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HomeMy WebLinkAboutCity Council Agenda Item No. 06 ~ REPORT EO CITY COUNCIL To: HONORABLE MAYOR AND MEMBERS OF THE CITY CGUNCIL FROM: PAT KILRtJY INTERIM CITY MANAGER DATE: APRIL 1~, 2fl~2 SUBJECT; PUBLIC NEARING - ABANDONMENT ol= PROPERI~ ACQUIRED FoR PURPOSES OF A P~BLlC PARK ~APN; 3~1-21~-~fl5~; PAR~C IMPLEMENTATION AGREEMENT BdClCt~l"OUnCI The East Lake Specific Dian contemplates the development of three public parks in connection with the Summeriy Project. The three public parks sites are composed of a 24 acre regional park, a 6.7 acre park site partially within ajoint-use retention basin and utility facility yielding approximately 3.8 acres of future useable park space), and a 4.8 acre neighborhood park site next to a proposed elementary school. The attached map illustrates the location of these park sites. Beginning in 2007, City staff and representatives of the former developer began discussing the concept of the developer providing a high amenity regional park on the 24 acre site. in exchange for these amenities, the developer would be relieved of its obligation to make other public park improvements and the 4.8 acre neighborhood park site would revert back to the developer. The current Summeriy Project developer, McMillin Summeriy LLC, has submitted a proposal to provide a high amenity, turn-key park on the 24 acre park site. The park site proposal calls for the construction of a baseball oriented "tournament ready„ facility with four baseball f elds (two lighted}, concession/restroom facility, skate park, soccer field and basketball court along with other related amenities. A copy of the most recent draft park concept plan is attached. On February 28, 2012, the City Council set a public hearing for this evening to consider whe#her or not to abandon the 4.8 acre park as part of a comprehensive agreement to AGENDA ITEM No. 6 Page 1 of 16 PARK SITE ABANDONMENT AND PARK IMPLEMENTATI~}N AGREEMENT April 10, 2012 Page 2 develop the 24 acre park site. Notice of the public hearing was published in the newspaper and posted on the 4.8 acre site as required by Municipal Park Abandonment Law of 1939, Government Code Sections 38501-38510. Can March 20, 2012, the Planning Commission convened to determine whether abandonment of the 4.8 acre park site was consistent with the City's General Plan. The 4.8 acre park site is designated within the East Lake Specific Plan as "open Spacers with asub-designation as "Neighborhood Park." In the event that the City Council determines to abandon this site, the Specific Plan use designation will remain as "Open Space"; however, the sub-category will be concurrently amended by administrative action such that the "neighborhood park" sub-designation is removed. After reviewing the information provided at the Planning Commission meeting, the Commission adopted Resolution No. PC 2012-17 determining that the abandonment and transfer of the 4.8 acre park site is in conformity with the City's General Plan. Notably, the 24 acre park slated for high quality recreational amenities will by itself exceed the parkland acreage standards set under the East Lake Specif c Plan and the Quimby Act ~5 acres of park per 1,000 residents}. With an expec#ed population of 4,700 in the Summerly Project, 23.8 acres of parkland is required. Accordingly, the total qualifying area dedicated for parks at the 24 acre park site alone exceeds the total required parkland dedication requirement. Discussion In order to implement the park abandonment and obligate the developer to construct the high amenity park improvements on the 24 acre site, the parties have prepared the attached Park Impiernentation Agreement {the "Agreement"). The Agreement provides the following material terms: • Developer is required to improve the 24 acre site as a multi-use park consistent with the park concept plan {subject to such modification as necessary to accommodate public safetylaccess requirements as may be identified in the plan review process) and proposed three part phasing plan, • Thee first phase of the park (8± acres) must be completed by the issuance of the 700" certificate of occupancy, the second phase (4± acres) upon the issuance of the 1,OOOth certificate of occupancy and the final phase {12± acres) on the issuance of the 1,450t~ certificate of occupancy. • The City shall reconvey the 4.8 acre site to the developer, • Developer shall receive