Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
DRAFT- DDA McMillin Summerly LLC
DRAFT 03/02/2011 AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT by and among THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE "Agency," MCMILLIN SUMMERLY LLC "Developer," and CIVIC PARTNERS - ELSINORE LLC "Master Developer" Clean Anmd Restd DDA - LMM comments Draft 030211 - AGGNDA.doc TABLE OF CONTENTS Page 100. DEFINITIONS .................................................................................... ..............................2 200. GENERAL PROVISIONS ................................................................ .............................23 201. Purpose of Agreement ............................................................ .............................23 202. Consent to Assignment .......................................................... .............................24 203. Payment of Agency Costs ...................................................... .............................24 204. Representations and Warranties ............................................. .............................25 502. 204.1 Agency's Representations and Warranties ................ .............................25 204.2 Developer's Representations and Warranties ............ .............................26 204.3 Master Developer's Representations and Warranties .............................28 205. Restrictions on Changes in Ownership, Management, and Control of Developer and Master Developer; Assignment and Assumption 503. Agreements; Release of Assignor .......................................... .............................29 504. 205.1 Conditions of Consent ................................................ .............................29 505. 205.2 Permitted Transfers .................................................... .............................29 506. 205.3 Mechanics of Consent ................................................ .............................31 206. Agency Obligations to Disburse Tax Increment .................... .............................32 300. INTENTIONALLY OMITTED ........................................................ .............................32 400. PROPERTIES SUBJECT TO THIS AGREEMENT 401. Implementation of Stadium Parking Replacement Plan ........ .............................32 402. Master Developer Designated as Master Developer of Balance of SpecificPlan Area .................................................................. .............................34 403. Other Publicly -Owned Properties .......................................... .............................35 404. Master Developer's Acquisition of Other Properties in Specific Plan Areafrom Third Parties ......................................................... .............................36 500. DEVELOPMENT OF THE PROJECT ............................................. .............................36 501. Scope of Development ........................................................... .............................36 501.1 General Scope of Development; Project .................... .............................36 501.2 Project on the Developer Property; Phases ................ .............................37 501.3 Master Developer Property; Phases ........................... .............................41 502. Affordable Housing ............................................................... .............................45 502.1 Exclusion from Project .............................................. .............................45 502.2 Requirements ............................................................. .............................45 502.3 Submission of Affordable Housing Project Proposal .............................46 502.4 Cooperation ................................................................ .............................46 503. Extensions of Time ................................................................ .............................47 504. General ................................................................................... .............................47 505. Land Use and Development Entitlements, Permits, and Approvals ...................47 506. Cost of Development ............................................................. .............................47 507. Insurance Requirements ......................................................... .............................48 Clean Amid Restd DDA - LMM comments Draft 030211 - AGGNDA.doc -i- Page 508. Rights of Access .................................................................... .............................48 509. Compliance With Laws; Indemnity; Waiver ......................... .............................49 510. Developer's and Master Developer's Obligations with Respect to Hazardous or Toxic Substances or Materials ....................... ............................... 50 603. 510.1 Duty to Prevent Hazardous Materials Contamination ............................50 510.2 Environmental Inquiries ............................................. .............................51 511. Release of Project Development Covenants .......................... .............................52 512. Estoppels ................................................................................ .............................52 600. FINANCIAL PROVISIONS ............................................................. .............................53 601. Agency Payment to Developer of Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and Agency Payment to Master Developer of Unrestricted Portion of the 63 605. Master Developer's Share of the Master Developer Property Tax Revenues.............................................................................. ............................... 53 606. 601.1 Accrual of Amounts Payable to Developer ............. ............................... 53 601.2 Accrual of Amounts Payable to Master Developer; Master 607. Developer Payment Cap ............................................ .............................54 602. Reporting and Payment of Developer's Share of the Developer 609. Property Tax Revenues and Master Developer's Share of the Master Developer Property Tax Revenues ........................................ .............................55 602.1 Reporting of Developer's Share of the Developer Property Tax Revenues and Master Developer's Share of the Master Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doe —ii- Developer Property Tax Revenues ............................ .............................55 602.2 Payment of Developer's Share of the Developer Property Tax Revenues and Master Developer's Share of the Master Developer Property Tax Revenues .......................... ............................... 57 603. Pledge of Affordable Housing Portion of Developer's and Master Developer's share of the Developer and Master Developer Property Tax Revenues; Reimbursable Affordable Housing Costs ..... .............................58 604. Reimbursement of Extraordinary Infrastructure Costs .......... .............................60 604.1 Calculation of Extraordinary Infrastructure Costs.... . .............................60 604.2 Reimbursement of Extraordinary Infrastructure Costs ...........................62 604.3 Extraordinary Infrastructure Reimbursement Cap ..... .............................62 604.4 Indemnification ........................................................ ............................... 63 605. Priority of Payments Between Developer and Master Developer; Accrued and Unpaid Obligations ........................................... .............................63 606. Pledge of Tax Revenues; Miscellaneous Agency Financial Covenants to Protect Developer's and Master Developer's Security ...... .............................64 607. Tax Allocation Bond Sales .................................................... .............................67 608. Mello -Roos and Assessment District Financing .................... .............................68 609. Indemnity of City and Agency for Conflicting Claims Between Developer and Master Developer .......................................... .............................69 Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doe —ii- Page 700. USE, MAINTENANCE, AND NON - DISCRIMINATION COVENANTS AND RESTRICTIONS APPLICABLE TO THE DEVELOPER PROPERTY AND MASTER DEVELOPER PROPERTY .................................... .............................69 701. Use of the Developer Property and Master Developer Property ........................ 69 702. Maintenance of the Developer Property and Master Developer Property................................................................................ ............................... 69 703. Obligation to Refrain from Discrimination ............................ .............................70 704. Form of Non - Discrimination and Nonsegregation Clauses . ............................... 70 705. Effect and Enforcement of Use, Maintenance, and Non - Discrimination of Covenants and Restrictions ............................................... .............................72 800. DEFAULTS, REMEDIES, AND TERMINATION .......................... .............................72 801. Defaults - General; Limitation on Remedies ......................... .............................72 801.1 Defaults - General ...................................................... .............................72 801.2 Reporting .................................................................... .............................74 801.3 Limitation on Damages and Liability ........................ .............................74 802. Legal Actions ......................................................................... .............................74 802.1 Institution of Legal Actions ....................................... .............................74 802.2 Applicable Law .......................................................... .............................74 802.3 Acceptance of Service of Process ............................ ............................... 75 803. Rights and Remedies are Cumulative .................................... .............................75 804. Inaction Not a Waiver of Default ........................................... .............................75 805. Attorney's Fees ...................................................................... .............................75 806. No Cross - Defaults .................................................................. .............................76 807. Termination ............................................................................ .............................76 807.1 As to the Developer Property ................................... ............................... 76 807.2 As to the Master Developer Property ....................... ............................... 77 807.3 Notice of Termination ................................................ .............................77 807.4 Intentionally Omitted ................................................. .............................77 808. Effect of Termination on Tax Revenues .............................. ............................... 77 808.1 As to Developer ......................................................... .............................77 808.2 As to Master Developer ........................................... ............................... 78 809. Arbitration of Certain Disputes ............................................ ............................... 78 900. GENERAL PROVISIONS ................................................................ .............................79 901. Notices, Demands, and Communications Among the Parties ............................79 902. Nonliability of City and Agency Officials and Employees; Conflicts of Interest.................................................................................. ............................... 81 903. Time is of the Essence; Force Majeure Delays; Extension of Times of Performance......................................................................... ............................... 82 904. Interpretation ........................................................................ ............................... 83 905. Entire Agreement; Waivers and Amendments .................... ............................... 83 906. Consents; Reasonableness; Form of Notice Requesting Approval if Failure to Timely Respond Deemed an Approval ............... ............................... 83 907. Execution ............................................................................... .............................84 908. No Third Party Beneficiaries ................................................. .............................84 Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -iii- Page 909. Severability ............................................................................ .............................84 910. Amendment and Restatement of 2002 DDA ....................... ............................... 84 911. Amendment of Redevelopment Plans .................................. ............................... 85 912. Tax Consequences ................................................................. .............................85 Clean Anmd Restd DDA - LMM cone nests Draft 030211 - AGENDA.doc —iv- ATTACHMENTS ATTACHMENT 1 BACKBONE INFRASTRUCTURE SCOPE OF WORK ATTACHMENT 2 DESCRIPTION OF DEVELOPER PROPERTY AS OF AGREEMENT DATE ATTACHMENT 3 DESCRIPTION OF MASTER DEVELOPER PROPERTY AS OF AGREEMENT DATE ATTACHMENT 4 NOTICE OF ACQUISITION OF PROPERTY ATTACHMENT 5 NOTICE OF COMMENCEMENT ATTACHMENT 6 NOTICE OF COMPLETION ATTACHMENT 7 MAP DEPICTING LOCATION OF AGENCY -OWNED PROPERTIES IN SPECIFIC PLAN AREA AS OF AGREEMENT DATE ATTACHMENT 8 PHASE MAP ATTACHMENT 9 PHASE 1 SCOPE OF WORK ATTACHMENT 10 RELEASE OF PROJECT DEVELOPMENT COVENANTS ATTACHMENT 11 SCHEDULE OF PHASE DEVELOPMENT ATTACHMENT 12 SPECIFIC PLAN AREA MAP ATTACHMENT 13 LEGAL DESCRIPTION OF STADIUM ATTACHMENT 14 LEGAL DESCRIPTION OF STADIUM PARKING LOT ATTACHMENT 15 CONSENT TO TRANSFER AGREEMENT AND RELEASE ATTACHMENT 16 LEGAL DESCRIPTION OF TRACT NOS. 31920 -1 THROUGH 31920 -6 ATTACHMENT 17 NOTICE OF RIGHT TO COMMENCE ATTACHMENT 18 PROJECT PHASING AND EXTENSION SCHEDULE (EXAMPLE) ATTACHMENT 19 STATEMENT OF DEVELOPER'S EXTRAORDINARY INFRASTRUCTURE COSTS ATTACHMENT 20 IMPLEMENTING MATRIX Clean Anwd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —V AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement ") is entered into as of March , 2011 (the "Agreement Date "), by and among the REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a public body, corporate and politic ( "Agency "), MCMILLIN SUMMERLY , LLC, a Delaware limited liability company ( "Developer "), and CIVIC PARTNERS - ELSINORE LLC, a California limited liability company ( "Master Developer "). RECITALS The following Recitals are a substantive part of this Agreement: A. Agency is a public body corporate and politic, exercising governmental functions and powers and organized and existing under the Redevelopment Law. Agency desires to implement its Rancho Laguna Project Area II Redevelopment Plan and its Rancho Laguna Project Area III Redevelopment Plan by providing for development of the Project on the Specific Plan Area included therein, all in accordance with said Redevelopment Plans and the Redevelopment Law. B. Developer and Master Developer are both limited liability companies organized and existing under the laws of Delaware and California, respectively. C. On or about December 26, 2002, Agency, Master Developer and Laing -CP Lake Elsinore, LLC ( "Original Developer ") entered into a Disposition and Development Agreement ( "2002 DDA ") with Agency. In connection with the performance of its obligations under the 2002 DDA, Original Developer acquired the Developer Property, including the Agency Property and the Stadium Parking Lot, and with the consent of the Agency's Executive Director, Original Developer entered into two loan agreements with LaSalle Bank, each of which included, among other things, the granting of a real property security interest in portions of the Developer Property and the assignment of Original Developer's interest in the 2002 DDA to LaSalle Bank as additional security for the performance of Original Developer's obligations under the loan agreements. D. Bank of America, N.A., a national banking association ( "Bank of America "), as successor in interest to LaSalle Bank, declared a default under the loan agreements and initiated a unified foreclosure of the deeds of trust and personal property security agreements executed by Original Developer pursuant to the loan agreements. Separate non judicial foreclosure sales were completed in July 2009 and September 2009 pursuant to which, respectively, Bank of America and (CA) Malaga/Mission Residential Syndicated Properties, LLC, a California limited liability company ( "Malaga ") became the owners of portions of the Developer Property and all of the right, title and interest of Original Developer under the 2002 DDA. Bank of America and Malaga are collectively referred to herein as "Bank ". E. On or about November 10, 2009 Agency notified Original Developer, Bank and Master Developer of alleged defaults by Original Developer under the 2002 DDA. Bank, as successor in interest to Original Developer, and Master Developer disputed Agency's notice of default. Master Developer submitted a cure plan pursuant to Section 801 of the 2002 DDA. Consequently, Bank, Master Developer, Developer and Agency engaged in negotiations to resolve various disputes regarding the 2002 DDA. F. Developer and Bank entered into certain purchase and sale agreements pursuant to which Bank, as successor in interest to Original Developer, agreed to transfer all of the Developer Property and all of the right, title and interest of Original Developer in and to the 2002 DDA to Developer. In June 2010, Developer acquired the Developer Property and all of the right, title and interest of Original Developer in and to the 2002 DDA from the Bank. G. The Parties desire to enter into this Agreement to (i) resolve their disputes concerning Agency's 2009 notice of default and clarify certain rights and obligations of the parties under the 2002 DDA in a manner that will benefit the Agency and the City and facilitate responsible development and completion of the Project in the Specific Plan Area; (ii) document the implementation of the 2002 DDA and resolve ambiguities identified in the 2002 DDA; (iii) clarify the intent of the 2002 DDA; and (iv) document changes agreed to by the Parties regarding the future implementation and performance of the 2002 DDA, as amended hereby. H. Developer has represented to Agency that Developer has a valid and enforceable assignment of the 2002 DDA from Bank, is qualified to develop the remaining portions of the Project to be developed on the Developer Property, and to perform all of Developer's obligations set forth in this Agreement, subject to the terms and conditions set forth herein. Master Developer has represented to Agency that Master Developer is qualified to acquire the Master Developer Property, to develop the portion of the Project to be developed thereon, and to perform all of the Master Developer's obligations set forth in this Agreement, subject to the terms and conditions set forth herein. AGREEMENT: Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by all of the Parties, Agency, Developer, and Master Developer hereby agree as follows: 100. DEFINITIONS The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary: 112002 DDA Effective Date" means December 26, 2002. "Accrued Housing Fund Deficit" means the accrued and unfunded debt of the Agency to the Agency's Low and Moderate Income Housing Fund which is deemed for purposes of this Agreement to be Nine Million Seven Hundred Eighteen Thousand Eight Hundred Thirty Two Clean Anmd Restd DDA - LMM comments Draft 030211 - AGHNDA.doc _2 Dollars ($9,718,832) as of the end of Agency's 2001 -2002 Fiscal Year, and thereafter existing from time to time as reported by Agency to Developer and Master Developer on the Annual TI Reports. "Accrued Tax Increment Revenues" means the amount of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues, the Unrestricted Portion of Master Developer's Share of the Master Developer Property Tax Revenues and the Unrestricted Portion of the Specific Plan Area Tax Revenues generated from the Developer Property, the Master Developer Property and the Specific Plan Area (1) commencing: (a) with respect to Developer Property and Master Developer Property, on the date Original Developer (with respect to the Developer Property) and Master Developer (with respect to the Master Developer Property) (including any Affiliate of Developer and Master Developer or any successor or assignee of any of them) acquired or acquires title to said property, and (b) with respect to the Specific Plan Area, on the 2002 DDA Effective Date, and (2) continuing: (a) with respect to each parcel or lot comprising Phase 1 and Phases A through G of the Project on the Developer Property as described in Section 501.2, until the earlier of (i) the date Agency issues its Release of Project Development Covenants for such Phase, or (ii) the date on which Agency receives the net proceeds from the sale of Bonds pursuant to Section 607 of this Agreement, or (iii) the effective date of any termination of this Agreement with respect to any Phase of the Project on the Developer Property, and (b) with respect to the Master Developer Property, until the earlier of (i) the date Agency issues its Release of Project Development Covenants for the first Phase of the portion of the Project to be developed on the Master Developer Property as provided in Section 501.3(a), or (ii) the date on which Agency receives the net proceeds from the sale of Bonds pursuant to Section 607 of this Agreement, but in no event earlier than the date Agency's Executive Director shall have approved any Statement of Master Developer's Costs, and (c) with respect to the Specific Plan Area, until the later of (i) the date on which Agency's Executive Director shall have approved any Statement of Developer's Extraordinary Infrastructure Costs, or (ii) the date Agency issues its Release of Project Development Covenants for Phase 1 of the Project to be developed on the Developer Property. "Affiliate of Developer" means any of the members of McMillin Summerly LLC as of the Agreement Date and any of the following: (a) any person or entity that individually or collectively (i) directly or indirectly owns a minimum of fifty percent (50 %) of the beneficial interest of McMillin Summerly LLC or either of the members of McMillin Summerly LLC as of the Agreement Date and that possesses management control of McMillin Summerly LLC or such member(s); or (ii) is a wholly owned subsidiary of McMillin Summerly LLC or Civic Partners - Elsinore LLC; or (iii) is an entity in which either of the members of McMillin Summerly LLC as of the Agreement Date or McMillin Summerly LLC owns a minimum of fifty percent (50 %) of the beneficial interest and in which McMillin Summerly LLC or such member(s) possesses Clean Amnd Restd DDA - LM comments Draft 030211 - AGENDA.doc —3— management control; or (b) any entity in which Steven P. Semingson owns a minimum of fifty percent (50 %) of the beneficial interest and possesses management control. "Affiliate of Master Developer" means (a) any person or entity that individually or collectively, directly or indirectly, controls, is controlled by or is under common control with Civic Partners - Elsinore, LLC, (b) the Semingson Family Trust, and (c) any entity in which Steven P. Semingson or the Semingson Family Trust, directly or indirectly, owns a minimum of ten percent (10 %) of the economic interest. Affiliate of Master Developer specifically includes, without limitation, Liberty Founders, LLC, CP Diamond, LLC, JIC -CP Diamond, LLC, and Civic Partners Idaho, LLC. "Affordable Housing" means housing units in the City of Lake Elsinore that are made available at affordable housing cost to low- and moderate - income households in accordance with applicable provisions of the Redevelopment Law and that contribute to satisfying Agency's obligations under Section 33413(b) of the Redevelopment Law. "Affordable Housing Portion of the Developer's Share of the Developer Property Tax Revenues" means, with respect to any Fiscal Year, the same percentage (currently 20 %) of the Developer's Share of the Developer Property Tax Revenues as the percentage of the total portion of the Tax Revenues from all of Agency's Project Areas that Agency is required pursuant to Section 33334.2 of the Redevelopment Law to set aside and use for the purposes of increasing, improving, and preserving the community's supply of low- and moderate - income housing available at affordable housing cost. It is understood that the calculation of the Affordable Housing Portion of the Developer's Share of the Developer Property Tax Revenues shall not be reduced in a Fiscal Year merely because Agency's Accrued Housing Fund Deficit may increase in that year. "Affordable Housing Portion of the Master Developer's Share of the Master Developer Property Tax Revenues" means, with respect to any Fiscal Year, the same percentage (currently 20 %) of the Master Developer's Share of the Master Developer Property Tax Revenues as the percentage of the total portion of the Tax Revenues from all of Agency's Project Areas that Agency is required pursuant to Section 33334.2 of the Redevelopment Law to set aside and use for the purposes of increasing, improving, and preserving the community's supply of low- and moderate - income housing available at affordable housing cost. It is understood that the calculation of the Affordable Housing Portion of the Master Developer's Share of the Developer Property Tax Revenues shall not be reduced in any Fiscal Year merely because Agency's Accrued Housing Fund Deficit may increase in that year. "Affordable Housing Portion of the Specific Plan Area Tax Revenues" means, with respect to any Fiscal Year, the same percentage (currently 20 %) of the Specific Plan Area Tax Revenues as the percentage of the total portion of the Tax Revenues from all of Agency's Project Areas that Agency is required pursuant to Section 33334.2 of the Redevelopment Law to set aside and use for the purposes of increasing, improving, and preserving the community's supply of low- and moderate - income housing available at affordable housing cost. It is understood that the calculation of the Affordable Housing Portion of the Specific Plan Area Tax Revenues shall not be reduced in any Fiscal Year merely because Agency's Accrued Housing Fund Deficit may increase in that year. