227 SQ. FI.SCAL=' 1,= 200,
I.1ARK PTEILER .s,5959
Llr.i E BEARING D ISTI.}{C E
L]s 4{24'18" e 21 .27'
t2 s 4759'4s- yr JJ.d9
N 48'45'J5" V/:i+.04'
L+N 45'35'55" E 21.1ts':XPIRES 12-31_
Record Own e r(s)FAIRFIELD HOLLANO RESIDENTIAL LLC
Address: 5510 MOREHOUSE DR. SUlTE200, SAN OIEGO, CA 92121
Exhibit Prepored by:PFEILER & ASSOCIATES ENGINEER,S INC
Address: i4i81 FERN AVE CHINO cA 917 iO
Phone Number: {909} 993-5800
Scoie:1"=200'
Assessor's Porcel Number(s)
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364-07C-O42. C07 003 & 009
P RCJECT
SITE
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EXHIBIT I'C" * SITE PLAN
CERTIFICATE OF PARCEL MERGER NO. I +6 +
PLOT PLAN'... - . r@Jcl
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Recorct Orvne4sl; FAIRFIELD HOLLAND RESiDENTIAL, LLC
Address. 5510 t'ioREHOUSE DR. SUITE 200
Sxhibit Prepa red by ATLIANCE I-AN D PI.,A.NNING & ENG.
Address. 2248 FAP.ADAy AVE tYo.
pnone Number: (760) 43 L -9896
5,:21e,, IIOT TO SCALE
Ass essor's Pa rcel Nu mber(s) : 3!1 iZ!:94.!92!!!.8!!9
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EXHIBIT B
DESCRIPTION OF INTERSECTION IMPROVEMENTS
Traffic Signal at the intersection of Holland Road and Antelope Road
City of Menifee Traffic Signal, Lighting, Signing and Striping Plans - Plot Plan
22338
tP 070142
Fairfield Holland Road, LLC
lmprovemenl and Credit Agreement
EXHIBIT "B'
o/r{
/p2
SUN CITY
RD
(t
Oo6zO<_)
ty
Fz
MENIFEE
tA PIEDRA RD
HOTLAND RD
PHOJECT
VICII!IT)'N/AP
r''r T s
l'OWI\SHIP: 6S
i'<AlrlGE: JW
SICTIONj 2+1i
2OO4 TIiOMAS BROS. MAP PAGE 868
I{O SCALE LOCATION IMAP
Number of Multi-Family Residential Units
Developer Signal Fee Obligation Amount
Fee Breakdown
Paid Lots:
Multi-Family ($378/du)
Unpaid Lots:
M ulti-Family ($378/du)
EXHIBIT C
TRAFFIC SIGNAL FEE OBLIGATION
PLOT PLAN 22338
230
230
$ 86,940
$ 86,940
0 G
$
$
$
$
Traffic SignalCost Estimate (Low Bid)
Estimate Breakdown
145,781
Signalization/Signing/Striping
Design/Engineering
Fees and Bonds
145,7 81
Traffic Signal Cost Estimate Total $ 145,781
City will reimburse actual eligible cost up to a maximum of $86,940 once the project is
complete and actual costs are verified.
Fairfield Holland Road, LLC
lmprovement and Credit Agreernent
EXHIBIT'C"
Fairfield Holland Road, LLC
lmprovement and Credit Agreement
EXHIBIT D
PAYM NT BOND & PERFORMANC BOND
(Public Work - Civil Code Section 3247 et seq.)
IATTACHED BEHIND THIS PAGE]
EXHIBIT'D'
State of California
County of 6ln DteTo
onlk.b(oarl t1,)DC9 betore me,
oat6
personally appeared u
u bl tc
1J
c M, M. RHINESMIIH
ommtrlton # t l9O2 E2otory pubtic - Co tornioSon Otego Count
N
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) igare subscribed to the
within instrument and acknowledged to me that
hbAfu^hey executed the same in hr6/t 6tltheir aulhorized
capacity(ies), and that by h.is/h67their signature(s) on the
instrument the person(s), or the entity upon behall ol
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State ol Calilornia that the toregoing paragraph is
true and correct.
WITNESS my hand and otl
Ccrrm.r]n3l ml2
Piac€ Nolary Seai Abo€
t/xJ.,LSignatu
OPTIONAL
S
Though the inlormation below is not rcquted by law, it may pove vatuable to percons rclying on the document
and could prevenl frcudulent removal and rcattachfient ol this fom to another document.
Description ol Attached Document Fa,r4c/1 /12,//z r^a Pc'arl LL(
A +5 m ?tTitle or Type of Document
Document Date:Number ol Pages:
Signe(s) Other Than Named Above
Capacity(ies) Claimed by Signer(s)
- Corporate Officer - Title(s)
a Partner-tr Limited C General
D Attorney in Fact
D Trustee! Guardian or Conservatorfl Other:
tr Corporate Otlicer - Title(s)
fl Partner-! Limited tr General
tr Attorney in Fact
C Trustee
D Guardian or Conservator
tr Other:
Signer's Name
Il lndividual
Signer ls Bepresenting:_Signer ls Flepresenting
RGHT THUMAPRNT
OF SIGNEB
RIGHTTHUMBPRINT
OF SIGT{EF
O 2007 Nalioal Nolary ,strialion. 9350 De Solo Av€., PO Box 2402. Chabrcnh CA 91313.2402. eM NationalNotaryorg ltem *5907 Feorde.:cattTott-F6o 1-8(rO 876,6a27
CALIFORilIA ALL.PURPOSE ACKNOWLEDGMENTca:c<b
Signer's Name:
Ll lndividual
Earned Fee Credit Amount:$86,940
Subtract Amount of Development lmpact Fee traffic fee component
still due as of the date of this Notice:
$378/unitx0units $0
EXHIBIT E
NOTIGE OF CREDIT
Date
Units that have not paid Development lmpact
Fees as of the date of this Notice:
Fee Credit - Excess/(DeficiencY)
A fee credit of $ 0/ unit* will apply to Plot Plan No. 22338
Application of Fee Credit Excess:
Amount of Fee Credit Excess
Amount to be Applied to Plot Plan 22338 on
a per unit basis of $ 0/ unit*:
Amount to be Applied to TracVParcel Map
a per uniUacre basis of $-/ unit*:
0 Units
$86,940
$86,940
$0
on
$0
Amount to be Reimbursed
Terms on which Reimbursement is to be made
Citv will reimburse actual eliqible cost upto a maximum of $86,940
- The traffic signal component of the Development lmpact Fees collected for the above
specified Plot Plan shall be reduced by the rates shown in bold face type at the time of
payment.
once the proiect is comp lete and actual costs are verified.
Fairfield Holland Road, LLC
lmprovemenl and Credit Agreement
EXHIBIT'E"
Plot Plan No. 22338
$86,940