an in-lieu park credit and have no other park fee obligations. Park fees previously paid by the developer {estimated at less than $35,000) will be refunded. Page 2 of l+~ PARK SlTEABA~UQNMEIyTAND PARK lMPLEME~ITATIGI~ AGREEMENT April 10, 2012 Page 3 As discussed at the February 28th City Counci! meeting, McMi!!in and the ~.ake Elsinore Unified Schoo! District are engaged in discussions evaluating the possibility of combining the 4.8 acre site with the adjacent school site parse! to provide for the possibility of an expanded schoo! site. Those discussions remain ongoing. In the event that the developer and ~.EUSC~ do not agree to use the site for an expanded schoo! and the developer seeks development rights inconsistent with the Open Space designation, such future development propose! would require amendment #o the East Lake Specific Plan subject to full review by the Planning Commission and City Council. Fiscal Impact There is no material impact to the City's General Fund. Previously paid park fees will be refunded to the developer in the amount of approximately $ 33,600 {21 building permits issued. Recommendation 1. Conduct a public hearing as noticed and overrule any objections to the abandonment of the 4.8 acre site, if there are any, and order the transfer of the site pursuant to the terms of the Park lmplementation Agreement; and 2. Approve the form of the Park lmplementation Agreement and authorize the Mayor to execute such agreement, subject to any minor modifications as may be approved by the City Attorney; and 3. Authorize the Mayor and City Clerk to sign, acknowledge, and deliver a deed to the 4.8 acre site as required pursuant to Government Code section 38509 and such other ancillary documents as may be necessary to implement the Park lmplementation Agreement. Prepared by: Barbara Leibold City Attorney Approved by: Pat Kilroy Interim City Manager Attachments: 1. Park Site Map 2. Park Concept Plan 3. Park lmplementation Agreement Page 3 of 16 , "RC~e. 4i., ry-i!`^-~ t i t~~ ~ {`'3',,,1177~r"r`e~'f~ r ~1 } ~ ~ \K r f , 5 ~ y y ~ ~ a 1 1 1 i 1 f f 3`''i# p ~ ~ ` 'g`irl" ~ ~ f t 1` i y ~ a~"~} i 3 ~ ~ t / ; i ~ ~ f 1.. „ r .d1 ~ ~ Nil .x.,,~ 4~~, r ~ ~b s. Air y ~a ~ pry ~ ~ + ~ ~ ~ ~ ~ ~ ` ~ s"" ~ (i I f L`~ ~ ~ +w ,,s ~ ~ ~ a, rte' k •~'t a a . 1 ~ ~ t .q~~e~ 4" r ~ ~ ~V'1 1~~I ~.G.: ~ 1,,,:,,,1" ~ r ` ~ F / ` S ~'~f ' ,i ~ ~ ~ Ia h+. 4\\ L + ~ 7 i... Active Can Space Natural ~~en ~_ce 1 l~llulti-use Park ~ open duffer 2 Neighborhood Park 7 San Jacinto liver C+orridcr 3 ~.inear Nature Trail 4 ~ol~ Course 5 Gold & recreation Clubs ~.c~l!"1 ~QC11S ~~~e p~iC Plan Page 4 of 16 PA~ I~PLE~E~TATIC~ A:~REE~ENT This PARK I~PLE~ETATIC►N AGREEMENT ("Agreement"} dated for identification purposes only as of April 10, 2012, is entered into by and between the City of Lake Elsinore, a California municipal corporation f "City"} and 1VIc1Vlillin Summerly, LLC, a Delaware limited liability company, and 1V1cIVlillin Real Estate Services, L.P., a General Contractor licensed under California law, {hereinafter jointly referred to as "Developer") successor in interest to Lang-CP Labe Elsinore, LLC ~"Laing"}. City and Developer are sometimes referred to collectively as the "Parties." RECITALS A. On June 8, 1993, the City Council of the City adopted Ordinance No. 956 approving and adopting the East Lake Specific Plan covering approximately 3000 acres of property as Sher described herein. The East Lie Specific Plan was thereafter amended on several occasions, including on Aug~~st 24, 2004 by adoption of Ordinance No.1126 approving the East Lake Specific Plan Amendment 6 {"SPA 6"). B. The property included within the East Lake Specific Plan is sit~~.ted within the y Rancho Laguna Project Area II Redevelopment Plan and the Rancho Laguna Project Area III Redevelopment Plan (the "Redevelopment Plans") adopted by the former Redevelopment Agency of the City of Lake Elsinore..