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGBNDA.doc -4 "Affordable Housing Project Proposal" means a financing proposal submitted to Agency in connection with the development of Affordable Housing by Master Developer on the basis of which Master Developer will request an allocation of funds from Agency's Low and Moderate Income Housing Fund. The Affordable Housing Project Proposal will include, but not be limited to, the following: (i) the type of Affordable Housing (e.g., new construction, acquisition /rehabilitation, etc.), (ii) whether the Affordable Housing project will be for -rent or for -sale to income restricted residents, (iii) the total number of units within the proposed project, (iv) the number of units available solely to income restricted residents, (v) the proposed income restrictions for the Affordable Housing units, (vi) the term of affordability covenants consistent with section 33413(b)(2) of the Redevelopment Law, (vii) the location of the project, (viii) the estimated project development and /or acquisition and rehabilitation costs, (ix) the expected timing and phasing of development or acquisition and occupancy of the project, (x) anticipated sources of funding sought and secured for the project and a calculation of any projected shortfall in funding, (xi) the identity and qualifications of the Affordable Housing developer, and (xii) if such shortfall in available funding exceeds 50% of the costs of the project, an explanation of the basis for seeking Reimbursable Affordable Housing Costs in excess of 50% of the actual and reasonable direct and indirect costs incurred by Master Developer and substantial evidence that the Master Developer has tried to secure additional financing to lower such shortfall below 50% and has not been successful. In the instance described in (xii) above, such evidence shall be sufficient to enable the Agency to make the required findings as set forth in Section 33334.30) of the Redevelopment Law. "Agency" means the Redevelopment Agency of the City of Lake Elsinore, a public body, corporate and politic. The term "Agency" as used herein also includes any assignee of, or successor to, the rights, powers, and responsibilities of the Redevelopment Agency of the City of Lake Elsinore. "Agency Property" means that portion of the Specific Plan Area consisting of approximately eighty -nine and eight one - hundredths (89.08) acres of land area which was acquired by Original Developer pursuant to the 2002 DDA. The Agency Property is more particularly described in Attachment 2A to the 2002 DDA. "Agency's Annual Operating Costs" means the following actual and reasonable Agency expenditures (excluding expenditures from the Agency's Low and Moderate Income Housing Fund) during a Fiscal Year: (i) Board fees; (ii) dues; (iii) legal fees; (iv) maintenance and operation costs for the Stadium; and (v) professional service costs for the Agency's annual audit; provided, however, that the aggregate Agency operating expenditures shall not exceed the sum of $688,300 subject to an annual adjustment in accordance with increases (but not decreases) in CPI for each Fiscal Year commencing with the 2003/2004 Fiscal Year. "Agreement" means this Amended and Restated Disposition and Development Agreement by and among Agency, Developer, and Master Developer, including all of the Attachments hereto, as the same may be amended in writing from time to time in accordance with the procedures set forth herein. "Agreement Date" means the date first set forth above, which is the date this Agreement is executed by Agency and the date this Agreement is deemed to be effective. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -5 "Annual TI Statement" is defined in Section 602. "Authority" means the Lake Elsinore Public Financing Authority, a joint powers agency formed pursuant to California Government Code Sections 6500 et sec ., in which the City and Agency are members. "Backbone Infrastructure Scope of Work" with respect to a Phase of the Project means (a) the backbone roads providing ingress and egress access to such Phase, including curbs, gutters and median dividers, if any, as required on the approved street improvement plans for the Phase and (b) the improvements required to be constructed within the right -of -way for such backbone roads, but excluding (i) sidewalks, landscaping and irrigation improvements provided such items are bonded or other adequate security has been provided in accordance with City requirements by Developer or Master Developer, and (ii) in -tract street improvements. With respect to the portion of the Project on the Developer Property, the Backbone Infrastructure Scope of Work is set forth on Attachment 1 depicting cross - sections of Diamond Drive, Hidden Trail, Summerly Place and Village Parkway. With respect to the portion of the Project on the Master Developer Property, the Backbone Infrastructure Scope of Work shall be agreed upon at the Pre - Commencement Meeting held for such Phase of the Project. "Bank" is defined in Recital D. "Base Year" means Agency's 2002 -2003 fiscal year (i.e., July 1, 2002, through June 30, 2003). "Bonds" means bonds within the meaning of Section 33641 of the Redevelopment Law as defined in Section 607 of this Agreement. "City" means the City of Lake Elsinore, a municipal corporation, organized and existing under the laws of the State of California and having its offices at 130 South Main Street, Lake Elsinore, California 92530. "City Reimbursement Agreement" means that certain "Agreement Regarding Advances" dated as of July 1, 2000, entered into by and between Agency and the City pursuant to which Agency is obligated to reimburse the City for funds advanced by the City to or for the benefit of Agency to assist Agency in implementing its Redevelopment Plans. "City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues" means commencing in the ninth (9th) full fiscal year following the fiscal year in which the recordation of the Release of Development Covenants with respect to the Phase 1 Scope of Work occurs, an amount equal to fifteen percent (15 %) of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues paid to Developer. Provided, however, that Accrued Tax Increment Revenues with respect to the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues as of the Agreement Date shall be excluded in calculating City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues. Provided further, that Accrued Tax Increment Revenues with respect to the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues relating to Phase I after the Agreement Date until the ninth (9th) full fiscal year following the fiscal year in which the recordation of the Release of Development Clean Amid Restd DDA - LMM cornments Draft 030211 - AGGNDA.doc —6 Covenants with respect to the Phase 1 Scope of Work occurs shall be excluded in calculating City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues. "City's Share of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues" means commencing in the ninth (9t") full fiscal year following the fiscal year in which the recordation of the Release of Development Covenants with respect to the Phase 1 Scope of Work occurs, an amount equal to fifteen percent (15 %) of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues paid to Master Developer but specifically excluding any portion of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues paid to Master Developer from any parcel or lot located within the boundaries of the Diamond Specific Plan 2009 -01 approved by the City Council of the City of Lake Elsinore on July 13, 2010 by Ordinance No. CC- 2010 -1278. "Claims" is defined in Section 509. "Closing" or "Close of Escrow" means the closing of the applicable Escrow for conveyance of the property or properties to be conveyed by Agency to Developer or Master Developer hereunder. "Commencement" when used in connection with a Phase means the date indicated as the "Commencement Date" on the Notice of Commencement, which shall document the beginning date of a Phase for purposes of this Agreement, provided that Commencement shall not be deemed to occur until a Notice of Commencement has been delivered by Developer or Master Developer to Agency, regardless of whether all or any part of the Phase Scope of Work has been previously performed, including without limitation, any of the Backbone Infrastructure Scope of Work pertaining to the school site. "Completion of Development" when used in connection with a Phase means the "Date of Substantial Completion" of the Phase Scope of Work as indicated on a Notice of Completion submitted by Developer and approved by Agency in accordance with Section 501.2(c). "Consent to Transfer Agreement and Release" means an agreement substantially in the form of Attachment 15. "County" means the County of Riverside, California. "CPI" means the annual percentage increase in "CPI -W" based upon the monthly index for the date closest to the date being measured published by the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for Urban Wage Earners and Clerical Workers, Los Angeles- Riverside - Orange County, Sub -group "All Items (1982 -1984 = 100)," or, if said index is not published or is not available to the Parties, the most closely comparable index to said index. If CPI for any annual period is negative, then, for purposes of this Agreement only, CPI shall be considered zero (0) for that annual period. "CSC" means CSC Golf Management, a California corporation. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —7— "Developer" means McMillin Summerly LLC, a Delaware limited liability company. The members of Developer as of the Agreement Date are McMillin Growth Summerly, LLC, a Delaware limited liability company, and Civic Partners - Elsinore, LLC, a California limited liability company. The term "Developer" as used herein also includes any legally permissible assignee of or successor to the rights, powers, and responsibilities of McMillin Summerly LLC under this Agreement, consistent with the provisions set forth in Section 205. "Developer Property" means the portions of the Specific Plan Area that are described in Attachment 2 to this Agreement. For purposes of this Agreement, such portions of the Specific Plan Area will not lose their characterization as Developer Property after they are subsequently transferred or sold. Notwithstanding the foregoing, the Stadium Parking Lot shall be excluded from Developer Property. "Developer Property Base Year Tax Revenues" for the Agency Property and the Stadium Parking Lot means the total amount of Tax Revenues that was generated from each such property in the last Fiscal Year prior to the Fiscal Year in which Agency acquired said properties, and with such amounts increased for each property at the rate of two percent (2 %) per year for each subsequent year to and including the Base Year hereunder. "Developer Property Base Year Tax Revenues" for any other parcel or lot within the Specific Plan Area that satisfies the definition of "Developer Property" from time to time means (i) the total amount of Tax Revenues that was generated from that parcel or lot in the Base Year less (ii) the Pass - Through Portion of the Developer Property Tax Revenues in the Base Year, with the understanding that if said parcel or lot had a different size or configuration in the Base Year than in the year in which such calculation is being made the Developer Property Base Year Tax Revenues for said parcel or lot in the Base Year shall be calculated by multiplying the gross land area (in square feet) of said parcel or lot in the year in which the calculation is made times the Developer Property Base Year Tax Revenues per square foot of gross land area of the parcel or parcels of which such parcel or lot was a part in the Base Year. Notwithstanding the foregoing, the Developer Property Base Year Tax Revenues shall be deemed to be Zero Dollars ($0.00) for any portion of the Developer Property (including without limitation the Agency Property and the Stadium Parking Lot, as applicable) during any period of time that such portion of the Developer Property is exempt from property taxation. "Developer Property Tax Revenues" means, with respect to a particular Fiscal Year, the total amount of Tax Revenues generated in said Fiscal Year from the Developer Property. Except for the transfer of the Stadium Parking Lot to Master Developer, Developer Property Tax Revenues will not lose their characterization as such after the portion of the Developer Property from which they are derived is transferred or sold by Developer (including any Affiliate of Developer or any permitted assignee of or successor to any of them). It is understood that Developer Property Tax Revenues include increases in the amount of Tax Revenues generated from the affected parcels or lots subsequent to the time of Developer's (or such Affiliates', assignees', or successors') ownership thereof, whether due to new construction, changes in ownership, inflationary adjustments to the assessed valuation of property, or any other causes. "Developer's Share of the Developer Property Tax Revenues" means, with respect to a particular Fiscal Year, the remainder derived by subtracting (i) the Developer Property Base Year Tax Revenues from (ii) the Developer Property Tax Revenues generated in that Fiscal Clean Aimrd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —g Year; provided that in no event shall the Developer's Share of the Developer Property Tax Revenues be less than zero. The Developer's Share of the Developer Property Tax Revenues consists of (i) the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and (ii) the Affordable Housing Portion of the Developer's Share of the Developer Property Tax Revenues. "Environmental Law" means any federal, state, or local statute, law, ordinance, regulation, rule, official policy, judgment, consent decree, common law doctrine, license, permit, or other governmental authorization or approval regulating, prescribing standards for, or otherwise relating to Hazardous or Toxic Substances or Materials. "Escrow Agent" means such escrow company as may be mutually approved in writing by Agency and Master Developer. "Excess Affordable Housing Costs" is defined in Section 603 of this Agreement. "Extraordinary Infrastructure Costs" means those costs equal to the total of all of the actual and reasonable direct and indirect costs incurred by Developer (including any predecessor of Developer, Affiliate of Developer or any permitted assignee of or successor to any of them) to acquire the land for and to plan, design, engineer, Finance, satisfy Governmental Requirements, obtain governmental permits and approvals, construct, supervise, inspect, and pay for the following public improvements in conjunction with Developer's acquisition and /or development of any portion of the Developer Property: (i) habitat mitigation areas; (ii) the Golf Course; (iii) active and passive parks and open space areas that are open to public use; (iv) public schools; (v) fire stations; (vi) libraries; and (vii) in addition to the items referred to in clauses (i) -(vi), all other on- and off -site public improvements and facilities which will benefit portions of the Specific Plan Area beyond the Developer Property. The term "Extraordinary Infrastructure Costs" shall also include all of the actual and reasonable direct and indirect costs incurred by Developer (including any predecessor of Developer, Affiliate of Developer or any permitted assignee of or successor to any of them) over and above Developer's fair share contribution (based on the estimated percentage of use by the Developer Property relative to the estimated total usage at build -out) with respect to the construction and installation of arterial and collector streets and utilities (water, sewer, and storm drain) in order to benefit or service properties beyond the Developer Property. The amount of Extraordinary Infrastructure Costs shall include a development management fee in the amount of four percent (4 %) of the actual and reasonable "hard cost" of constructing /installing the improvements described in the first sentence of this paragraph and four percent (4 %) of the portion of said "hard costs" that is in excess of Developer's fair share contribution to the cost for the street and utility improvements described in the second sentence of this paragraph, as applicable. Notwithstanding the foregoing, the term "Extraordinary Infrastructure Costs" shall not include costs voluntarily incurred by Developer (including any predecessor of Developer, Affiliate of Developer or any permitted assignee of or successor to any of them) with respect to infrastructure improvements that are not required pursuant to applicable Governmental Requirements. The amount of Extraordinary Infrastructure Costs shall be determined and paid in accordance with Section 604 of this Agreement. "Extraordinary Infrastructure Reimbursement Cap" is defined in Section 604.3 of this Agreement. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGGNDA.doc —9 "Finance" means the "weighted- average" cost of capital, including both debt and equity, which weighted average cost is agreed to be fifteen percent (15 %). The Finance factor shall be compounded annually. "First Priority Obligations" means the portion of Agency's Tax Revenues in any Fiscal Year that is required to be: (i) paid to the Taxing Agencies pursuant to the Pass - Through Agreements; plus (ii) paid to meet debt service requirements of the Senior Lien Debt; plus (iii) paid to third parties in accordance with any superseding provisions of the Redevelopment Law or other applicable statutes, including the payments Agency is required to make for Fiscal Year 2002 -2003 into the Educational Revenue Augmentation Fund and SERAF payments Agency is required to make for Fiscal Year 2009 -2010 and 2010 -2011 pursuant to AB 26 4x (provided, however, that nothing in this Agreement shall be construed as a waiver by Developer or Master Developer of their respective rights to claim priority over any amendment to the Redevelopment Law or other statute that may be enacted after the 2002 DDA Effective Date on the basis that said amendment constitutes an unconstitutional and unlawful impairment of Developer's and /or Master Developer's contractual rights, and /or a taking of its or their property rights without just compensation, and /or a denial of its or their property rights without due process of law); provided, however, that notwithstanding any other provision set forth in this Agreement to the contrary, in the event of a dispute between Agency and either Developer or Master Developer regarding whether a superseding statute requires a payment of Tax Revenues to a third party or parties, Agency shall not be deemed to be in default hereunder so long as it maintains its position reasonably and in good faith and in such event neither Developer nor Master Developer shall be entitled to recover any of their attorney's fees, arbitration fees, or other costs against Agency even if Developer and /or Master Developer ultimately is the prevailing party; plus (iv) paid to or retained by the County as its property tax administration fee pursuant to applicable provisions of law; plus (v) paid to third parties pursuant to the Prior Agreements; plus (vi) allocated by Agency to pay for Agency's Annual Operating Costs; plus (vii) commencing in the eleventh full Fiscal Year following the Fiscal Year in which the Phase 1 Completion Date occurs and in each Fiscal Year thereafter for as long as Agency payments are due and owing to Developer and /or Master Developer hereunder, one hundred percent (100 %) of the portion of Agency's Tax Revenues over and above the amount of such Tax Revenues in the tenth full Fiscal Year following the Fiscal Year in which the Phase 1 Completion Date occurs, in a total sum not to exceed Eight Hundred Thirty -Three Thousand Three Hundred Thirty -Three Dollars and Thirty -Three Cents ($833,333.33) per Fiscal Year, that Agency can elect in its discretion to apply to (a) the elimination or reduction of Agency's Accrued Housing Fund Deficit as of the end of the 2001 -2002 Fiscal Year (i.e., a total sum not to exceed Nine Million Seven Hundred Eighteen Thousand Eight Hundred Thirty -Two Dollars ($9,718,832)); or (b) the elimination or reduction of the unpaid principal balance owing by Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc _10- Agency to the City under the City Reimbursement Agreement as of the end of Agency's 2001- 2002 Fiscal Year; provided however, not less than Three Hundred Thirty -Three Thousand Three Hundred Thirty -Three Dollars and Thirty -Three Cents ($333,333.33) per Fiscal Year shall be applied to reduce the unpaid principal balance owing by Agency to the City under the City Reimbursement Agreement; and provided further that such total sum shall be subject to reduction in accordance with the provisions set forth in Section 603 herein if Master Developer incurs Excess Affordable Housing Costs. It is expressly understood that upon the payment of the Agency's Accrued Housing Fund Deficit as of the end of the 2001 -2002 Fiscal Year or the unpaid principal balance owing by Agency to the City under the City Reimbursement Agreement as of the end of Agency's 2001 -2002 Fiscal Year, the Agency's First Priority Obligations relating to these components shall be reduced by Five Hundred Thousand Dollars and no Cents ($500,000.00) and Three Hundred Thirty -Three Thousand Three Hundred Thirty -Three Dollars and Thirty -Three Cents ($333,333.33), respectively. Notwithstanding any other provision set forth in this Agreement to the contrary, in no event shall the amounts allocated to Agency's First Priority Obligations be increased or extended in the event that Agency's Accrued Housing Fund Deficit and /or the balance owing by Agency to the City under the City Reimbursement Agreement increase from and after the end of the 2001 -2002 Fiscal Year. "Fiscal Year" means the one -year period commencing July 1 and ending the following June 30. "Force Majeure" is defined in Section 903 of this Agreement. "Golf Course" means the 18 -hole regulation golf course known as the Links at Summerly, together with the practice facility, and including all landscaping, water and sand traps, and all flood storage and control infrastructure associated therewith, but excluding any above ground structural improvements not specifically related to the flood storage and control infrastructure, such as clubhouses and /or restaurants developed within the Developer Property. The Golf Course, though privately owned, is to be open for use by the public. Developer has contracted with CSC to manage the operations of the Golf Course; provided however that Developer may transfer the Golf Course and /or the operation of the Golf Course subject to the prior written approval by Agency's Executive Director of the proposed transferee's qualifications, which approval will not be unreasonably withheld, conditioned or delayed. If the proposed transferee (or its proposed managing agent) possesses qualifications comparable or superior to those of CSC, approval may not be withheld by Agency's Executive Director. "Governmental Requirements" means all applicable federal, state, and local statutes, laws, ordinances, resolutions, regulations, rules, official policies, judgments, consent decrees, common law doctrines, licenses, permits, codes and other governmental authorizations or approvals governing or relating to the performance of this Agreement. "Hazardous or Toxic Substances or Materials" means any substance or material identified by the United States Government, the State, or any agency or political subdivision of either of them as hazardous or toxic and which is included on any list of such substances published by the United States Government, the State, or such agency or political subdivision, Clean Anmd Restd DDA - LMM comments Draft 030211 - AGGNDA.doe -11- including but not limited to any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter- Presley- Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Code of Regulations, Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. § 1317), (x) defined as "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903) or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. "Implementing Matrix" means the Summerly Conditions of Approval Implementing Matrix, attached hereto as Attachment 20, as such document may be modified from time to time upon the mutual agreement of the City Manager, Developer, and Director of Public Works /City Engineer and Director of Community Development. "Indemnified Parties" is defined in Section 509. "Liberty" means Liberty Founders, LLC, a California limited liability company, whose sole member is Civic Partners - Elsinore, LLC. "Low and Moderate Income Housing Fund" means that separate Agency fund established pursuant to Sections 33334.2 of the Redevelopment Law, the moneys in which Agency is required to spend for the purposes of increasing, improving and preserving the supply of low- and moderate - income housing within the City of Lake Elsinore. "Master Developer" means Civic Partners- Elsinore LLC, a California limited liability company. The term "Master Developer" as used herein also includes any legally permissible assignee of or successor to the rights, powers, and responsibilities of Civic Partners - Elsinore LLC under this Agreement. "Master Developer Costs" means the actual, aggregate, direct and indirect costs incurred by the Master Developer from time to time (including any Affiliate of Master Developer) required to develop a Phase on the Master Developer Property, including costs incurred to acquire Master Developer Property, plan, design, engineer, Finance, satisfy Governmental Requirements, obtain governmental permits and approvals, construct, supervise, inspect, and pay for development of such Phase. Master Developer shall provide Agency with contracts, invoices, cancelled checks or other customary evidence of such costs (reasonably Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doe -12 acceptable to Agency) actually incurred. The Parties acknowledge that Developer Costs incurred to develop a Phase may include costs incurred outside the boundaries of that Phase. "Master Developer Payment Cap" means an aggregate amount equal to fifty percent (50 %) of Master Developer Costs. "Master Developer Property" means the portions of the Specific Plan Area that are acquired or owned, in whole or in part, by Master Developer or any Affiliate of Master Developer from time to time, as contemplated by this Agreement. In this regard, it is understood that for purposes of this Agreement such portions of the Specific Plan Area will not lose their characterization as Master Developer Property after they are subsequently transferred or sold. As of the Agreement Date, the Master Developer Property consists of the parcels more particularly identified on Attachment 3 to this Agreement, which attachment also reflects the date of Master Developer's acquisition of such parcels. For parcels acquired by the Master Developer or any Affiliate of Master Developer after the Agreement Date, Master Developer shall provide Agency with a "Notice of Acquisition of Property" in substantially the form of Attachment 4 to this Agreement and supporting documentation as specified therein. The portions of the Specific Plan Area identified in the Notice of Acquisition of Property shall be deemed Master Developer Property from and after the date of the first equalized assessment roll published by the County of Riverside immediately following the date of such notice, unless Agency reasonably disagrees with Master Developer's designation of the portions of the Specific Plan Area identified in the Notice of Acquisition of Property as Master Developer Property, in which case Agency shall notify Master Developer in writing within thirty (30) calendar days after the receipt of such notice and thereafter the Parties shall meet and confer in a good faith effort to resolve the dispute. In the event the Parties are unable to resolve said dispute within thirty (30) calendar days, either Party shall be entitled to submit said dispute to binding arbitration in accordance with Section 809 of this Agreement. Notwithstanding the foregoing, the Stadium Parking Lot shall be included in the definition of Master Developer Property from the date of its original acquisition by Original Developer. "Master Developer Property Base Year Tax Revenues" means, for any parcel or lot within the Specific Plan Area that satisfies the definition of "Master Developer Property" from time to time excluding only the Stadium, (i) the total amount of Tax Revenues that was generated from that parcel or lot in the Base Year less (ii) the Pass - Through Portion of the Master Developer Property Tax Revenues in the Base Year, with the understanding that if said parcel or lot had a different size or configuration in the Base Year than in the year in which such calculation is being made the Master Developer Property Base Year Tax Revenues for said parcel or lot in the Base Year shall be calculated by multiplying the gross land area (in square feet) of said parcel or lot in the year in which the calculation is made times the Master Developer Property Base Year Tax Revenues per square foot of gross land area of the parcel or parcels of which such parcel or lot was a part in the Base Year. Notwithstanding the foregoing, the Master Developer Property Base Year Tax Revenues shall be deemed to be Zero Dollars ($0.00) for any portion of the Master Developer Property during any period of time that such portion of the Master Developer Property is exempt from property taxation. "Master Developer Property Tax Revenues" means, with respect to a particular Fiscal Year, the total amount of Tax Revenues generated in said Fiscal Year from the Master Developer Clean Aumd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -13- Property. Master Developer Property Tax Revenues will not lose their characterization as such after the portion of the Master Developer Property from which they are derived is transferred or sold by Master Developer (including any Affiliate of Master Developer or any legally permissible assignee of or successor to any of them). It is understood that Master Developer Property Tax Revenues include increases in the amount of Tax Revenues generated from the affected parcels or lots subsequent to the time of Master Developer's (or such Affiliates', assignees', or successors') ownership thereof, whether due to new construction, changes in ownership, inflationary adjustments to the assessed valuation of property, or any other causes. "Master Developer's Share of the Master Developer Property Tax Revenues" means, with respect to a particular Fiscal Year, the remainder derived by subtracting (i) the Master Developer Property Base Year Tax Revenues from (ii) the Master Developer Property Tax Revenues generated in that Fiscal Year; provided that in no event shall the Master Developer's Share of the Master Developer Property Tax Revenues be less than zero. In addition, if the Stadium becomes a portion of the Master Developer Property, the Master Developer's Share of the Master Developer Property Tax Revenues for the Stadium means, with respect to a particular Fiscal Year, the remainder derived by subtracting (i) the portion of the Total Tax Revenues that would be generated from the Stadium based upon an assumed assessed valuation of Seven Million Dollars ($7,000,000.00) from (ii) the total Tax Revenues generated from the Stadium; provided that in no event shall the Master Developer's Share of the Master Developer Property Tax Revenues from the Stadium be less than zero. The Master Developer's Share of the Master Developer Property Tax Revenues consists of (i) the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues and (ii) the Affordable Housing Portion of the Master Developer's Share of the Master Developer Property Tax Revenues. "Net Available Specific Plan Area Tax Revenues" means, with respect to a particular Fiscal Year, (i) the total amount of Specific Plan Area Tax Revenues generated in said Fiscal Year less the sum of (ii) the Affordable Housing Portion of the Specific Plan Area Tax Revenues in said year and (iii) the Pass - Through Portion of the Specific Plan Area Tax Revenues in said year. "Notice" is defined in Section 901. "Notice of Commencement" means a Notice in substantially the form of Attachment 5 issued by Developer or Master Developer to Agency documenting commencement of a Phase. A Notice of Commencement must be preceded by a "Pre- Commencement Meeting" with City /Agency Staff and the issuance of a Notice of Right to Commence. "Notice of Completion" means a Notice of Completion and Request for Issuance of Release of Project Development Covenants in substantially the form of Attachment 6 issued by Developer or Master Developer to Agency upon completion of a Phase. "Notice of Right to Commence" means a Notice substantially in the form of Attachment 17 issued at the end of a Pre - Commencement meeting (or thereafter) between Developer and /or Master Developer and Agency authorizing the commencement of the Phase Scope of Work identified therein. Clean Amnd Restd DDA - LMM continents Draft 030211 - AGENDA.doc -14- "Original Developer" means Laing -CP Lake Elsinore, LLC, a California limited liability company. "Other Agency -Owned Properties" is defined in Section 403 of this Agreement. The properties meeting this definition as of the Agreement Date are more particularly described in Attachment 7 to this Agreement. "Parking Easement" is defined in Section 401(a) of this Agreement. "Party" means Agency, Developer, or Master Developer, as applicable, and "Parties" means, collectively, Agency, Developer, and Master Developer. "Pass- Through Agreements" means the following agreements with respect to the allocation and transfer of certain Tax Revenues from Project Area I, Project Area II, and Project Area III that Agency has entered into prior to the 2002 DDA Effective Date with the Taxing Agencies listed: (i) the December 27, 1983, Amended Agreement by and among the City, Agency, and the Elsinore Valley Municipal Water District for Project Areas I and II; (ii) the January 10, 1984, Cooperative Agreement by and among the City, Agency, and the Riverside County Flood Control and Water Conservation District for Project Areas I and II; (iii) the February 28, 1984, Agreement by and among the City, Agency, and the Elsinore Water District for Project Area II; (iv) the February 28, 1984, Cooperation Agreement by and among the City, Agency, and the County of Riverside for Project Area II; (v) the April 11, 1984, Cooperation Agreement by and among the City, Agency, and the Elsinore Valley Cemetery District for Project Area II; (vi) the April 11, 1984, Cooperation Agreement by and among the City, Agency, and the Lake Elsinore Recreation and Park District for Project Area II; (vii) the June 14, 1987, Cooperation Agreement by and among the City, Agency, and the Mt. San Jacinto Community College District for Project Area III; (viii) the June 14, 1987, Cooperation Agreement by and among the City, Agency, and the Elsinore Union High School District for Project Area III; (ix) the June 14, 1987, Cooperation Agreement, by and among the City, Agency, and the Lake Elsinore School District for Project Area III; (x) the June 14, 1987, Cooperation Agreement by and among the City, Agency, and the Riverside County Office of Education for Project Area III; Clean Amnd Restd DDA- LMM comments Draft 030211 - AGENDA.doc —15— (xi) the June 14, 1988, Cooperation Agreement by and among the City, Agency, and the Elsinore Recreation and Park District for Project Area III; (xii) the June 14, 1988, Amended Cooperation Agreement by and among the City, Agency, and the Elsinore Valley Municipal Water District for Project Area III; (xiii) the June 14, 1988, Cooperation Agreement by and among the City, Agency, and the Elsinore Water District for Project Area III; (xiv) the June 27, 1989, Cooperation Agreement by and among the City, Agency, and the Riverside County Flood Control and Water Conservation District for Project Area III; and (xv) the January 23, 1990, Cooperation Agreement by and among the City, Agency, and the County of Riverside for Project Area III, as said agreement was amended on or about February 8, 1994. As used herein, the term "Pass- Through Agreements" shall also include (a) the prorata share of any funds paid or retained by the County as its property tax administration fee pursuant to applicable law, and (b) any amendments to the aforedescribed existing agreements that reduce or defer the amounts or percentages of Tax Revenues currently payable to any of the Taxing Agencies that are parties to said agreements. "Pass- Through Portion of the Developer Property Tax Revenues" means, with respect to any portion of the Developer Property located in Project Area II, the same percentage of the Developer Property Tax Revenues in any Fiscal Year as the percentage of the total portion of Tax Revenues from Project Area II that are allocated to Agency pursuant to Section 33670(b) of the Redevelopment Law that Agency is required to pay (or allow the County to pay or retain) to the Taxing Agencies. "Pass- Through Portion of the Developer Property Tax Revenues" means, with respect to any portion of the Developer Property located in Project Area III, the same percentage of the Developer Property Tax Revenues in any Fiscal Year as the percentage of the total portion of Tax Revenues from Project Area III that are allocated to Agency pursuant to Section 33670(b) of the Redevelopment Law that Agency is required to pay (or allow the County to pay or retain) to the Taxing Agencies. "Pass- Through Portion of the Master Developer Property Tax Revenues" means, with respect to any portion of the Master Developer Property located in Project Area II, the same percentage of the Master Developer Property Tax Revenues in any Fiscal Year as the percentage of the total portion of Tax Revenues from Project Area II that are allocated to Agency pursuant to Section 33670(b) of the Redevelopment Law that Agency is required to pay (or allow the County to pay or retain) to the Taxing Agencies. "Pass- Through Portion of the Master Developer Property Tax Revenues" means, with respect to any portion of the Master Developer Property located in Project Area III, the same percentage of the Master Developer Property Tax Revenues in any Fiscal Year as the percentage of the total portion of Tax Revenues from Project Area III that are allocated to Agency pursuant to Section 33670(b) of the Redevelopment Law that Agency is required to pay (or allow the County to pay or retain) to the Taxing Agencies. "Pass- Through Portion of the Specific Plan Area Tax Revenues" means, with respect to any portion of the Specific Plan Area properties that are located in Project Area II, and Clean Amnd Restd DDA - LMM continents Draft 030211 - AGENDA.doc —16— excluding only the Developer Property and the Master Developer Property, the same percentage of the Specific Plan Area Tax Revenues in any Fiscal Year as the percentage of the total portion of Tax Revenues from Project Area II that are allocated to Agency pursuant to Section 33670(b) of the Redevelopment Law that Agency is required to pay (or allow the County to pay or retain) to the Taxing Agencies. "Pass- Through Portion of the Specific Plan Area Tax Revenues" means, with respect to any portion of the Specific Plan Area properties that are located in Project Area III, and excluding only the Developer Property and the Master Developer Property, the same percentage of the Specific Plan Area Tax Revenues in any Fiscal Year as the percentage of the total portion of Tax Revenues from Project Area III that are allocated to Agency pursuant to Section 33670(b) of the Redevelopment Law that Agency is required to pay (or allow the County to pay or retain) to the Taxing Agencies. "Permitted Transfers" is defined in Section 205.2. "Phase and Phases" are defined in Section 501 of this Agreement. The boundaries of each Phase of the Project on the Developer Property are set forth on the phase map included as Attachment 8 to this Agreement. "Phase 1 Completion Date" means the deadline for Completion of Development of the Phase 1 Scope of Work, which must occur, if at all, within 12 months after the Agreement Date, subject to extension as provided in Section 503. "Phase 1 Scope of Work" means the work described on Attachment 9 to this Agreement. "Phase Scope of Work" is defined as to the Developer Property in section 501.2 and as to the Master Developer Property in Section 501.3(b). "Pledged Housing Funds" is defined in Section 603. "Pre- Commencement Meeting" means a meeting between Developer or Master Developer, as applicable, and Agency and /or City staff intended to (i) identify the specific Phase of development as to which Commencement is contemplated, (ii) confirm the Phase Scope of Work required for achieving Completion of Development of such Phase, and (iii) confirm that all permits and approvals required as a condition to Commencement have been issued or will be issued upon payment of applicable permit fees. "Prior Agreements" means the following: (i) that certain Lake Elsinore Redevelopment Project Wal -Mart Shopping Center Owner Participation Agreement by and between Agency and Oak Grove Equities dated as of March 12, 1993, as clarified by the parties pursuant to that certain letter to Mr. Bob Boone from Gresham, Savage, Nolan & Tilden, LLP, dated October 6, 1998, regarding such Agreement; (ii) that certain Redevelopment Disposition and Development Agreement (Wal -Mart Project) by and between Agency and Wal -Mart Stores, Inc., dated March 12, 1993, as clarified by the parties pursuant to that certain letter to Mr. Bob Boone from Gresham, Savage, Nolan & Tilden, LLP, dated October 6, 1998, regarding such Agreement; Clean Anmd Restd DDA - LMM continents Draft 030211 - AGBNDA.doe -17 (iii) that certain Cooperative Agreement by and between Agency and Elsinore Valley Municipal Water District of Riverside County dated as March 18, 1993, relating to Amber Ridge; (iv) that certain Owner Participation Agreement (Lake Elsinore Factory Retail Outlet Project) by and between Agency and Glen Investors, Inc., dated December 26, 1989; (v) that certain Agreement to Fill and Operate Lake Elsinore by and among the City, Agency, and Elsinore Valley Municipal Water District dated December 19, 1991; (vi) that certain Joint Project Funding Agreement (Mission Trail) by and among the County of Riverside, the City, and Agency dated June 13, 2000; and (vii) that certain Settlement Agreement by and among California Bank & Trust (as the successor -in- interest to First Pacific National Bank), the City, and the Agency dated December 10, 2002, in settlement of the matter of California Bank & Trust v. City of Lake Elsinore, City of Lake Elsinore Redevelopment Agency, Camelot Property Counselors, Inc., et al., Riverside Superior Court Case No. 344190. The foregoing constitute Prior Agreements only so long as the same remain in effect and have not terminated by their express terms or by subsequent agreement of the parties thereto or