("Agency"~ in accordance with Part 1 of Division 24 of the Flealth and Safety Code of the State of California, as amended (the "Redevelopment Law"). C. In furtherance of the objectives of the Redevelopment Plans, on or about December 26, 2002 Agency and Laing entered into a Disposition and Development Agreement relating to the acquisition and development of certain property located within the East Lake Specific Plan ("Project"}. Thereafter on or about March 8, 2011 Agency and Developer entered into an amendment and restatement of the 2002 Disposition and Development Agreement ("DDA"). D. City and Laing entered into a First Amended and Restated Development Agreement which was recorded as Document No. 2004-1001282 ("Restated Development Agreement"} and City approved Tract 31920-1, both of which address properties within the East Lake Specific Plan as aanended by SPA 6 and which are subject to the DDA. The Restated Development Agreement and the conditions of approval of Tracy 31920-1 set out the obligations of Developer with respect to dedication of park lands and construction of parks within Tract No. 31920- l . The DDA includes a schedule of performance by Developer for the phased completion of the Project. E. The Parties now enter into this Agreement in order to implement the park land dedication and improvement provisions of City's Quimby Act Resolution loo. 89-44, SPA 6 and the Restated Development Agreement and to coordinate the phasing of such improvements with the provisions of the DDA. The Agreement. clarifies and carries out the conditions of approval of Track 31920-1 and SPA6 and clarifies and carries out the Park Implementation Agreement 040512 Page 5 of 16 provisions of the Restated Development Agreement. This Agreement is entered into consistent with the provisions of California Gover~unent Code Sections 6864-6~869.~ ("Development Agreement Law"), Government Code Sections 38501-38510 {"Municipal Park Abandon~~nent Law of 1939"), and Chapter 19.12 of the City of Lake Elsinore's Municipal Code. F. Due to changes in circumst~~nces after the approval of the original East Lake Specific Plan and SPA 6, City prefers larger parks with more complete recreational amenities to smaller parks which require comparatively more maintenance and provide limited useful recreational facilities. City also has limited funds with which to improve dedicated parklands and caru~ot utilize such lands for any other purpose under existing law. Although SPA ~ provides for two small park sites, 6.69 acres {Lot 28) and 4.77 acres {Lot 19) respectively, in addition to the 24.11 acre park site Lot 29), it is more consistent with the City's park goals to have one large improved "regional park" on Lot 29, forego Developer constructed park improvements in Lot 28 which also provides water retention capacity and an EvMw~ pu~:np station facility, and relinquish ownership of Lot 19. G. City has determined that Lot 19 is no longer necessary to serve a public park purpose for which it was originally dedicated. Accordingly, City desires to reconvey Lot 19 to McMillin Su~:nmerly, LLC, as the current ov~~ner of Tract 31920-1 and successor in interest to the dedicator of Lot 19 pursuant to Government Code section 66477.5. Additionally, as a result of the changes of circumst~~nces noted above, the Community Development Director has concluded that the recreational a~~nenities to be constructed on Lot 29 by Developer pursu~~nt to this Agreement will provide for a more intense and better recreational use to the public such that the reconveyance of Lot 19 is a minor modification to SPA 6 and is consistent with its purpose and intent. H. This Agreement relates to the timing and financing of previously approved elements of the development of the property referenced herein; will not have significant impact on the envirorvnent; is consistent with the Environmental Impact Report certified for the granting of the entitlements referred to herein; and is consistent with other prior environmental determinations and with the requirements of the. California Environmental Quality Act. As such, no further environmental review is necessary for approval of this Agreement. I. This Agreement is consistent with the City's General Plan, the East Lake Specific Plan and SPA 6, and associated amendments, the Restated Development Agreement, DDA, and other applicable ordinances, plans and policies of the City. J. Developer and City now desire to clarify the respective rights and obligations under the Restated Development Agreement, East Labe Specific Plan, SPA 6, the conditions of approval of Track 31920-1, the DDA and City's Quimby Act Resolution No. 89-44. Page 6 of 16 ......__..__._..~.......~...~..Ww_~..~........__..._.~_.._.W.......v..w.....W......_.......__.N...~......a......_...........W_._.. ......._...V...._ Page 2 ..............w~.~~.~...~.....4W..._...........W~._~.... A~T~EEENT NCIw, THEREFORE, for good and valuable consideration, the receipt and stiff ciency of which is hereby acknowledged, the Parties hereto agree as follows: ARTICLE I I~PROVEIENT ANTI RECONi~E~'ANCE Section I.l. Improvements of Dedicated Parkland. Developer shall improve Lot 29 of Tract 31920-1, the approximately 24 acre lot previously dedicated to City for park purposes and accepted through approval of Tract 31920-1. Lot 29 shall be improved as a multi-use park {"Multi-L1se Park") in a manner consistent with the intent of SPA 6 and as more specifically described in Article II hereof. Developer shall have no obligation to install park improvements within Lot 28. Section 1.2. Reeonveyance of Lot in Excl~„ante for I= e,,,~nents. Concurrent with the approval of this Agreement and as a condition precedent thereto, City has determined that Lot 19 of Tract 31920-1 previously dedicated as park land is no longer needed for park purposes, would create a undo financial burden for City and that Lot 19 should therefore be reconveyed to McMillin Sumerly, LLC, free of any requirement for a public park use pursuant to Crovernment Code section 66477. ~ . A quitclaim deed in a form substantially consistent with Exhibit "A" attached hereto and incorporated herein by reference reconveying Lot. 19 of Tract 31920-1 shall be executed and delivered by City to McMillin Summerly, LLC, upon approval of the Park Improvement Plans, which approval shall not be unreasonably delayed or withheld {see section 2.2 belowj. Following reconveyance of Lot 19 by City, McMillin Summerly, LLC or its assignee, shall have the right, at its option, to apply for and pursue entitlements for development of Lot 19, which entitlements are not a part of this Agreement and shall be subject to review and discretionary approval by the City, including, but not limited to, compliance with CEQA and applicable provisions of the East Lake Specific Plan and SPA 6. McMillin Summerly, LLC, shall be responsible for payment of all costs of recordation related to the quitclaim deed, including any escrow fees, title insurance and other related costs, with the exception of the Documentary Transfer Tax which is the obligation of the City. Section 1,3. In-lieu Credit. Developer has performed certain improvements to Lot 29, including but not limited to mass grading activities, to which Developer has submitted evidence of the value of such improvements in an amount in excess of $769,500 {405 units x $1,900j, which evidence has been reviewed and accepted by City as establishing a benefit to the City of at least $769,500. Accordingly, Developer is granted a park fee credit as of the Effective Date of this Agreement in the amount of X769,500 less the Refund Amount {as defined in Section 1.4 belowj. Section L4. Refund of Previously Paid ,,.P,,ark Fees. McMillin Su~nmerly, LLC, or its predecessor and assigns, have deposited Project related park fees with the City in an amount estimated at less than $35,000. within thirty {30j days of the Effective Pa e 3 .....~...~Page.,7 o,fM16 Date of this Agreement, City shall calculate and determine the exact amount of park fees previously paid and refund such previously paid park fees {the "Refund Amount") to McMillin Surnmerly, LLC, The Ref~~nd Amount shall be deducted from the amount of the in-lieu credit set forth in Section 1, 3 . Section 1,~. Completion Qf ~~nstruct~ n. Developer shall complete construction of the Multi-Use Park Improvements within the time set forth in the attached Schedule of Performance and Phasing, attached hereto as Exhibit "B" and incorporated herein by reference. Developer shall not be required to furnish security for the completion of the Multi-Use Park Improvements, so long as Developer performs consistently with the Schedule of Performance and Phasing and the terms and conditions of this Agreement. Should Developer or its assigns proceed with construction of units in excess of the number for which fees have been credited, fees for the excess units shall be paid by Developer and the fees shall subsequently be reimbursed to Developer by City upon completion of the required Multi-Use Park Improvements pursuant to the Schedule of Performance and Phasing, Section 1,6. ~u,imy Act 4bliatio~,F~1~~Ied, City acknowledges and agrees that the previous dedication of Lots 2 g and 29, the improvements thereon completed to date, and the completion of the future Multi-Use Park Improvements to Lot 29 consistent with the Design and Park Improvement Plans fully satisfy the Project's park land dedication