otherwise. "Project" is defined in Section 501 of this Agreement. "Project Areas" shall mean the Rancho Laguna Redevelopment Project Area Nos. I, II and III. "Project Area I" means Rancho Laguna Redevelopment Project Area No. 1, as described in the Project Area I Redevelopment Plan. "Project Area II" means Rancho Laguna Redevelopment Project Area No. Il, as described in the Project Area 11 Redevelopment Plan. "Project Area III" means Rancho Laguna Redevelopment Project Area III, as described in the Project Area III Redevelopment Plan. "Project Area I Redevelopment Plan" means the redevelopment plan for Project Area I, adopted and approved by the City Council of the City by Ordinance No. 607 on September 30, 1980, and effective as of October 30, 1980, as amended by Ordinance 624, adopted July 13, 1981, and effective as of August 13, 1981, as amended by Ordinance No. 987, adopted November 22, 1994, and effective as of December 22, 1994. "Project Area II Redevelopment Plan" means the redevelopment plan for Project Area Il, adopted and approved by the City Council of the City by Ordinance No. 671 on July 11, 1983, and effective as of August 11, 1983, as amended by Ordinance No. 987, adopted November 22, 1994, and effective as of December 22, 1994. Clean Anmd Restd DDA - LMM continents Draft 030211 - AGENDA.doe —18- "Project Area III Redevelopment Plan" means the redevelopment plan for Project Area III, adopted and approved by the City Council of the City by Ordinance No. 815 on September 8, 1987, and effective as of October 8, 1987, as amended by Ordinance No. 987, adopted November 22, 1994, and effective as of December 22, 1994. "Project Phasing and Extension Table" means a table substantially in the form of Attachment 18. "Redevelopment Law" means the Community Redevelopment Law of the State (being Part 1 of Division 24 of the Health and Safety Code of the State, as amended). "Redevelopment Plans" means, collectively, the Project Area I Redevelopment Plan, the Project Area II Redevelopment Plan, and the Project Area III Redevelopment Plan. "Reimbursable Affordable Housing Costs" means the projected shortfall in feasibility or financing sought and secured for in an Affordable Housing Project Proposal that Agency approves in its discretion pursuant to the Redevelopment Law. Reimbursable Affordable Housing Costs shall be calculated based on all of the actual and reasonable direct and indirect costs incurred by Master Developer to provide or to assist the City and /or Agency in providing Affordable Housing anywhere within the City of Lake Elsinore in conjunction with the development of the Developer Property and /or the development of the Master Developer Property by Master Developer that can be funded from Agency's Low and Moderate Income Housing Fund as reasonably determined by Agency's legal counsel and approved by the Agency Board in its discretion in accordance with the Redevelopment Law. Not by way of limitation of the foregoing, if approved in accordance herewith, "Reimbursable Affordable Housing Costs" may include reasonable direct and indirect costs incurred by Master Developer to (i) acquire the land (and improvements, if applicable) for Affordable Housing, (ii) plan, design, engineer, Finance, satisfy Governmental Requirements, obtain governmental permits and approvals, construct, substantially rehabilitate, supervise, inspect, and otherwise develop the Affordable Housing, (iii) a reasonable development management fee, (iv) a reasonable developer fee, and /or (v) acquire and impose affordability covenants on existing housing units. The amount of Reimbursable Affordable Housing Costs shall be determined and funded in accordance with Section 603. "Release of Project Development Covenants" means Release(s) of Project Development Covenants substantially in the form set forth in Attachment 10. "Schedule of Phase Development" means the schedule set forth in Attachment 11 with respect to the portion of the Project on the Developer Property. "Section 404 Permit" means the new or amended permit to be obtained from the United States Army Corps of Engineers pursuant to Section 404 of the Clean Water Act of 1972 (33 U.S.C. § 1344) to allow development of the Project within portions of the Specific Plan Area as contemplated by this Agreement. "Senior Lien Debt" means, solely and exclusively, the obligations of Agency existing as of the 2002 DDA Effective Date which obligations arise out of the following specifically Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —19— identified bond issues with a total original principal balance of $76,565,000, which bond issues are payable, in whole or in part, from Tax Revenues as set forth below: (i) Authority's 1995. Series A Tax Allocation Revenue Bonds in the original principal amount of $13,345,000; Authority's (1995 Series A Refunding) 2010 Series B in the original principal amount of $10,855,000; (ii) Authority's 1999 Series A Tax Allocation Revenue Bonds in the original principal amount of $33,450,000; Authority's (1999 Series A Refunding) 2010 Series C in the original principal amount of $29,435,000; (iii) Authority's 1999 Series B Tax Allocation Revenue Bonds in the original principal amount of $580,000 (fully matured); (iv) Authority's 1999 Series C Tax Allocation Revenue Bonds in the original principal amount of $14,180,000; Authority's (1999 Series C Refunding) 2010 Series A in the original principal amount of $15,435,000; (v) Authority's 1999 Series D Tax Allocation Revenue Bonds in the original principal amount of $330,000 (fully matured); and (vi) the Lake Elsinore Recreation Authority's 1997 Series A Revenue Bonds (Public Facilities Project) in the original principal amount of $14,680,000 (with the understanding that Agency's obligations with respect to said bond issue arise out of the Amended and Restated Reimbursement Agreements between Agency and City dated as of July 1, 2000, for Project Area I, Project Area II, and Project Area III). Notwithstanding the foregoing, the term "Senior Lien Debt" shall also include that portion, but solely that portion (inclusive of a pro -rata portion of costs of issuance and any reasonably required reserves), of any obligations Agency incurs or issues after the 2002 Effective Date in order to assist the Authority or the Lake Elsinore Recreation Authority to refund or refinance the then - outstanding principal amount of the Senior Lien Debt described in items (i) through (vi) of this definition or any prior refunding or refinancing thereof; provided, however, that no such refunding or refinancing shall in any way impair or adversely affect the cash flows or the amount of the Developer's Share of the Developer Property Tax Revenues or Extraordinary Infrastructure Costs that otherwise would be available for payment to Developer or the Master Developer's Share of the Master Developer Property Tax Revenues that otherwise would be available for payment to Master Developer pursuant to this Agreement. Except to the limited extent expressly set forth above with respect to the Amended and Restated Reimbursement Agreements that were entered into by and between Agency and City with respect to the Lake Elsinore Recreation Authority's 1997 Series A Revenue Bonds and except to the limited extent expressly set forth in the definition of the term "First Priority Obligations," in no event shall Agency's obligation to pay or reimburse the City any amounts that may be owing or become owing to the City or Agency's obligation to pay, reimburse, or set aside the Accrued Housing Fund Deficit be included in the definition of First Priority Obligations or Senior Lien Debt. "SPA 6" is the amendment to the East Lake Specific Plan initially approved by the City Council of the City on June 8, 1993, by Ordinance No. 956 pursuant to California Government Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —20 Code Section 65450 et seq., which Original Developer obtained on or about August 24, 2004 pursuant to Ordinance No. 1126. "Specific Plan Area" means that certain real property, as more specifically described in the East Lake Specific Plan in effect as of the 2002 DDA Effective Date, consisting of approximately three thousand (3,000) acres of land area located within Project Area II and Project Area III, and is depicted on the Specific Plan Area Map set forth as Attachment 12 to this Agreement. Notwithstanding any amendment to the Specific Plan that adds or deletes property covered by the Specific Plan after the 2002 DDA Effective Date, for purposes of the Agreement the definition of the Specific Plan Area shall remain as set forth in the Specific Plan in effect as of the 2002 DDA Effective Date and as depicted in Attachment No 12 hereto. "Specific Plan Area Tax Revenues" means, with respect to a particular Fiscal Year, the total amount of Tax Revenues generated in said Fiscal Year from all of the parcels or lots within the portions of the Specific Plan Area excluding only the Developer Property and the Master Developer Property; provided, however, that with respect to the Stadium property only, the Specific Plan Area Tax Revenues mean, with respect to a particular Fiscal Year, the greater of (i) Zero Dollars ($0.00) or (ii) the positive remainder, if any, derived by subtracting the portion of the total Tax Revenues that would be generated from the Stadium based upon an assumed assessed valuation of Seven Million Dollars ($7,000,000) from the total Tax Revenues generated from the Stadium. It is understood that Specific Plan Area Tax Revenues include increases in the amount of Tax Revenues generated from the affected parcels or lots from time to time due to new construction, changes in ownership, inflationary adjustments to the assessed valuation of property, or any other causes. "Stadium" means that portion of the Specific Plan Area owned by Agency consisting of approximately 14.46 acres of land area located north of Malaga Street and west of Railroad Canyon Road on which the Lake Elsinore Diamond Stadium and ancillary improvements are located. The Stadium is more particularly described in Attachment 13 to this Agreement. "Stadium Parking Lot" means that portion of the Specific Plan Area which is utilized as the over -flow parking lot serving the Stadium and is commonly referred to as Parking Lot "C." The Stadium Parking Lot is more particularly described in Attachment 14 to this Agreement. The Stadium Parking Lot was transferred by Developer to Master Developer or an Affiliate of Master Developer and is included in Master Developer Property and all Accrued Tax Increment Revenues related thereto shall inure to the benefit of Master Developer. "Stadium Parking Replacement Plan" is defined in Section 401 of this Agreement. "State" means the State of California. "Statement of Developer's Extraordinary Infrastructure Costs" means a statement substantially in the form of Attachment 19 which shall include those items specified in Section 604 of this Agreement. "Statement of Master Developer's Costs" is defined in Section 601.2 of this Agreement. Clean Amnd Restd DDA - LMM comments Draft 030211- —21- AGENDA.doc "Statement of Reimbursable Affordable Housing Costs" is defined in Section 603 of this Agreement. "Taxing Agency" means the State, any city, county, city and county, district, or other public corporation for whose benefit taxes are levied upon taxable property in a Project Area each year as provided in each respective Redevelopment Plan, pursuant to Chapter 6 of the Redevelopment Law and Section 16 of Article XVI of the Constitution of the State. "Tax Revenues" means the gross amount of all taxes levied upon taxable property in the Project Areas as reported annually by the County of Riverside in the equalized assessment roll that are annually allocated to or for the benefit of Agency pursuant to Article 6 of Chapter 6 of the Redevelopment Law and Section 16 of Article XVI of the Constitution of the State. Not by way of limitation of the foregoing, it is understood that the term "Tax Revenues" shall include, and shall constitute the amount before any deduction for: (a) any portion of said Tax Revenues that may be required to be allocated or applied to payment of Agency's First Priority Obligations, (b) payments that are required to be made by Agency to or for the benefit of Taxing Agencies pursuant to the Pass - Through Agreements, regardless of whether such payments actually are made by Agency or are made by the County directly to the other Taxing Agencies (or, in the case of amounts payable to the County, retained by the County), (c) the payments Agency is required to make or amounts deducted or withheld from the portion of Tax Revenues actually paid to Agency to or for the benefit of the Educational Revenue Augmentation Fund in Fiscal year 2002 -2003 and future Fiscal Years (if applicable) pursuant to changes to State law. Notwithstanding any other provision set forth in this Agreement to the contrary, in the event the City and Agency amend any of the Redevelopment Plans after the 2002 DDA Agreement Date, for purposes of this Agreement the amount of Tax Revenues shall continue to be calculated as though said amendment(s) had not occurred, subject, however, to Agency's performance of its covenant set forth in Section 606(i). For purposes hereof, the Parties agree that the SB211 amendments made by Agency in 2008 to the Redevelopment Plans shall not extend the term of the Redevelopment Plans for purposes hereof. Finally, for purposes of this Agreement, the term "Tax Revenues" shall additionally include the amount of any identifiable subventions, payments, or fees received by the City or Agency from any governmental agency (including without limitation the State) or from the owners or occupants of any properties within the Project Areas in lieu of property tax increment revenues (including without limitation payments in lieu of property tax increment revenues paid by owners of tax - exempt property pursuant to negotiated agreements with the City or Agency). "Title Company" means such title insurance company as mutually approved in writing by Agency and Master Developer. "Unpaid Tax Revenues" means the positive difference, if any, between the amounts required to be paid to either Developer or Master Developer for any Fiscal Year as provided in Sections 602.2 and 604.2 and the amount of Tax Revenues remaining after payment by Agency in that Fiscal Year of its First Priority Obligations. All Unpaid Tax Revenues shall accrue simple interest at the same rate that is applicable to eminent domain judgments in the State of California (i.e., the apportionment rate calculated by the State Controller as the rate of earnings by the State's Surplus Money Investment Fund) for the calendar quarter immediately preceding Clean Amnd Restd DDA - LMM comments Draft 030211 - AGINDA.doc -22 the date on which such payments become due to either Developer or Master Developer until paid. "Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues" means, with respect to any Fiscal Year, the Developer's Share of the Developer Property Tax Revenues for such year less the sum of (i) the Pass - Through Portion of the Developer's Share of the Developer Property Tax Revenues in said year, and (ii) the Affordable Housing Portion of the Developer's Share of the Developer Property Tax Revenues in said year. "Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues" means, with respect to any Fiscal Year, the Master Developer's Share of the Master Developer Property Tax Revenues for such year less the sum of (i) the Pass - Through Portion of the Master Developer's Share of the Master Developer Property Tax Revenues in said year, and (ii) the Affordable Housing Portion of the Master Developer's Share of the Master Developer Property Tax Revenues in said year. "Unrestricted Portion of the Specific Plan Area Tax Revenues" means, with respect to any Fiscal Year, the Specific Plan Area Tax Revenues for such year less the sum of (i) the Pass - Through Portion of the Specific Plan Area Tax Revenues in said year, and (ii) the Affordable Housing Portion of the Specific Plan Area Tax Revenues in said year. 200. GENERAL PROVISIONS 201. Purpose of Agreement. This Agreement is intended to acknowledge performance to date of the 2002 DDA, document changes agreed to by the parties during the course of the implementation and performance of the 2002 DDA, resolve disputes between the Parties regarding alleged defaults by Original Developer under the 2002 DDA, clarify the respective rights and obligations of the Parties under the 2002 DDA (as amended hereby), and effectuate the Redevelopment Plans for Project Area II and Project Area III by providing for Master Developer's acquisition of the Master Developer Property and development of the Project on the Developer Property and the Master Developer Property. Developer's and Master Developer's acquisition of their respective portions of the Specific Plan Area and development of the portions of the Project to be developed with respect thereto pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the best interests of the City and the welfare of its residents, and in accordance with the public purposes and provisions of the Redevelopment Law and other applicable federal, state, and local laws and requirements. While it is not possible to predict with any degree of certainty, it is expected that the amount of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues together with the reimbursement of Extraordinary Infrastructure Costs will not exceed the cost of all of the public improvements required to complete the Project. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -23 202. Consent to Assignment. In 2009, Bank foreclosed on the Developer Property and asserted that it became the owner of the Developer Property and all of the right, title and interest of Original Developer under the 2002 DDA. Developer and Bank entered into certain purchase and sale agreements pursuant to which Bank, as successor in interest to Original Developer, agreed to transfer all of the Developer Property and all of the right, title and interest of Original Developer in and to the 2002 DDA to Developer. In June 2010, Developer acquired the Developer Property and all of the right, title and interest of Original Developer in and to the 2002 DDA from the Bank. Developer hereby represents and warrants to Agency that it has a valid and enforceable assignment from Bank of all rights, title and interest of Original Developer under the 2002 DDA, and, as of the Agreement Date, has made no further assignment of such rights, title and interests. Developer further represents and warrants that it is qualified and has the financial resources to develop the Project on the Developer Property and perform all of Developer's obligations set forth in this Agreement, subject to the terms and conditions herein. Developer fully and unconditionally accepts and assumes, all of the rights, duties and obligations of Original Developer in and under the 2002 DDA, as amended and restated hereby (collectively, the "Assumed Obligations "). Developer agrees to perform such obligations in accordance with and be bound in every way by all of the grants, terms, conditions, and covenants in respect of Original Developer contained in the Assumed Obligations. Developer agrees that it shall be bound by all of the terms, covenants and conditions of the Assumed Obligations as a successor and assign of Original Developer under Section 205 of the 2002 DDA, and therefore shall adhere to the terms, covenants and conditions of the Assumed Obligations as if it were the "Developer" under the 2002 DDA, as amended and restated hereby, for purposes of such documents. In consideration of the foregoing, Agency hereby consents to the transfer of the Developer Property and the assignment of all of Bank's right, title and interest in the 2002 DDA to Developer, and the assumption of the Assumed Obligations by Developer. Agency agrees that Developer shall have all of the rights afforded to Original Developer under the 2002 DDA, as amended and restated hereby, and expressly waives any right it may have under the 2002 DDA to treat such transfer and assignment by Bank to Developer as a default. 203. Payment of Agency Costs. Within seven (7) days after the Agreement Date Developer shall pay to Agency, as reimbursement for all consultants' and attorneys' fees incurred by Agency through February 28, 2010 pursuant to or in connection with the 2002 DDA and any alleged default there under by Original Developer, the sum of Two Hundred Fifteen Thousand Dollars ($215,000) in cash or its equivalent. In addition, Developer agrees to pay to Agency a sum not to exceed One Hundred Fifty Thousand Dollars ($150,000) to reimburse Agency for its actual and reasonable legal fees and consulting costs incurred in connection with the negotiation and drafting of this Agreement from March 1, 2010 through the Agreement Date. This additional sum shall be paid within thirty Clean Anmd Restd DDA - LMM comments Draft 030211 - AGGNDA.doc —24 (30) days after receipt of invoices, copies of cancelled checks, or other documents evidencing the particular expenses that Agency has incurred, with sufficient detail to permit Developer to verify eligibility of such expenses for reimbursement. 204. Representations and Warranties. 204.1 Agency's Representations and Warranties. In addition to any other Agency representations and warranties set forth in this Agreement, Agency represents and warrants to Developer and to Master Developer as follows, which representations and warranties shall survive any conveyances of land provided for herein and Agency's issuance of the Release(s) of Project Development Covenants for all portions of the Specific Plan Area that are acquired and developed by Developer and /or Master Developer: (a) Agency is a redevelopment agency and public body, corporate and politic, duly organized and existing and authorized to transact business and exercise powers under and pursuant to the Constitution and laws of the State, including the Redevelopment Law, and Agency has full lawful right, power, and authority to enter into, carry out, give effect to, and consummate the transactions contemplated by this Agreement. (b) By official action of Agency's Board of Directors prior to or concurrently with the execution and delivery hereof, Agency has duly authorized and approved the execution and delivery of this Agreement. (c) This Agreement has been duly executed by Agency and constitutes the valid and binding agreement of Agency enforceable against Agency in accordance with its terms. The individuals who have executed this Agreement on behalf of Agency have the right, power, and authority to execute, deliver, and perform this Agreement on behalf of Agency. (d) Except as may have been disclosed to Developer and Master Developer in writing within fifteen (15) days after the Agreement Date and to Agency's knowledge, Agency is not in breach of or default under the 2002 DDA, or any applicable law or administrative regulation of the State, the United States, or of any department, division, agency, or instrumentality of either thereof, or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement, or other instrument to which it is a party or is otherwise subject or bound, including without limitation with respect to amounts that Agency is required to deposit or set aside in its Low and Moderate Income Housing Fund, with respect to any of the Pass - Through Agreements, or with respect to any of the Senior Lien Debt, which would in any way materially impair Agency's timely performance of its obligations hereunder or under any other applicable agreements relating hereto, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such agreement, note, or other matter. In addition, to the best of Agency's knowledge, the execution and delivery of this Agreement by Agency and Agency's compliance with the provisions of this Agreement will not be prohibited by or constitute a breach of or default by Agency under any law, administrative regulation, judgment, decree, loan agreement, note, resolution, indenture, agreement, or other instrument to which Agency is a party or is otherwise subject or bound as of the Agreement Date. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -25 (e) To Agency's knowledge, except for the possible elimination of redevelopment agencies and related matters included in the budget proposed by California Governor Brown prior to and as of the Agreement Date, there is no action, suit, proceeding, inquiry, or investigation, at law or in equity, before or by any court, public board or body, pending or, to the best knowledge of Agency, after due inquiry, threatened against Agency contesting or affecting the corporate existence of Agency or the titles of the officials of Agency to their respective offices or seeking to restrain or to enjoin the timely payment to Agency of any of the Tax Revenues or the timely payment to Developer of the Developer's Share of the Developer Property Tax Revenues or the Extraordinary Infrastructure Costs or the timely payment to Master Developer of the Master Developer's Share of the Master Developer Property Tax Revenues that may be owing from time to time in accordance with the 2002 DDA and this Agreement, or in any way contesting or affecting the validity or enforceability of the 2002 DDA or this Agreement, or any action of Agency contemplated by this Agreement, or contesting the powers of Agency relating to the execution and delivery of this Agreement. (f) Except for the First Priority Obligations expressly identified in this Agreement, there are no bonds, notes, evidences of indebtedness, or other obligations of Agency secured in whole or in part by a pledge of or lien on or security interest in or payable from any of the Tax Revenues which are or will be superior to or on a parity with the pledge of and lien and security interest to be held by Developer and Master Developer in the portion of the Tax Revenues pledged for payment to Developer and Master Developer hereunder. (g) As of the end of Agency's 2001 -2002 Fiscal Year, the amount of Agency's total accrued and unpaid obligation owing to the City under the City Reimbursement Agreement was Eight Million One Hundred Fifty -Eight Thousand Two Hundred Thirty -Eight Dollars ($8,158,238). Until the expiration or earlier termination of this Agreement, Agency, upon learning of any fact or condition which would cause any of the representations and warranties in this Section 204.1 not to be true, shall promptly give Notice of such fact or condition to Developer and Master Developer. If the representation or warranty was true when initially made but becomes untrue after the Agreement Date due to circumstances that do not constitute a Default by Agency hereunder, such an occurrence shall not constitute a breach of said original representation or warranty (so long as prompt written disclosure is made). 204.2 Developer's Representations and Warranties. In addition to any other Developer representations and warranties set forth in this Agreement, Developer represents and warrants to Agency as follows, which representations and warranties shall survive Agency's issuance of the Release(s) of Project Development Covenants for all portions of the Developer Property: (a) Developer is a limited liability company duly organized within and in good standing under the laws of the State of Delaware. Developer is in good standing under the laws of the state of California and Delaware and has the power and authority to own property and carry on its business as now being conducted and as contemplated hereby. The copies of the documents evidencing the organization of Developer which have been delivered to Agency are Clean Anwd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -26 true and complete copies of the originals, as amended to the Agreement Date. The individual(s) and entities executing this Agreement on behalf of Developer are authorized to do so, and the execution, performance, and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of Developer. (b) All of the members of Developer and their respective ownership percentages as of the Agreement Date are McMillin Growth Summerly, LLC and Civic Partners - Elsinore, LLC. The manager of Developer is McMillin Real Estate Services, LP, a California limited partnership, the general partner of which is MCM Real Estate Group Inc., a California corporation, and such party has all requisite authority to act on behalf of Developer in connection with this Agreement. (c) The execution, delivery, and performance of its obligations under its Agreement will not constitute a default or a breach under any contract, agreement, or order to which Developer is bound. (d) This Agreement and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will constitute when so executed and delivered, legal, valid and binding obligations of Developer enforceable against it in accordance with the terms of each respective document or instrument. (e) To the knowledge of Developer: (i) No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, receivership or other proceedings are pending or threatened against the Developer or Affiliates of Developer, nor are any of such proceedings contemplated by Developer or Affiliates of Developer. Developer and its Affiliates are able to pay their respective debts as they become due. (ii) There is no action, suit, proceeding, inquiry, or investigation, at law or in equity, before or by any court, public board or body, pending or, to the best knowledge of Developer, after due inquiry, threatened against Developer contesting or affecting the corporate existence of Developer or seeking to restrain or to enjoin Developer's performance of its obligations set forth in this Agreement, or in any way contesting or affecting the validity or enforceability of this Agreement, or any action of Developer contemplated by this Agreement, or contesting the powers of Developer relating to the execution and delivery of this Agreement. (f) Developer does not have any contingent obligations or any contractual agreements which could adversely affect the ability of Developer to carry out its obligations hereunder. (g) Developer is the holder of fee title to all of the Developer Property as of the Agreement Date, subject only to the exceptions to title: portions of the Developer Property conveyed to the City and [insert lots sold to Richmond America]. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doe -27 (h) Developer is the sole successor in interest to all of the rights, title and interest of the Original Developer under the 2002 DDA and has not made any assignment or transfer of such interests. (i) Developer has the experience and financial resources to construct the Project in accordance with this Agreement. Until the expiration or earlier termination of this Agreement, Developer, upon learning of any fact or condition which would cause any of the representations and warranties in this Section 204.2 not to be true, shall promptly give Notice of such fact or condition to Agency. If the representation or warranty was true when initially made but becomes untrue after the Agreement Date due to circumstances that do not constitute a default by Developer hereunder, such an occurrence shall not constitute a breach of said original representation or warranty (so long as prompt written disclosure is made). 204.3 Master Developer's Representations and Warranties. In addition to any other Master Developer representations and warranties set forth in this Agreement, Master Developer represents and warrants to Agency as follows, which representations and warranties shall survive Agency's issuance of the Release(s) of Project Development Covenants for all portions of the Master Developer Property: (a) Master Developer is a limited liability company duly organized within and in good standing under the laws of the State. The copies of the documents evidencing the organization of Master Developer which have been delivered to Agency are true and complete copies of the originals, as amended to the Agreement Date. Master Developer has the full right, power, and lawful authority to undertake all of its obligations as provided herein, the individuals executing this Agreement on behalf of Master Developer are authorized to do so, and the execution, performance, and delivery of this Agreement by Master Developer has been fully authorized by all requisite actions on the part of Master Developer. (b) To Master Developer's knowledge: (i) Its execution, delivery, and performance of their obligations under its Agreement will not constitute a default or a breach under any contract, agreement, or order to which Master Developer is bound. (ii) Master Developer is not the subject of a bankruptcy proceeding. (iii) There is no action, suit, proceeding, inquiry, or investigation, at law or in equity, before or by any court, public board or body, pending or, to the best knowledge of Master Developer, after due inquiry, threatened against Master Developer contesting or affecting the corporate existence of Master Developer or seeking to restrain or to enjoin Master Developer's performance of its obligations set forth in this Agreement, or in any way contesting or affecting the validity or enforceability of this Agreement, or any action of Master Developer contemplated by this Agreement, or contesting the powers of Master Developer relating to the execution and delivery of this Agreement. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —28- (c) Master Developer acknowledges and agrees that the Master Developer Property is located in Project Areas II and III and is therefore subject to the requirements of Section 33413 of the Redevelopment Law and that Master Developer shall have the right, but not the obligation, to develop or cause to be developed Affordable Housing to satisfy those requirements in connection with the development of the portion of the Project to be developed on the Master Developer Property or to comply with any applicable in -lieu affordable housing fee. Until the expiration or earlier termination of this Agreement, Master Developer, upon learning of any fact or condition which would cause any of the representations and warranties in this Section 204.3 not to be true, shall promptly give Notice of such fact or condition to Agency. If the representation or warranty was true when initially made but becomes untrue after the Agreement Date due to circumstances that do not constitute a default by Master Developer hereunder, such an occurrence shall not constitute a breach of said original representation or warranty (so long as prompt written disclosure is made). 205. Restrictions on Changes in Ownership, Management, and Control of Developer and Master Developer; Assignment and Assumption Agreements; Release of Assignor. 205.1 Conditions of Consent The qualifications and identity of Developer and Master Developer are of particular concern to Agency. It is because of those qualifications and identity that Agency has entered into this Agreement with Developer and Master Developer. Accordingly, neither Developer nor Master Developer shall cause any voluntary or involuntary successor in interest of Developer or Master Developer to acquire any interest in the Developer Property or the Master Developer Property, nor any rights or powers under this Agreement, except as expressly set forth herein. Except for a Permitted Transfer (as hereinafter defined), prior to Agency's issuance of the Release of Project Development Covenants with respect to legal parcels within a Phase of the Developer Property or Master Developer Property, neither Developer nor Master Developer, as applicable, shall assign or transfer said parcel(s) or its rights and obligations under this Agreement with respect thereto, nor effect a change in control of Developer or Master Developer, without the prior written approval of Agency's Executive Director; provided, however, the Executive Director may in his /her sole and absolute discretion submit such request for assignment for consideration to the Agency Board. For purposes hereof, a "change in control" shall result from one or more transactions which individually or cumulatively convey more than fifty percent (50 %) of the ownership interests of Developer or Master Developer. 205.2 Permitted Transfers. The following shall constitute "Permitted Transfer(s)" hereunder: (a) Transfer or assignment of a membership interest in Developer and /or Master Developer, or a change in control of Developer and /or Master Developer, as a result of any of the following: Clean Anmd Restd DDA - LMM conuuents Draft 030211- AGENDA.doc -29 (i) The death or mental or physical incapacity of any individual owner of Developer and /or Master Developer; (ii) Transfers or assignments in trust for the benefit of a spouse, children, grandchildren, or other family members by any individual owner of Developer and /or Master Developer, provided that the original member retains voting control of the membership interest; or (iii) The transfer of stock in any publicly held corporation or the transfer of ownership interests in any publicly traded real estate investment trust. (b) Transfer or assignment of a legal parcel or parcels within the Developer Property or Master Developer Property or Developer's and /or Master Developer's rights and obligations under this Agreement with respect the following: (i) Any transfer or assignment of any legal parcel or parcels within the Developer Property or the Master Developer Property or any interest therein or any transfer or assignment of Developer's and /or Master Developer's obligations set forth in this Agreement with respect thereto to an Affiliate of Developer and /or Master Developer, respectively; (ii) The conveyance or dedication of any portion of the Developer Property or Master Developer Property to the City or other governmental agency or public utility or the granting of temporary or permanent easements or permits to facilitate development of the portions of the Developer Property or Master Developer Property acquired or to be acquired by Developer and /or Master Developer hereunder; (iii) Any assignment for financing purposes, including the grant of a deed of trust, an assignment of rents, leases, and profits, or other similar security agreement to secure the funds necessary for development and /or acquisition of portions of the Developer Property or Master Developer Property and construction or permanent financing of the portion or portions of the Project to be developed thereon and with respect thereto; (iv) A sale of any portion of the Developer Property or Master Developer Property or Developer's and /or Master Developer's rights and obligations under this Agreement with respect thereto at foreclosure or by a conveyance thereof in lieu of a foreclosure or any transfer by lender following acquisition of the Property at a foreclosure sale through a credit bid or a deed in lieu of foreclosure (but excluding any sale or transfer by any party thereafter); (v) A sale or lease of any legal parcel within the Developer Property or Master Developer Property to a merchant builder or builders or end user or users, provided that such sale or lease does not close escrow until after Agency's issuance of its Release of Project Development Covenants with respect to the applicable legal parcel(s); (vi) Recordation of an appropriate Declaration(s) of Covenants, Conditions, and Restrictions, reciprocal easement agreement(s), or similar document(s) consistent with the purposes of this Agreement and the permitted uses for the affected portions of the Developer Property or Master Developer Property; Clean Amid Restd DDA - LMM comments Draft 030211 - AGENDA. doe —30— (vii) The transfer of the Stadium Parking Lot or lot 29 of tract 31920 of the Developer Property to Master Developer or any Affiliate of Master Developer; (viii) The transfer of any portion of the Developer Property to Master Developer provided that subsequent to the time of such transfer, the property transferred shall constitute Master Developer Property; and (ix) Transfer to any of the following entities; provided that they remain Affiliates of Developer: The Corky McMillin Real Estate Group, LLC, a limited liability company, Acorn Grand Investor, LP, a Delaware limited partnership, and McMillin Growth Properties, LLC, a limited liability company. 205.3 Mechanics of Consent. Developer and /or Master Developer shall provide Notice to Agency of any (a) Permitted Transfer shall prior to the date thereof, and of any (b) transfer or assignment that does not constitute a Permitted Transfer not less than thirty (30) calendar days prior to the date thereof and shall request Agency's consent with respect thereto. If required, Agency's Executive Director and /or the Agency Board shall approve or disapprove any such requested assignment or transfer within thirty (30) calendar days after receipt of a written request for approval from Developer and /or Master Developer, provided that such request was accompanied by (i) such documentation as may be reasonably required by Agency's Executive Director to evaluate the proposed assignee or transferee; and (ii) a proposed form of assignment and assumption agreement. The documentation to be provided by Developer and /or Master Developer to Agency's Executive Director may include, without limitation, all documentation which Agency's Executive Director reasonably determines is necessary to enable the Executive Director to evaluate the proposed transaction and the proposed assignee's /transferee's experience and qualifications. If the Agency's Executive Director reasonably determines that the information provided by Developer and /or Master Developer with regard to the proposed transaction and /or the proposed assignee's /transferee's qualifications and experience is insufficient to enable the Executive Director and /or the Agency Board to determine whether to approve said assignment /transfer, the Executive Director shall give Developer and /or Master Developer Notice as soon as reasonably practicable, and in no event later than twenty (20) calendar days after his /her receipt of Developer's and /or Master Developer's initial submittal, as to what additional information is needed for that purpose. Agency's Executive Director shall not unreasonably withhold or condition approval of a transfer, change of control or assignment to a proposed transferee /assignee that is financially capable and possesses the development qualifications and experience to perform the duties and obligations of Developer and /or Master Developer hereunder being assumed. Any Notice of disapproval of a requested assignment or transfer shall specify the reasons for the disapproval and, if applicable, the conditions required to be satisfied by Developer and /or Master Developer or the proposed assignee /transferee in order to obtain approval. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -31- In the event of an assignment or transfer of Developer Property or Master Developer Property which does not include the transfer of any rights or obligations under this Agreement, no assignment and assumption agreement shall be required, but a Consent to Transfer Agreement and Release shall be submitted and signed by Developer or Master Developer and the transferee, at least fifteen (15) days prior to the proposed transfer. Prior to any other proposed transfer or assignment which is not a Permitted Transfer, Developer or Master Developer shall deliver to Agency's Executive Director and legal counsel a proposed written assignment and assumption agreement pursuant to which the assignor /transferor expressly agrees to assign and the assignee /transferee expressly agrees to assume all of the obligations of Developer or Master Developer set forth in this Agreement. The assignment and assumption agreement shall be in a form mutually agreed upon by the Parties. Subject to any approval by the Agency, within fifteen (15) calendar days of the date the assignment /assumption becomes effective, Developer or Master Developer shall deliver to Agency a fully executed counterpart of the assignment and assumption agreement. It is understood that the assignor /transferor shall have the right hereunder to not assign its rights with respect to payments of all or a portion of the Developer's Share of the Developer Property Tax Revenues and /or Master Developer's Share of Master Developer Property Tax Revenues and /or Extraordinary Infrastructure Costs, as applicable, at the time the assignor /transferor assigns or transfers other rights and obligations set forth in this Agreement. The restrictions of this Section 205 shall terminate with respect to each legal parcel within the Specific Plan Area when (a) the Release of Project Development Covenants with respect to said parcel is recorded pursuant to Section 511 of this Agreement, or (b) provided that Developer or Master Developer retains all rights and obligations under the DDA, upon the consent of Agency to a transfer of Developer Property or Master Developer Property to a merchant builder or similar party. 206. Agency Obligations to Disburse Tax Increment Notwithstanding any permitted assignment under Section 205, except as otherwise provided in any approved assignment and agreement or Consent to Transfer Agreement and Release, Agency shall have no obligation to any assignee of Developer or Master Developer to perform any of its obligations hereunder, including, without limitation, those set forth in Section 600. 300. INTENTIONALLY OMITTED 400. PROPERTIES SUBJECT TO THIS AGREEMENT 401. Implementation of Stadium Parking Replacement Plan. As a condition to Developer's or Master Developer's right to develop the Stadium Parking Lot site for another use that does not accommodate the current surface parking spaces, Developer or Master Developer, as the case may be, shall implement a "Stadium Parking Replacement Plan" consistent with the following: Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —32 (a) Any parking displaced from the Stadium Parking Lot shall be replaced on a 1 -for -1 basis, either by construction of a parking structure or structures on a portion of the existing Stadium Parking Lot, by development of substitute parking at a suitable off -site location, or a combination of the two. Currently, One Thousand Five Hundred (1,500) surface spaces are located on the Stadium Parking Lot. So long as none of the existing number of parking spaces on the Stadium Parking Lot is displaced, the Stadium Parking Lot shall be subject to the terms of that certain reserved easement appurtenant to the Stadium dated November 14, 2005 and recorded as Instrument Number 2005- 1010707 in the Official Records of the Riverside County Recorder (herein, the "Parking Easement') entitling the Stadium owner to continue to utilize One Thousand Five Hundred (1,500) parking spaces on the Stadium Parking Lot for Stadium events until the Stadium Parking Replacement Plan is implemented. (b) Agency and Developer or Master Developer, as applicable shall cooperate in the reconfiguration of any existing surface parking spaces on the Stadium Parking Lot and in the design of any new parking spaces to minimize the amount of land area required therefor, consistent with such factors as compliance with applicable Governmental Requirements (including without limitation requirements relating to the size of parking spaces, minimum driveway widths, and similar design standards in effect as of the Agreement Date), convenience of use and accessibility, and cost considerations. (c) In the event replacement parking spaces are to be located off of the Stadium Parking Lot, the closest point of the property on which the replacement parking spaces are located shall be not more than 1,000 feet from the nearest public entrance to the Lake Elsinore Diamond Stadium facility, unless otherwise agreed to in writing by Agency. (d) Unless agreed to by Agency in its sole and absolute discretion, the Stadium Parking Replacement Plan shall provide for the continuous availability for the benefit of Agency or its successor -in- interest to title to the Stadium of the minimum number of parking spaces for the Stadium during Stadium events as referred to above. Agency agrees to cooperate in the implementation of an interim parking plan that provides for adequate off -site parking for the Stadium during any period of construction on the Stadium Parking Lot ". The parking spaces provided pursuant to the interim parking plan may be in a lot or lots that are not improved, but the parking spaces provided pursuant to the permanent Stadium Parking Replacement Plan shall be fully improved. Agency further acknowledges that after any initial interim or permanent Stadium Parking Replacement Plan is implemented, the owner of the Stadium Parking Lot shall have the right to reconfigure or relocate the parking spaces at a later date so long as Agency's minimum parking rights set forth herein are continuously respected and maintained. Agency covenants to cooperate at no cost to Agency in obtaining any permits or approvals required to implement the Stadium Parking Replacement Plan (including any amendments or modifications thereto) that meet the intent of this Section 401, provided that Agency does not warrant or represent that such permits or approvals will be issued by any third party, including the City. If any Stadium Parking Replacement Plan provides for some or all of the Stadium parking to remain on the Stadium Parking Lot, Developer and Master Developer, as the case may be, and Agency shall cooperate in executing any documents amending the Parking Easement as may be necessary and appropriate to set forth Agency's reserved parking rights referred to herein. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —33— Agency and the Stadium shall be responsible for paying their pro rata share of all actual and reasonable common area maintenance costs incurred with respect to the parking spaces to be provided for their benefit based upon a fair allocation of usage, with said costs to include without limitation normal sweeping and restriping, lighting and electrical costs, costs for operation and security, repairs and a reasonable capital replacement reserve, insurance, and taxes and assessments, and with said costs to be offset by a similar pro rata share of any income received by Developer or Master Developer, as the case may be, from operation of the parking lot(s) or structure(s). (e) Developer or Master Developer, as the case may be, shall plan, design, engineer, construct, and finance the new parking spaces to be provided for the benefit of Agency and the Stadium at no cost to Agency, provided that Agency shall pay its own administrative and overhead costs incurred in conferring with Developer and /or Master Developer and its consultants and reviewing and commenting upon the Stadium Parking Replacement Plan, including without limitation planning, engineering, and legal costs relating thereto. 402. Master Developer Designated as Master Developer of Balance of Specific Plan Area. It was and is the intent of the Parties in entering into the 2002 DDA and this Agreement to facilitate the phased development of all of the developable properties in the Specific Plan Area that may be acquired by Master Developer from time to time. To that end, Master Developer is hereby designated as the "master developer" of the entire Specific Plan Area, excluding only the Developer Property and the Stadium; provided, however, that in the event this Agreement is terminated with respect to all or a portion of the Developer Property pursuant to Section 807.1, the portion of the Developer Property as to which this Agreement is terminated may thereafter become part of the Master Developer Property. From and after the date of such termination, Agency shall have no further obligation to pay the Developer's Share of the Developer Property Tax Revenues generated by the parcels that are no longer subject to this Agreement notwithstanding Master Developer's acquisition of such former Developer Property. So long as this Agreement is in effect with Master Developer, Agency shall not enter into any agreement for Agency financial assistance with any person or entity other than Master Developer in connection with the acquisition and /or development of any portion of the Specific Plan Area, excluding only the Developer Property and the Stadium. Notwithstanding the foregoing, Agency reserves the right to enter into agreements with other owners or occupants of such portion of the Specific Plan Area in accordance with Agency's Owner Participation Rules and /or the owner participation and business reentry provisions set forth in its Redevelopment Plans; provided, however, that no such agreement with any other owner, owners, or occupants shall jeopardize or impair Master Developer's rights hereunder with respect to development of the balance of such portions of the Specific Plan Area that are in fact acquired by Master Developer (i.e., the Master Developer Property) or Developer's or Master Developer's right to timely receipt of the Developer's Share of the Developer Property Tax Revenues, the reimbursement of approved Extraordinary Infrastructure Costs, and the Master Developer's Share of the Master Developer Property Tax Revenues, as provided herein. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —34— 403. Other Publicly -Owned Properties. Master Developer shall have the right and option to acquire any other property or properties owned by Agency within the Specific Plan Area from time to time (excluding the Stadium) so long as (i) Agency is not prohibited by applicable law or any contract or other voluntary restriction agreed to by Agency prior to the 2002 DDA Effective Date from transferring such property or properties to a third party such as Master Developer or for the type of development or use that is proposed by Master Developer pursuant to this Agreement and (ii) such property or properties is /are not designated in the City's General Plan or other applicable City land use ordinance or regulation for a public use such as a public park, fire station, or the like that is inconsistent with Master Developer's proposed use. The location of such properties that are owned by Agency as of the Agreement Date is depicted in Attachment 7 to this Agreement. Master Developer shall be entitled at its option to acquire Other Agency - Owned Properties on a one - for -one acreage or square footage basis (regardless of the then - existing or planned use) in exchange for other portions of the Specific Plan Area that may be owned by Master Developer or Affiliates of Master Developer from time to time. In addition to the foregoing, upon Master Developer's written request to Agency, Agency shall cooperate in good faith with Master Developer, at no cost to Agency other than Agency's administrative and overhead cost, to assist Master Developer in its efforts to acquire properties that are owned by the City or other public agencies from time to time in the Specific Plan Area that Master Developer determines will or may be useful to its planned development thereof, provided, however, that Agency makes no representation or warranty that its assistance will be successful. In the event that Master Developer and Agency identify and designate any Other Agency - Owned Properties for exchange in accordance with this Agreement, both said Parties shall cooperate in opening an Escrow for conveyance of the properties to be exchanged generally consistent with the provisions of Section 308 of the 2002 DDA pertaining to the Escrow and Agency and Master Developer shall execute such other documents as may be reasonable required to effectuate such exchange within a reasonable time period not to exceed sixty (60) calendar days after the date the property subject to such exchange is identified or such other date as may be agreed to in writing between them. Title to properties that are exchanged shall be conveyed free and clear of all monetary liens and encumbrances with non - delinquent taxes and assessments prorated at the Closing for such exchange, and subject to all existing easements, covenants, restrictions, and other non - monetary encumbrances of record as of the date the properties are identified for exchange. Agency and Master Developer shall cooperate in identifying and disclosing to one another the condition of title of the properties to be exchanged and Master Developer shall have the right to terminate the exchange and cancel the Escrow therefor if it reasonably determines that the condition of title to the property it desires to acquire renders it unsuitable for its intended use. The physical condition of the properties to be exchanged shall be strictly "as -is, where is, and with all faults," with no other warranty express or implied by the grantor regarding the presence of Hazardous or Toxic Substances or Materials, compliance with Environmental Laws, or the condition of the soil, geology, the presence of known or unknown seismic faults, or the Clean Anmd Restd DDA - LMM comments Draft 030211- —35- AGENDA.doc suitability of the exchanged property for any particular development or use by the grantee, neither Agency nor Master Developer as grantor shall have any liability or obligation after the Closing with respect thereto, and each grantee shall release the grantor at the Closing to the same extent as set forth in Section 402.4(d) of the 2002 DDA with respect to the Stadium Parking Lot. Prior to the closing for any such exchange, however, each grantor shall provide to the grantee the same categories of property documents pertaining to the grantor's property that are set forth in Section 402.4(a) of the 2002 DDA with respect to the Stadium Parking Lot, the grantee shall have the right to enter onto and inspect the grantor's property to the same extent and subject to the same terms and conditions as are set forth in Section 402.4(b) of the 2002 DDA with respect to the Stadium Parking Lot, Agency shall have the right to terminate the exchange and cancel the Escrow therefor if it reasonably determines that the property it is to acquire violates any Environmental Laws, and Master Developer shall have the right to terminate the exchange and cancel the Escrow therefor if it determines that the property it is to acquire is not physically suitable for its intended use. Agency and Master Developer shall each pay one -half (1/2) of the Escrow Agent's fees and the costs and closing charges for each exchange Escrow. Agency and Master Developer shall cooperate and execute such documents as may be consistent with the foregoing to implement the purposes of this Section 403. 404. Master Developer's Acquisition of Other Properties in Specific Plan Area from Third Parties. In addition to the foregoing, Master Developer and any Affiliate of Master Developer shall have the right to acquire any other property or properties owned by any third parties within the Specific Plan Area from time to time and to develop the portion of the Project to be developed on and with respect to such properties. 500. DEVELOPMENT OF THE PROJECT 501. Scope of Development. 501.1 General Scope of Development; Project. In consideration of the obligations of Agency set forth herein, Developer and Master Developer shall complete or cause to be completed the work and improvements necessary to ready the developable portions of the Developer Property and the Master Developer Property for vertical improvements in accordance with the terms and conditions set forth in this Agreement ( "Project "). The Project shall include, without limitation, processing of planning, zoning, subdivision and other entitlements and obtaining all required development permits and approvals in accordance with applicable Governmental Requirements and, thereafter, in accordance with such entitlements, approvals and permits, improving the developable portions of the Developer Property and the Master Developer Property to the following extent: (i) such areas shall be rough graded; (ii) all off -site infrastructure that the City may reasonably require to be constructed or installed as conditions to rough grading or as conditions of approval of applicable entitlements and permits shall be constructed or installed or shall be bonded or paid for as required by the City, (iii) all backbone street, water, sewer, and storm drain improvements required to provide Clean Amnd Restd DDA - LMM comments Draft 030211 - AGGNDA.doc —36— access and utilities shall be constructed or installed or shall be bonded or paid for as required by the City; (iv) erosion control improvements required as a condition to rough grading or as a condition of approval of applicable entitlements and permits shall be constructed and installed; (v) all improvements and work required to be completed as a condition to the Army Corps of Engineers' Section 404 permit allowing the rough grading to occur on any Phase of the Developer or Master Developer Property within its jurisdictional limits shall be completed; and (vi) a Golf Course shall be constructed on the Developer Property (which such Golf Course is deemed completed). It is expressly understood that the scope of the Project excludes (a) all in -tract residential streets; (b) any so- called "dry utilities" (e.g., gas, electrical, telephone, CATV), and "wet utilities" (e.g., water, sewer and storm drain) located in the residential in -tract streets; and (c) all public and private building improvements, including, without limitation, private residential and commercial improvements that may be constructed on the Developer or Master Developer Property. 501.2 Project on the Developer Property; Phases. Since the 2002 DDA Effective Date, the City Council (a) approved SPA 6 covering the Developer Property, (b) entered into that certain First Amended and Restated Development Agreement dated August 24, 2004 with Original Developer and the First Operating Memorandum of Understanding dated November 23, 2010 by and between the City and the Developer, (c) approved Tract Nos. 31920 -1 through 31920 -6 as more specifically described in Attachment 16 to this Agreement, and (d) approved various rough grading plans, water, sewer and storm drain plans and other site improvement plans submitted by Original Developer. In addition, the Golf Course plans were approved and the Golf Course and flood control improvements included in the Golf Course were constructed on Lots 30 and 31 of Tract No. 31920 -1 and the Golf Course is currently open to the public for use. The scope of the Project and the subsequent development of the Developer Property are further established as provided in SPA 6, the conditions of approval to Tract Nos. 31920 -1 through 31920 -6, and related entitlements and development permits as the same may be amended, modified and supplemented after the Agreement Date. Phase Scope of Work means the scope of work required to be performed by the Developer or Master developer for each Phase of the Project on the Developer Property or Master developer Property, as described in Attachment 17A and Attachment 17B, respectively, in order to achieve Completion of Development and receive a Release of Project Development Covenants for such Phase. The Project on the Developer Property is divided into eight Phases, described as Phase 1 and Phases A through G as depicted on Attachment 8 to this Agreement. Included in each Phase is the Backbone Infrastructure Scope of Work as described in Attachment I to this Agreement. The Phase Scope of Work for each Phase of the Project on the Developer Property ( "Phase Scope of Work ") shall include the (i) rough grading within the boundaries of the Phase in accordance with applicable grading plan(s); (ii) erosion control improvements within the boundaries of the Phase required as a condition to rough grading; (iii) the Backbone Infrastructure Scope of Work for the streets included in such Phase; (iv) infrastructure improvements required as a condition of approval to SPA 6, tentative tract maps, Army Corps of Engineers Section 404 Permit or other entitlements and permits the satisfaction of which is Clean Amid Restd DDA - L.MM comments Draft 030211- -3 7- AGENDA.doc triggered in accordance with the Implementing Matrix after Commencement of the preceding Phase and prior to the Commencement of the current Phase; and (v) modifications to the Backbone Infrastructure Scope of Work if any, as a result of the Developer's change in sequence of the Phase(s). Each Phase is intended to proceed sequentially, but the sequence may be changed or Phases may be combined by Developer in its sole discretion, subject only to City's right to require, due to health and safety and /or transportation circulation requirements, reasonable modifications to the backbone infrastructure required to be completed to achieve Completion of Development of such Phase. If any Phase of the Project on the Developer Property is combined with another Phase of the Project on the Developer Property pursuant to the Phase Commencement protocol set forth below, the combined Phases shall be deemed a single Phase for all purposes relating to the timing requirements for Completion of Development, but Developer shall receive a "Credit" with respect to commencement of the next Phase. For example, if two or three Phases are commenced simultaneously, all Phases must be completed within eighteen (18) months. However, Developer shall receive a "Credit" of eighteen (18) months for each Phase commenced in excess of a single Phase. For example, if two Phases are commenced at once, Developer would not be required to start another Phase for thirty six (36) months, or if three Phases are commenced at once, Developer would not be required to start another Phase for fifty four (54) months. (a) Phase Schedule. Subject to extensions of time permitted due to Force Majeure Delays, and time extensions obtained through the proper exercise of any "Option to Extend" described below, Developer shall obtain all required development permits and approvals in accordance with applicable Governmental Requirements and shall cause Commencement and Completion of Development of each Phase of the Project on the Developer Property as follows: (1) Phase 1. Commencement of Phase 1 shall be deemed to occur on the Agreement Date. Developer shall achieve Completion of Development of the Phase 1 Scope of Work on or before twelve (12) months after the Agreement Date. (2) Phases A through G. Commencement of the first of the seven (7) subsequent Phases of the Project on the Developer Property shall occur within eighteen (18) months after the Completion of Development of Phase 1. Commencement of each subsequent Phase of the Project on the Developer Property thereafter shall occur within eighteen (18) months after Commencement of the previous Phase except in the event an Option to Extend the Completion of Development is purchased for the previous Phase. Completion of Development of each Phase of the Project on the Developer Property after Phase 1 shall occur within 18 months of its Commencement unless an Option to Extend the Completion of Development is purchased. Assuming each Phase of the Project on the Developer Property proceeds in sequence, the required latest dates for Commencement and Completion of Development of each Phase is set forth in the Schedule of Phase Development. (b) Phase Commencement Protocol. Prior to Commencement of any Phase (other than Phase 1) of the Project on the Developer Property, a Pre - Commencement Meeting Clean Amnd Restd DDA - LMM comments Draft 030211- —38— AGENDA.doc shall occur among Developer, Agency and /or City. Developer shall provide Agency and City with a request to schedule a Pre - Commencement Meeting. The request shall indicate the Phase or Phases of the Project on the Developer Property, as well as describe the Phase Scope of Work required for achieving Completion of Development of such Phase or Phases, and include a report on the status of permits required for the Phase Scope of Work. Provided that no Event of Default has occurred and is continuing, City and Agency shall respond as soon as possible, but in no event later than fifteen (15) calendar days, and schedule the Pre - Commencement Meeting within those fifteen (15) calendar days. Unless Agency and /or City determine at the Pre - Commencement Meeting that Developer is not in a position to proceed with Commencement of such Phase or Phases of the Project on the Developer Property, Agency and City shall issue to Developer a Notice of Right to Commence at the conclusion of the Pre - Commencement Meeting. Thereafter, Developer may issue its Notice of Commencement, documenting the date of Commencement of such Phase or Phases. (c) Phase Completion Protocol. At such time as Developer determines that the Phase Scope of Work pertaining to any Phase of the Project on the Developer Property as to which Commencement has occurred is substantially complete, Developer shall deliver to Agency a Notice of Completion with respect to such Phase, together with (i) civil and geotechnical engineers' certificates and such other certifications as may be necessary to evidence Completion of Development of the Phase, and (ii) evidence of bonds or other security for any items identified in the Notice of Commencement as requiring bonds or other security upon completion. Provided that the substantial completion date set forth in the Notice of Completion is within the time required for Completion of Development of such Phase (as the same may be extended as provided in this Agreement), and provided that Agency and /or City do not dispute Developer's assertion that the Phase Scope of Work is substantially complete, Developer shall be entitled to request and receive a Release of Project Development Covenants for such Phase pursuant to Section 511. Agency and /or City shall respond as soon as possible, but in no event later than fifteen (15) calendar days from the date of receipt of a Notice of Completion, with any dispute to Developer's assertion of the completeness of the Phase Scope of Work. Any such dispute shall be delivered by Notice to Developer, with a detailed