and in-lieu fee requirements of the City's Quimby Act Resolution No. 89- 44. ARTICLE II PARK DESIGN AND C(JNSTUCTION OF IIVIPI~GVEMENT Section 2.1. D, es Developer has prepared a concept~~.l park design for the Multi-Use Park in consultation with City, a copy of which is attached hereto as Exhibit "C" and incorporated herein by reference the "Design"}, The Design proposes that the Multi-Use Park be improved in three phases as set out in the Schedule of Performance and Phasing the "Phase 1 Park Improvements," "Phase 2 Park Improvements" and the "Phase 3 Park Improvements" which are collectively referred to herein as the "Multi-Use Park Improvements") and substantially conforms to all of the specifications of SPA 6 and is fully consistent with its purpose and intent. City approves the components and overall concept of the Design, subject to review and approval by City of the Park Improvement Plans, including such modifications, if any, as necessary to accommodate public safety/access requirements. Section 2.2. Park Improvement P_lans~. Developer shall cause plans and specifications for the Multi-Use Park Improvements, including all necessary engineering plans and specifications, to be prepared consistent with the Design and with the standards, quality and materials of the park elements and specification levels to those found at the Canyon Hills Community Park in the City (the "Park Improvement Plans"). The Park Improvement Plans shall be submitted by Developer for plan check approval by the Department of Community Development, Division of Building and Safety, within the Page 8 of 16 ....._H.._._..~.....r_..._~~. Page 4 .__..._....W..~....~~w...___-....~._...~~...~...__.____._...~~._ti......M~w...M...~..._..___~.~..~..w....._..~.µ..........vw..~.~.~.... time set out in the Schedule of Performance and Phasing. City shall use commercially reasonable efforts to expeditiously process all approvals relating to the Park Improvement Plans consistent with the Schedule of Performance and Phasing. To the extent that any failure by City to process and approve the Park Improvement Plans within the time set out in the Schedule of Performance and Phasing causes a delay in the commencement of construction of the Phase 1 Park Improvements, Developer shall be entitled to an extension of time for completion of its obligations under the Schedule of Performance and Phasing equal to such delay by City. Section 2.3. Construction of Multi-~Jse Park. The construction of the Multi- use Park Improvements in phases pursu~~nt to the Park Improvement Plans by Developer as provided in this Agreement is not a City public works project. City seeks a completed, "tu~~-key" park as a condition of approval of SPA ~ and Tract No. 31920-1. City's role is to approve the Park Improvement Plans, perform regular inspections, and to make Lot 29 available to Developer for completion of the work of improvement. Developer is performing this work of improvement solely for the purpose of fulfilling the conditions of approval for Tract Map 31920-1 and SPA 6, and to meet the obligations under the Restated Development Agreement and DDA. Section 2.4. Grant of Access, Prior to the commencement of construction of the Phase 1 Park Improvements, City and Developer shall enter into a Right of Entry Agreement substantially in the form of Exhibit "D." Section 2.5. Phase commencement, Com~l„eton and ~elay^ Except for permitted delays under Section 4.9, once a phase of the Multi-Use Park Improvements pursuant to the Park Improvement Plans is commenced, Developer shall be diligently and continuously pursued to completion in a timely manner in accordance with the Schedule of Performance and Phasing. upon completion of the Multi-Use Park Improvements with respect to a phase, Developer shall deliver to City a notice of completion. City shall have thirty X30) calendar days from the date of receipt of notice of completion to dispute the assertion of the completeness of the phase. Any such dispute shall be delivered by Notice to Developer with a detailed explanation as to why City does not consider the phase complete. Section 2.6. Prevallln~ wages; Indemnity. 