explanation as to why the Agency and /or City does not consider the Phase Scope of Work substantially complete. The Parties acknowledge that completion of "punch list work" is not a prerequisite to achieving Completion of Development. Completion of Development is achieved when the progress of the work is sufficiently complete that it can be utilized for its intended purpose. Accordingly, for purposes hereof, "substantially complete" means that only "punch list" items remain which are bonded for as described below, and that the primary components of the Phase Scope of Work are available to be used for their intended purposes. If the reason for Agency's dispute of a Notice of Completion is confined to so- called "punch list work," Agency's Executive Director shall approve a Notice of Completion upon Developer's delivery of a cash deposit, bond or irrevocable letter of credit in favor of Agency in an amount representing one hundred fifteen percent (115 %) of the fair value of any work not yet completed or, if it is not reasonably practical to determine the fair value of the work not yet completed (as in the case of landscaping or ground cover that has been installed Clean Anwd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —3 9— but has not yet achieved adequate maturity or coverage in accordance with City standards), a cash deposit, irrevocable letter of credit, or bond in an amount representing one hundred fifteen percent (115 %) of the amount the Agency reasonably determines is needed to secure Developer's obligation to satisfy the applicable City standards. The form of any such security instrument furnished by Developer shall be reasonably acceptable to Agency's counsel. Notwithstanding the foregoing, this Section shall not be construed to require any incomplete item to be bonded more than once, e.g., if the City already has an appropriate bond in place for any work not yet completed, this Section shall not be construed to require an additional bond for the same work. (d) Status Reports. Every six (6) months following Commencement of any Phase of the Project on the Developer Property until Completion of Development of such Phase, Developer shall deliver to Agency a written progress report Notice describing Developer's progress toward achieving Completion of Development in sufficient detail to enable Agency to monitor and verify Developer's progress in implementing the commenced Phases. (e) Phase Extension Protocol. At any time after Commencement of a Phase up to and including thirty (30) calendar days prior to the required date for Completion of Development of such Phase, Developer shall have the option to extend the date for Completion of Development for such Phase by giving written Notice to Agency of exercise of the option to extend. The Developer's option to extend may be exercised only one (1) time for any given Phase of the Project. The total extension period per Phase of the Project cannot exceed six (6) months and the aggregate extension periods purchased for all Phases of the Project cannot exceed twenty four (24) months. Developer shall have the right to determine, in its sole and absolute discretion, the duration of any requested extension period, provided the extension shall be in whole months ranging from one (1) month to six (6) months. Each extension shall extend the Schedule of Phase Development for all subsequent Phases. The option exercise Notice shall be accompanied by payment of the appropriate extension fee based on the extension duration chosen by Developer as set forth in the following table: Duration Fee Per Period* One Month $10,000 Two Months $25,000 Three Months $40,000 Four Months $60,000 Five Months $80,000 Six Months $100,000 *The extension fee shall be increased by CPI every twelve (12) months after the Agreement Date. Each written Notice of exercise of the option to extend shall also be accompanied by a revised Project Phasing and Extension Table reflecting the effect of the extension on the current and subsequent Phases of the Project. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —40— 501.3 Master Developer Property; Phases The portions of the Project on the Master Developer Property may be installed in multiple Phases. The Master Developer Property comprising a Phase may be contiguous or non- contiguous. Each Phase of the Project on the Master Developer Property shall involve a minimum of (i) thirty (30) gross acres of property with respect to any Phase consisting of single family, detached housing uses, and (ii) four (4) gross acres for any Phase consisting of hotel /motel use, or of mixed use office, and /or industrial, and /or retail, and /or attached residential (subject to the provisions of Section 501.3(f)). There is no maximum size for a Master Developer Phase. Subject to the foregoing and the condition of obtaining the required governmental permits and approvals Master Developer shall have the right to determine the size and configuration of each Phase in its sole and absolute discretion, and consistent with such permits and approvals. (a) Phase Schedule. Master Developer shall obtain all required development permits and approvals for development of the first Phase of the portion of the Project to be developed on the Master Developer Property and Commencement of said Phase shall occur no later than the earlier to occur of (i) March 31, 2024; or (ii) if applicable, twenty four (24) months from the date Agency provides Notice to Master Developer that this Agreement has been terminated with respect to the Developer Property (provided, however, that if Developer is disputing said termination, the twenty four (24) month period under this clause (ii) shall be extended until the date Agency provides written Notice to Master Developer that said dispute has been resolved by a final and non - appealable judgment in a judicial action, by a final, binding, written settlement agreement, or by some similar final and binding action or determination, but in no event later than March 31, 2024. Notwithstanding the foregoing, Master Developer may, but shall not be obligated to, cause the earlier Commencement of a Phase in accordance with the Commencement Protocol set forth below. If Commencement of any Phase of the Project on the Master Developer Property is permissive, Master Developer shall have no obligation for Commencement of any subsequent Phase until the conditions precedent to mandatory Commencement have occurred and then shall receive credit against any such mandatory Phase Commencement and Completion of Development obligation (as well as any subsequent mandatory Phase Commencement and Completion of Development obligation) for each previous permissive Phase Commencement and Completion of Development achieved by Master Developer. Subject to extensions of time permitted due to Force Majeure and time extensions obtained through the proper exercise of any "Option to Extend" described below, Completion of Development of each Phase of the Project on the Master Developer Property (whether mandatory or permissive) is required within eighteen (18) months after Commencement of such Phase. (1) Subsequent Phases. Subject to extensions of time permitted due to Force Majeure Delays and time extensions obtained through the proper exercise of any "Option to Extend" described below, following the mandatory Commencement of a Phase of the Project on the Master Developer Property, Commencement of each subsequent Phase of the Project on the Master Developer Property thereafter shall occur within 18 months after Commencement of the previous Phase. Completion of Development of each subsequent Phase of the Project on the Master Developer Property shall occur within 18 months of its Commencement. Clean Anmd Restd DDA - LMM conmients Draft 030211 - AGENDA.doc 41- (b) Phase Commencement Protocol. Prior to Commencement of any Phase of the Project on the Master Developer Property a Pre - Commencement Meeting shall occur among Master Developer, Agency and City. Master Developer shall provide Agency and /or City with a request to schedule the Pre - Commencement Meeting. The request shall describe the Phase of the Project on the Master Developer Property, including its proposed use and gross acreage, as well as a description of the scope of work ( "Phase Scope of Work ") required for achieving Completion of Development of such Phase and a report on the status of permits required for the described Phase Scope of Work. Provided that no Event of Default has occurred and is continuing, City and Agency shall respond as soon as possible but in no event later than fifteen (15) calendar days and schedule the Pre - Commencement Meeting within those fifteen (15) days. Unless Agency and /or City determine at the Pre - Commencement Meeting that Master Developer is not in a position to proceed with Commencement of such Phase of the Project on the Master Developer Property, they shall issue to Master Developer at the conclusion of the Pre - Commencement Meeting a "Notice of Right to Commence ". Thereafter, Master Developer may issue its Notice of Commencement, documenting the date of Commencement of such Phase. (c) Phase Completion Protocol. At such time as Master Developer determines that the Phase Scope of Work pertaining to any Phase of the Project on the Master Developer Property, as to which Commencement has occurred, is substantially complete, Master Developer shall deliver to Agency a Notice of Completion with respect to such Phase, together with (i) civil and geotechnical engineers' certificates and such other certifications as may be necessary to evidence Completion of Development of the Phase, and (ii) evidence of bonds or other security for any items identified in the Notice of Commencement as requiring bonds or other security upon completion. Provided that the substantial completion date set forth in the Notice of Completion is within the time required for Completion of Development of such Phase (as the same may be extended as provide in this Agreement), Master Developer shall be entitled to request and receive a Release of Development Covenants for such Phase pursuant to Section 511. Agency and /or City shall have fifteen (15) calendar days from the date of receipt of a Notice of Completion to dispute Master Developer's assertion of the completeness of the Phase Scope of Work. Any such dispute shall be delivered by Notice to Master Developer, with a detailed explanation as to why the Agency and /or City does not consider the Phase Scope of Work substantially complete. The Parties acknowledge that completion of "punch list work" is not a prerequisite to achieving Completion of Development. Completion of Development is achieved when the progress of the work is sufficiently complete that it can be utilized for its intended purpose. Accordingly, for purposes hereof, "substantially complete" means that only "punch list" items remain which are bonded for as described below, and that the primary components of the Phase Scope of Work are available to be used for their intended purposes. If the reason for Agency's dispute of a Notice of Completion is confined to so- called "punch list work," Agency's Executive Director shall approve a Notice of Completion upon Master Developer's delivery of a cash deposit, bond or irrevocable letter of credit in favor of Agency in an amount representing one hundred fifteen percent (115 %) of the fair value of any work not yet completed or, if it is not reasonably practical to determine the fair Clean Amid Restd DDA - LMM comments Draft 030211 - AGENDA.doc -42 value of the work not yet completed (as in the case of landscaping or ground cover that has been installed but has not yet achieved adequate maturity or coverage in accordance with City standards), a cash deposit, irrevocable letter of credit, or bond in an amount representing one hundred fifteen percent (115 %) of the amount the Agency reasonably determines is needed to secure Master Developer's obligation to satisfy the applicable City standards. The form of any such security instrument furnished by Master Developer shall be reasonably acceptable to Agency's counsel. Notwithstanding the foregoing, this Section shall not be construed to require any incomplete item to be bonded more than once, e.g., if the City already has an appropriate bond in place for any work not yet completed, this Section shall not be construed to require an additional bond for the same work. (d) Status Reports. Every six (6) months following Commencement of any Phase of the Project on the Master Developer Property until Completion of Development of such Phase, Master Developer shall deliver to Agency a written progress report Notice detailing Master Developer's progress toward achieving Completion of Development in sufficient detail to enable Agency to monitor and verify Master Developer's progress in implementing the commenced Phases. (e) Phase Extension Protocol. At any time after Commencement of a Phase up to and including thirty (30) calendar days prior to the required date for Completion of Development of such Phase, Master Developer shall have the option to extend the date for Completion of Development for such Phase by giving written notice to Agency of exercise of the option to extend. The Master Developer's option to extend may be exercised only one (1) time for any given Phase of the Project. The total extension period per Phase of the Project cannot exceed six (6) months. Master Developer shall have the right to determine in its absolute discretion the duration of any requested extension period, provided the extension shall be in whole months ranging from one (1) month to six (6) months. Each extension shall extend the schedule related to all subsequent Phases. The option exercise Notice shall be accompanied by payment of the appropriate extension fee based on the extension duration chosen by Master Developer as set forth in the following table: Duration Fee Per Period* One Month $10,000 Two Months $25,000 Three Months $40,000 Four Months $60,000 Five Months $80,000 Six Months $100,000 *The extension fee shall be increased by CPI every 12 months after the Agreement Date. Each written Notice of exercise of the option to extend shall also be accompanied by a revised Project Phasing and Extension Table reflecting the effect of the extension on the current as well as subsequent Phases of the Project. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —43— (f) Credit (Master Developer Property) To the extent any Phase of the Project on the Master Developer Property exceeds the minimum size for a Phase of the Project on the Master Developer Property (thirty (30) acres with respect to detached single family residential development or four (4) acres with respect to other development) (the "Credit Threshold "), Master Developer shall be entitled to a "carry forward credit" against the minimum size requirement and an extension of time for Commencement and Completion of Development of its next succeeding Phase or Phases as set forth in this Section 501.3(f). The carry forward credit is equal to the sum of the number of acres developed in any Phase plus any unused carry forward credit acres from a previous Phase or Phases, minus the Credit Threshold. If the unused carry forward credit acreage from the previous Phase or Phases equals or exceeds the minimum Phase size for the current Phase, then the Master Developer may elect to apply the carry forward credit acreage against its current Phase obligation. By so doing, the obligation for Commencement and Completion of Development of its current Phase is extended by the same number of months as is provided for Commencement and Completion of Development of that Phase. The Master Developer is entitled to a further carry forward credit against the minimum size requirement and a further extension of time for Commencement and Completion of Development of its next succeeding Phase or Phases until the carry forward credit is reduced below the applicable minimum Phase size. Thus, for example with regard to detached single family residential development, if Master Developer develops sixty (60) acres in its first Phase, it will have satisfied its obligation for Phase 1 (the 30 -acre minimum phasing requirement in Section 501.3) and it will obtain carry - forward credit toward its obligation for Phase 2. If instead Master Developer develops ninety (90) acres in its first Phase, it will have satisfied its obligation for Phase 1 (30 -acre minimum) and Phases 2 and 3. If instead Developer develops eighty (80) acres in its first Phase, it will have satisfied its obligation for Phase 1 (30 -acre minimum) and Phase 2 (because eighty (80) acres minus the Credit Threshold of thirty (30) acres leaves twenty (20) acres as a carry forward credit, which is sufficient to satisfy the 30 -acre minimum requirement for Phase 2), but Master Developer will not obtain any further carry forward credit toward its obligation for Phase 3 (since the twenty (20) acres carried forward from Phase 1 is not in excess of the Credit Threshold). The same rules for Phase credits shall apply to all subsequent Phases of development. In addition to the foregoing, "surplus" acres developed by Master Developer in a Phase that are not sufficient for a full Phase credit shall be cumulated and shall be available, as appropriate, for future Phase credits. Thus, for example, if Master Developer develops eighty (80) acres of residential land in its first Phase, thereby satisfying its first Phase requirement and giving it a fifty (50) acre carry forward credit, and thereafter Master Developer develops one hundred (100) additional acres of detached single family residential land thereby satisfying its second Phase performance requirement of thirty (30) acres Master Developer will have a 120 - acre carry forward credit (50 + (100 — 30)) which is sufficient for four (4) additional one Phase credits. Finally, Master Developer shall have the right but not the obligation hereunder to transfer to Developer and the Developer Property any Phase and acreage credits it may have accumulated with respect to the Master Developer Property. Thus, for example, if prior to Developer's completion of its required Phase C, Master Developer causes the permissive Commencement and Completion of Development of a portion of the Project on Master Developer Property, in lieu of taking credit for Commencement and Completion of Development of its first Phase against its Clean Anmd Restd DDA - LMM comments Draft 030211- —44- AGENDA.doc Phase Schedule obligation, Master Developer may elect, by delivery of Notice to Agency and Developer, to transfer a full Phase credit to Developer and the Developer Property, which shall then be deemed to have satisfied Developer's obligation for Commencement and Completion of Development of its Phase C. 502. Affordable Housing. 502.1 Exclusion from Project Developer and Master Developer acknowledge the Affordable Housing requirements imposed by Section 33413(b) of the Redevelopment Law on the portions of the Developer and Master Developer Properties which include Project Areas Il and 111. Notwithstanding the foregoing, Developer shall not have any right or obligation to develop Affordable Housing pursuant to this Agreement. However, Master Developer shall have the right, but not the obligation, to develop Affordable Housing in accordance with the terms and conditions set forth herein. To the extent that Master Developer constructs or otherwise provides Affordable Housing to satisfy Section 33413(b) of the Redevelopment Law in conjunction with its development of the Master Developer Property any such Affordable Housing shall not be included within the definition of the "Project" for purposes of this Agreement. 502.2 Requirements It is understood that all Affordable Housing shall be required to comply with applicable provisions of the Redevelopment Law in order to qualify for Agency's funding to Master Developer of Reimbursable Affordable Housing Costs from the Affordable Housing Portion of the Developer's Share of the Developer Property Tax Revenues and /or the Affordable Housing Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, or for Agency's funding to Master Developer of any other funds from Agency's Low and Moderate Income Housing Fund. Such applicable provisions shall include, without limitation, recordation and implementation of covenants regarding the term of the affordability restrictions (in accordance with Section 33334.3(f) of the Redevelopment Law) and appropriate occupancy and affordability restrictions (in accordance with Section 33413(b)(2) of the Redevelopment Law). Agency agrees to act reasonably and to cooperate with Master Developer to enable it to satisfy those requirements under the Redevelopment Law. In addition to the foregoing, it is understood that (i) subject to the discretionary approval of the Agency Board, Master Developer shall have the right to determine the type of ownership of the Affordable Housing units (whether for -sale or rental), location of the Affordable Housing units (whether offsite or on the Developer Property and /or the Master Developer Property) and, to the maximum extent permitted by the Redevelopment Law, the size, number of bedrooms, amenities, and occupancy standards for said units, and (ii) Master Developer shall have the right to determine the phasing of Affordable Housing units developed pursuant to the requirements of Section 33413(b) of the Redevelopment Law on the Developer Property and Master Developer Property, respectively; provided, however that Master Developer must comply with any phasing plan included in any Affordable Housing Project Proposal submitted to and approved by the Agency. Clean Anwd Restd DDA - LMM comments Draft 030211 - AGENDA.doe —45— Finally, in the case of for -sale units, subject to the discretionary approval of the Agency Board, Agency agrees to cooperate with Master Developer in developing an equity sharing arrangement consistent with Section 33413(c)(2) of the Redevelopment Law that permits sale of Affordable Housing Units whereby the owner of an Affordable Housing unit may sell such unit at a price in excess of the maximum affordable housing cost otherwise permitted if such owner pays to Agency a portion of the profit on the sale, which profit Agency shall then deposit into its Low and Moderate Income Housing Fund to be used only for the purposes allowable under the Redevelopment Law; provided that Master Developer acknowledges and agrees that if required to maintain an inclusionary unit, Master Developer shall replace the unit without financial assistance from Agency's Low and Moderate Income Housing Fund. 502.3 Submission of Affordable Housing Project Proposal Master Developer shall submit an Affordable Housing Project Proposal to Agency's Executive Director in connection with any contemplated development of Affordable Housing by Master Developer. Agency's Executive Director, legal counsel and financial consultants shall review and approve or disapprove any such Affordable Housing Project Proposal within thirty (30) calendar days after receipt of a Notice of request for approval from Master Developer. If the Agency's Executive Director, legal counsel and financial consultants reasonably determines that the information provided by Master Developer with regard to the proposed Affordable Housing is insufficient to enable the Executive Director to approve of and recommend that the Affordable Housing Project Proposal be submitted to the Agency Board, the Executive Director shall notify Master Developer as soon as reasonably practicable, and in no event later than thirty (30) calendar days after his /her receipt of the initial submittal. Agency's Executive Director shall not unreasonably withhold or condition approval and recommendation of an Affordable Housing Project Proposal to be considered by the Agency Board. Any disapproval of a requested Affordable Housing Project Proposal by the Executive Director, legal counsel and financial consultants shall be in writing and shall specify the reasons for the disapproval and, if applicable, the conditions required to be satisfied in order to obtain approval for submission to the Board. In the event the Agency's Executive Director, financial consultants or legal counsel disputes the completeness of an Affordable Housing Project Proposal, and /or the calculation of Reimbursable Affordable Housing Costs, said Parties shall meet and confer in a good faith effort to resolve the dispute. In the event said Parties are unable to resolve said dispute within thirty (30) calendar days, either such Party shall be entitled to submit said dispute to binding arbitration in accordance with Section 809 of this Agreement. Master Developer acknowledges and agrees that the Agency Board retains discretion to approve, conditionally approve or deny an Affordable Housing Project Proposal, which such discretion shall not be arbitrarily exercised. The Agency Board shall state the reasons for its decisions. Master Developer further acknowledges and agrees that any Affordable Housing Project Proposal shall remain subject to all other City land use and entitlement requirements. 