'kith respect to meeting the requirement to provide a "tu~r~~ey" park, Developer and its contractors and subcontractors shall be responsible for compliance with prevailing wage laws as set out in Labor Code Section 1770, et seq., and shall be responsible for the keeping of all records required pursuant to Labor Code Section 1776, complying with the maximum hours requirements of Labor Code Sections 1$10 through 1$1 and complying with all regulations and statutory requirements pertaining thereto. Upon the request of the City, the Developer shall certify to the City that it is in compliance with the requirements of this Section 2.6. Developer shall indemnify, protect, defend and hold harmless the City and its officers, employees, contractors and agents, with counsel reasonably acceptable to the City, from and against any and all loss, liability, damage, claim, cost., and/or expense Page 9 of 16 Page 5 ....u..W....~......_....__.~.~.4_...._.. __.~...~....~_._...~......_...~.~~.......~~~....~.~~W......w.~. {including reasonable attorney's fees, court and litigation costs, and fees of expert witnesses) which, connection with the development, and/or construction of the Multi- use Park Improvements, including, without limitation, any and all public works {as defined by applicable law}, results or arises in any way from any of the following: {a) the noncompliance by Developer with any applicable local, state and/or federal law, including, without limitation, any applicable federal andlar state labor laws {including, without limitation, if applicable, the requirement to pay state prevailing wages); {b} the implementation of Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or {c) failure by Developer to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the parties that, in connection with the construction of the Multi-Use Park Improvements, including, without limitation, any and all public works {as defined by applicable law}, Developer shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction of the Multi-Use Park Improvements by the Developer. Section 2.7. Liens; Acceptance of Pa,r~,,,Conveyance. Conditional final lien releases for labor and materials provided in connection with the Multi-Use Park Improvements shall be submitted to the City as part of the notice of completion {provided that this requirement shall not apply if waived by the City because Developer has provided to the City a payment bond or provides a band protecting the City from mechanics' liens made by parties that have not provided such lien releases in a form acceptable to the City}. Additionally, Developer shall assign to the City, to the extent assignable, all of Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of contingent obligations of third persons with respect to such Multi-Use Park Improvements. Any warranties or guarantees of third parties with respect to the Multi-Use Park Improvements shall be delivered to the Director of Public Works as part of the notice of completion submitted pursuant to Section 2.~. City agrees to promptly accept ownership of each phase of the Multi-Use Park Improvements upon completion of the improvement for the phase in accordance with the Park Improvement Plans, submittal of the aforemention lien and warranty documentation, and the completion of a sixty {60) day landscape maintenance period at the conclusion of which all landscape is established and healthy. City accepts responsibility and will insure against any casualty loss to the property and/or the landscape during the sixty {60) day landscape maintenance period. No public use of a phase of the Multi-Use Park shall be permitted prior to such acceptance by the City, City's acceptance of a phase of the Multi-Use Park Improvements shall also constitute City's agreement to maintain the improvements accepted and to release Developer of any such obligation. Page I o of 16 .._.~......W........__...._w... page 6 _.....u...__......._...........~_...~..W.._.....~ .............~.~.W___...__.._~..~~.._...~_.... ARTICLE III El~F~3RCEl~IENT ANA REMEDIES Section 3,1. Defaults-General. Failure ar delay by either party to perform., comply with or observe any of the conditions, provisions, terms, covenants or representations of this Agreement constitutes a default under this Agreement. An injured party shall give written notice of default to the party in default, specifying in reasonable detail the default complained of by the injured party. As provided below, the party in default shall immediately commence to cure, correct or remedy such default upon receiving notice, and shall complete such cure, correction or remedy with diligence. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the date of default. Except as required to protect against further damages, the injured party may not institute legal proceedings against the party in default until an "Event of default" (as such term is hereinafter defined) has occurred. For purposes of this Agreement, an "Event of Default" for poa~poses of instituting legal proceedings by anon-defaulting party against the defaulting party shall mean a failure to satisfy, perform, comply with or observe any of the conditions, provisions, terms, covenants or representations contained in this Agreement and such failure having continued uncured or without the defaulting party commencing to diligently cure far thirty (30) days after receiving notice of the default in writing as described above. Section 3.2. Remedies Cumulative. No right, power, or remedy given by the terms of this Agreement is intended to be exclusive of any other right, power ar remedy, and each and every such right, power, or remedy shall be cu~rnulative and in addition to every ether right, power ar remedy given by the terms of any instrument, ar by any statute ar other~~se. ARTICLE IV ADDITItJNAL PREVISIONS Section 4.1. Counterparts. This Agreement may be executed in counterparts, each of which so executed shall be deemed an original, and such counterparts together shall constitute but one Agreement. Section 4.2. ,Minor Modification of SP,.A 6,. C~~. This Agreement carries out the purpose and intent of SPA b and the originally approved East Lake Specific Plan and their respective conditions of approval and constitutes only a minor modification of the original East Lake Specific Plan and of SPA b. Section 4.3, Integration; Entire A~ ent. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties. No supplement or Pagellofl6 ...._..W. .........M._.........~............wv..~...~._.....w..~.M. Page 7 ~._........._...._..._......_......~W..._.~.._~...~.__.~...m...._._~.._......... .........M_..W~._....~._..~............ modification of this Agreement or any provisions hereof shall be binding unless executed in writing by the parties. Section 4.4, ~no~eratic~n. The parties agree to fully cooperate in carrying out the intent of this Agreement and shall execute all documents reasonably necessary to that end. The court may order any party to execute any document necessary to carry out the terms and provisions of this Agreement. McMillin Real Estate Services, L.P. may be substituted for another licensed general contractor fu11y qualified to implement this Agreement. City agrees to cooperate in such a substitution should it be requested and its cooperation will not be unreasonably withheld. Section 4.~. ~1ot_.. All notices, requests, demands and other communications ("Notice") called for or contemplated hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, transmitted via facsimile or within two (2) days after having been mailed by United States certified or registered mail, postage prepaid, addressed to the parties, their successors-in-interest or their permitted assigns at the following addresses, or at such other addresses as the parties may designate by written notice in the ma~~ner aforesaid: City. City of Labe Elsinore 130 South Main Street Lake Elsinore, CA 925 3 0 Attn: City Manager Fax: (951) 674-2392 With copy to: Leibold McLendon & Ma~~n, P.C. 22422 Mill Creek Drive Suite 105 Laguna dills, CA 92653 Attn: Barbara Z. Leibold, Esq. Fax: (949) 457-6305 Developer; McMillin Sumrnerly LLC c/o The Corky McMillin Companies 2750 Womble Road San Diego, CA 92106 Attn: Brian Milich Fax: X619) 336-3596 Page 12 of 16 ._.~_..~~__~._~.w.~....._._..._._~.w..__u___.....~...~.~._w.~..~...w..._~.~...v..__~.v.._~_W.,..._.a~__,.u....... Page 8 ~-__._~...~.w____~.._._~v._....~~...~..~..~..........__...~..~..~ ....~.~_.~.~..~..~.....~r~~..~.._~..~.~...._~.~.~___~... ~Uith copy to: Friedman Stroffe & Gerard, P.C. 19800 MacArthur Boulevard, Suite 1100 Irvine, CA 92b 12-2425 Attn: James D. Stroffe, Esq. Section 4.f . No Adverse Interpretation to Drafter. This Agreement was prepared and negotiated in an arm's length negotiation in which both Parties were represented by attorneys and the attorneys for each party were involved in the drafting of the Agreement. As such, neither party can be identified as the drafter of this Agreement and the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent and no rule of strict construction will be applied against either party. Section 4.7. Tinin of Performance. Time is of the essence under this Agreement. Section 4.8. _~',,~e~.,~t~c~ ~ei_, ys. Neither party shall be deemed to be in default for failure or delay in performance of any of its obligations under this Agreement if caused by floods, earthqu~~kes, other acts of God, fires, wars, riots, terrorism or similar hostilities, strikes, other labor difficulties, gover~unent regulations or other causes beyond either of the parties' control. If any such event shall occur, the term. of phis Agreement and the time for performance by Developer of any of its obligations hereunder or pursuant to the Park Improvement Plans shall be extended by the period of time that such events prevent construction of the Multi-IJse Park In~prove~ents, Each party shall promptly notify the other party of any delay hereunder as soon as passible after the same has been ascer~;ained but in any event no more than sixty ~b0 days of knowledge of the cause of such delay, and the time for performance of the delayed party's obligations shall be extended by the period of any such delay. Failure to present a claim for delay within sixty (boj days of knowledge of the cause of such delay, shall be deemed waiver of any time extension. Notwithstanding the foregoing, in no event shall Developer be entitled to a permitted delay due to an inability to obtain financing or proceed with development as a result of general market conditions, interest rates or other similar circumstances that make development impossible, commercially impractical or infeasible. Section 4.9. Third Party Bene~cia,.._,_ No person or entity other than City, Developer and the permitted successors and assigns of each of them shall be authorised to enforce the provisions of this Agreement, Section 4.1~. Governing Law. This Agreement shall be governed by the laws of the State of California. Any legal action brought under this Agreement must be instituted in the Superior Court of Riverside County, State of California, in an appropriate court in that county, or in the Federal District Court in the Central District of California. Pagel~ofl6 __.~.,~...~..__.w.w..._. _ ~_v..._.~__....~..W_....~._~._~.~._~.....__ti...__...u._..._.~.~...~~._~_w._w.._.w._..-._-___-, page ~ .._.~....~,...v.._~w_~~.._~.~.....WW~..~.~.~_~~....~._.. Section 4.11. ,,,,Attorney's Fees. In the event that any action or suit is instituted by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorney's fees. Section 4,12. w~, Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, ar the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such part's rights to insist and demand strict compliance by the other party with the terms of this Agreement. Section 4.1.3. Severability. The invalidity, in whale or in part, of any provision of this Agreement shall not affect the validity ar enforceability of any other of its provisions. IN WITNESS ~VI~EREOF, the parties have executed this Agreement a.s of the respective date set forth below. Dated: , 2012 Dated: , Zo 12 ~"Effective Date"} "CITY" "DEVELOPER" CITY OF LAi~E ELSINORE, MC1ViILLP~ SDIVIER.LY LLC, a Delaware a California municipal corporation limited liability company ~"Developer") By: NIclillin deal Estate Services, L. P., a California limited partnership By~ Brian Tisdale, IVlayar Its: Administrative Manager By: ~ICNI Deal Estate Group, Inc., a California corporation ATTEST: Its: General Partner By• By. ts: Virginia J. Bloom, City Clerk By• Its: LEIBOLD McCLENDON & IV~NN, P.C. By• Barbara Leibold, City Attorney Page Page 14 of 16 Dated: , 2012 1VICIVIILLI~~ REAL ESTATE SERVICES, L. P., a California limited partnership ("Developer") Its: Administrative 1Vlanager By: N1C~'1 Real Estate Group, Inc., a California corporation Its: General Partner By• Its: FP;IED~L~~,N STROFFE & GERA~tD, P.C. By James D. Stroffe, Esq., Attorney for Developer page Page 15 of 1 b ~ ~ ...._~.~.~..~.w~w_..._._.___.._.Y.._.~.ti __~....~.._w..._.~.~~.w~.~_w.w ~w..~..~._.._ Exhibit "A" - Form of Quit Maim Deed ~~'o Be Inserted In Form Approved By City Attorney Exhibit "B" Schedule of Performance and Phasing (To Be Inserted Consistent with Conceptual Park Design and Phasing attached to Staff Report} Exhibit "C" Conceptual Park Design (I'o Be Inserted Consistent with Conceptual Park Design and Phasing attached to Staff Report) Exhibit "D" Form Right of Entry Agreement ~~'o Be Inserted In Form Approved By City Attorney) . Page ..~.._...._._...M....... n Page 1.6_.of _.16..__ _ ~.._.~._ti~_.~._~.... _._...~.v.__~-__._~..~..