502.4 Cooperation In addition to the foregoing, upon the request of Master Developer and the discretionary approval of the Board of an Affordable Housing Project Proposal, Agency agrees to cooperate and exercise commercially reasonable efforts to assist Master Developer, as applicable, (a) in Clean Anwd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —46— obtaining approvals for tax credit applications, (b) by supporting the issuance of tax exempt bonds, and /or (c) obtaining other federal, State and local funds that may be available from time to time for Affordable Housing purposes, with the understanding that Agency makes no representation or warranty that such efforts will be successful and Agency shall have no obligation for any costs or liabilities with respect thereto (other than as otherwise expressly set forth in this Agreement). 503. Extensions of Time. Extensions of time for completion of any Phase hereunder shall be permitted due solely to Force Majeure Delays in accordance with Section 903 or as the result of the purchase of an option to extend in accordance with Section 501.2(e). Notwithstanding the foregoing, Agency's Executive Director shall have the authority, in his or her sole discretion, to approve extensions of time not in excess of thirty (30) days to complete a Phase. 504. General. Once each Phase of development is commenced, it shall be diligently and continuously pursued to completion, except when delays are due to causes beyond the control and without the fault of Developer or Master Developer, as applicable, and as set forth in Section 903. 505. Land Use and Development Entitlements, Permits, and Approvals. From and after the Agreement Date, Agency, Developer and /or Master Developer shall cooperate with the City and /or the Santa Ana Watershed Project Authority in the processing of any required Section 404 Permit amendments beyond those obtained by Original Developer. In addition to the foregoing, before beginning any work with respect to any portion of the Project within the Specific Plan Area, Developer or Master Developer, as applicable, shall, at its sole cost and expense, secure or cause to be secured any and all other land use and other development entitlements, permits, and approvals which may be required by the City and any other governmental agency with jurisdiction over such work in accordance with any applicable Governmental Requirements. Agency shall cooperate with Developer or Master Developer, as applicable, in an effort to cause the City and any other governmental agency with jurisdiction to expedite the processing of all required applications, environmental reviews, plans, and permits. At Developer's or Master Developer's request, Agency shall request the City to retain contract planning/ engineering/ plan checking/ inspection services at Developer's expense to assist in expediting such review by the City. Except as may be required by applicable provisions of the Redevelopment Law, Agency shall rely upon the City for all Project development and reviews and shall not impose any additional or different regulatory requirements from those imposed by the City in the exercise of its legislative discretion. 506. Cost of Development. All of the costs of acquiring the portions of the Specific Plan Area to be acquired by Developer and Master Developer and all costs of site preparation and planning, designing, and Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —47 developing the portion of the Project thereon and with respect thereto shall be borne solely by Developer or Master Developer, as applicable, except as otherwise expressly set forth herein. 507. Insurance Requirements. Prior to Commencement of any Phase of the Project on any parcel or lot within the Specific Plan Area and until Agency issues its Release of Project Development Covenants with respect to such parcel or lot, Developer or Master Developer, as applicable, shall obtain and maintain or shall cause its contractor to obtain and maintain a standard form commercial general liability policy in the minimum amount of Three Million Dollars ($3,000,000) combined single limits, including contractual liability. Such policy or policies shall be written on an occurrence form. Developer or Master Developer, as applicable, shall also obtain and maintain throughout such periods of time a comprehensive automobile liability policy in the amount of Three Million Dollars ($3,000,000), combined single limits, and shall furnish or cause to be furnished to Agency evidence satisfactory to Agency that Developer or Master Developer and any contractor with whom it has contracted for the performance of work pursuant to this Agreement carries workers' compensation insurance as required by law. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Developer or Master Developer, as applicable, shall furnish a notarized certificate of insurance countersigned by an authorized agent of the insurance carrier on a form reasonably approved by Agency setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the City and Agency and their respective officers and employees as additionally insured parties under the policy. The certificate by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify the City and Agency of any material change, cancellation, or termination of the coverage at least thirty (30) calendar days in advance of the Agreement Date of any such material change, cancellation or termination. Coverage provided hereunder by Developer or Master Developer shall be primary insurance and shall not be contributing with any insurance, self - insurance, or joint self - insurance maintained by the City or Agency. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of the City and Agency. The required certificate shall be furnished by Developer or Master Developer, as applicable, to Agency prior to Commencement of any Phase of the Project. 508. Rights of Access. Prior to Agency's issuance of a Release of Project Development Covenants with respect to any legal parcel or lot within the Specific Plan Area acquired and developed by Developer or Master Developer pursuant to this Agreement, and for the purpose of enabling Agency to verify Developer's or Master Developer's compliance with this Agreement, representatives of Agency shall have the right of access to such parcels or lots, without charges or fees, during normal construction hours during the period of development, so long as Agency's representatives comply with all safety rules of Developer or Master Developer and its contractor(s). Agency (or its representatives) shall, except in emergency situations, notify Developer or Master Developer and its contractor(s) prior to exercising its rights pursuant to this Section 508. Nothing herein shall be deemed to limit the ability of the City to conduct code enforcement and other administrative inspections of such portions of the Specific Plan Area in accordance with applicable law. Agency shall indemnify, defend, and hold harmless Developer or Master Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc 48 Developer, as applicable, from and against any and all claims, liabilities, and losses arising out of Agency's exercise of this right of access; provided, it is understood that Agency does not by this Section 508 intend to assume any responsibility or liability for a negligent inspection or failure to inspect. 509. Compliance With Laws; Indemnity; Waiver. Developer shall carry out the work of developing the portion of the Project on the Developer Property and Master Developer shall carry out the work of the developing the portion of the Project on the Master Developer Property, both in conformity with all applicable Governmental Requirements; provided, however, that nothing in this Agreement constitutes a waiver by Developer or Master Developer of its right to challenge the validity of any such Governmental Requirements on their face or as applied to Developer or Master Developer or the portions of the Specific Plan Area acquired and developed by Developer or Master Developer. Not by way of limitation of the foregoing, Developer and Master Developer agree that the requirements of California Labor Code Sections 1720, et seq. and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et M. (the "Prevailing Wage Laws ") may require the payment of prevailing wage rates and the performance of other requirements with respect to Developer's and Master Developer's development of all or a portion of their respective portions of the Project. Agency, Developer, and Master Developer agree that the Affordable Housing and subsequent development that may occur on the Developer Property and /or Master Developer Property after the Release(s) of Project Development Covenants is (are) issued are not subject to the Prevailing Wage Laws solely as a result of the terms and conditions of this Agreement, but Agency makes no representation or warranty in that regard. If Developer or Master Developer believes in good faith that the Prevailing Wage Laws do not apply to particular development activities occurring on or with respect to the Developer Property or Master Developer Property, as applicable, Agency agrees to provide reasonable cooperation and assistance to Developer or Master Developer, as applicable, in that regard, provided that such assistance shall be at no cost to Agency and the ultimate responsibility and risk for complying with applicable Governmental Requirements with respect to the Prevailing Wage Laws shall remain with Developer and Master Developer, not Agency. Developer and Master Developer shall each defend, indemnify, and hold harmless Agency, the City, and their respective elected officials, officers, employees, volunteers, agents, and representatives (collectively, the "Indemnified Parties ") from and against any and all liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and costs) (collectively, "Claims "), arising out of or in any way connected with (i) Developer or Master Developer's breach of its obligation to comply with all applicable Governmental Requirements; or (ii) any third party claims for injury to person or property resulting from Developer's or Master Developer's ownership of the Developer Property or Master Developer Property, respectively, or the construction of the Project thereon. Additionally, Developer shall defend, indemnify and hold harmless the Indemnified Parties from and against any Claims related directly or indirectly to the assignment of rights and /or obligations of the 2002 DDA to Bank and /or Developer. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —49— Developer, Master Developer and Agency hereby waive, release, and discharge forever each other from any and all Claims arising out of or in any way connected with the 2002 DDA prior to the Agreement Date, except for any environmental claims which may arise with respect to the Agency Property, the Developer Property or the Master Developer Property. Developer, Master Developer and Agency are aware of and familiar with the provisions of Section 1542 of the California Civil Code, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." To the extent applicable to this Section 509, Developer, Master Developer and Agency hereby waive and relinquish all rights and benefits which they may have under Section 1542 of the California Civil Code. Developer's Initials Master Developer's Initials Agency Initials 510. Developer's and Master Developer's Obligations with Respect to Hazardous or Toxic Substances or Materials. Developer with respect to the Developer Property and Master Developer with respect to the Master Developer Property shall, at its sole cost and expense, promptly take: (i) all actions required by any Environmental Laws; (ii) all actions necessary to prepare the soil on such property for the development required hereunder; and (iii) all actions necessary to make full economic use of such property pursuant to this Agreement for the purposes described in this Agreement, which actions, requirements, or necessities arise from the presence upon, about or beneath such property of any Hazardous or Toxic Substances or Materials regardless of when such Hazardous Materials were introduced to the Agency Property or Stadium Parking Lot, as applicable, and regardless of who is responsible for introducing such Hazardous Materials to such lot or parcel. 510.1 Duty to Prevent Hazardous Materials Contamination. Developer and Master Developer as applicable shall take all reasonably necessary precautions in conjunction with its ownership, use, and development of the Developer Property or Master Developer Property, respectively to prevent the release of any Hazardous or Toxic Substances or Materials into the environment. Such precautions shall include compliance with all Environmental Laws applicable to such parcel or lot. In addition, Developer shall install and utilize such equipment and implement and adhere to such procedures in conjunction with its ownership, use, and development of such parcel or lot as are consistent with Environmental Laws in respect of the disclosure, storage, use, removal, and disposal of Hazardous or Toxic Substances or Materials. Clean Amnd Restd DDA - LMM conunents Draft 030211 - AGGNDA.doc —50— 510.2 Environmental Inquiries. Developer with respect to the Developer Property and Master Developer with respect to the Master Developer Property shall notify Agency and provide to Agency copies of the following environmental permits, disclosures, applications, entitlements, or inquiries relating to such lot or parcel: notices of violation, notices to comply, citations, inquiries, clean -up or abatement orders, cease and desist orders, reports filed pursuant to self - reporting requirements, and reports filed or applications made pursuant to any Environmental Laws relating to Hazardous or Toxic Substances or Materials or underground tanks, and report to Agency, as soon as possible after each incident concerning or relating to such parcel or lot, any unusual, potentially important incidents, including but not limited to, the following: (a) All required reports of releases of Hazardous or Toxic Substances or Materials, including notices of any release of Hazardous or Toxic Substances or Materials as required by any Environmental Laws; (b) All notices of suspension of any permits; (i) All notices of violation from federal, state or local environmental authorities; (ii) All orders under the State Hazardous Waste Control Law and the State Hazardous Substance Account Act and corresponding federal statutes concerning investigation, compliance schedules, clean up, or other remedial actions; (iii) All orders under the Porter - Cologne Act, including corrective action orders, cease and desist orders, and clean -up and abatement orders; (iv) Any notices of violation from OSHA or Cal -OSHA concerning employees' exposure to Hazardous or Toxic Substances or Materials; (v) All complaints and other pleadings filed against Developer and /or Master Developer relating to the Developer's and /or Master Developer's storage, use, transportation, handling, or disposal of Hazardous or Toxic Substances or Materials on or about such property. In the event of a release of any Hazardous or Toxic Substances or Materials onto or from such Developer and /or Master Developer Property, Developer and /or Master Developer shall, as soon as possible after the release, furnish to Agency a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon Agency's request, Developer and /or Master Developer shall furnish to Agency a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting such property including, but not limited to, all permit applications, permits, and reports, including without limitation those reports and other matters which may be characterized as confidential. Clean Amnd Restd DDA - LMM comments Draft 030211- —51 — AGENDA.doc 511. Release of Project Development Covenants. Following Developer's or Master Developer's Completion of Development of a Phase of the Project in accordance with this Agreement, and timely issuance of its Notice of Completion, Agency's Executive Director, on behalf of Agency, shall execute in recordable form and deliver to Developer or Master Developer, as applicable, a Release of Project Development Covenants for said Phase. Developer or Master Developer, as applicable, shall cause such Release of Project Development Covenants to be recorded in the official records of Riverside County. Agency shall not unreasonably withhold or condition such Release of Project Development Covenants. Failure to substantially and timely complete the Phase Scope of Work described in the Notice of Right to Commence and as set forth in the Notice of Completion shall be the sole basis for withholding Release of Project Development Covenants with respect to any Phase. The Release of Project Development Covenants shall constitute a conclusive determination of satisfactory completion of the Phase Scope of Work with respect to the affected parcel(s) or lot(s) comprising the Phase and the Release of Project Development Covenants shall so state. After the recordation of a Release of Project Development Covenants in the official records of Riverside County for a particular Phase within the Developer Property or Master Developer Property, as applicable, any party then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in such Phase shall not (because of such ownership, purchase, lease, or acquisition) incur any obligation or liability under this Agreement except for those continuing covenants that run with the land that are set forth in Sections 701 -704 of this Agreement. The Release of Project Development Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of Developer or Master Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the work of developing the portion of the Project. The Release of Project Development Covenants is not a notice of completion as referred to in Section 3093 of the California Civil Code. 512. Estoppels. At the request of Developer or Master Developer or any then current or prospective holder of a mortgage or deed of trust, Agency shall, from time to time and upon the request of Developer, Master Developer, or such holder, timely execute and deliver to Developer or Master Developer or such holder a written statement of Agency that no Default or breach exists (or would exist with the passage of time, or giving of notice, or both) by Developer or Master Developer under this Agreement, if such be the case, and certifying as to whether or not Developer or Master Developer has at the date of such certification complied with any obligation of Developer or Master Developer hereunder as to which such holder may inquire. The form of any estoppel letter shall be prepared by the holder or Developer or Master Developer, as applicable, and shall be in a form acceptable to Agency's legal counsel and shall be at no cost to Agency. Agency's obligation to provide an estoppel letter shall terminate as to any matters covered by a Release of Project Development Covenants on the date Agency issues such Release of Project Development Covenants pursuant to Section 511 of this Agreement. At the request of Agency, Developer or Master Developer shall, from time to time and upon the request of Agency, timely execute and deliver to Agency a written statement of Developer or Master Developer that no Default or breach exists (or would exist with the passage Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -52 of time, or giving of notice, or both) by Agency under this Agreement, if such be the case, and certifying as to whether or not Agency has at the date of such certification complied with any obligation of Agency hereunder as to which such holder may inquire. The form of any estoppel letter shall be prepared by Agency and shall be in a form acceptable to Developer's or Master Developer's legal counsel as the case may be and shall be at no cost to Developer or Master Developer. Developer's and Master Developer's obligation to provide an estoppel letter shall terminate as to any parcel or lot for which Agency has issued a Release of Project Development Covenants pursuant to Section 511 of this Agreement. 600. FINANCIAL PROVISIONS 601. Agency Payment to Developer of Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and Agency Payment to Master Developer of Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues. In consideration of Developer's and Master Developer's performance of their respective obligations set forth in this Agreement and in recognition of the extraordinary costs to be incurred by each of them for planning, design, engineering, site preparation, environmental mitigation, and the processing of applications for the necessary approvals needed to develop the Project from a variety of federal, state and local governmental agencies, and in consideration of the significant risks and high capital requirements of such an undertaking, Agency hereby agrees as follows: 601.1 Accrual of Amounts Payable to Developer. Agency shall accrue for payment to Developer an amount equal to the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues generated from each parcel or lot that satisfies the definition of "Developer Property," commencing on the date Original Developer acquired title to said parcel or lot and continuing (unless this Agreement is earlier terminated) until July 2033 as to Project Area II Tax Revenues and September 2037 as to Project Area III Tax Revenues, the last date Agency is entitled to collect Tax Revenues from the Project Areas in accordance with the applicable Redevelopment Plans. Such accrued amounts less the City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues, if any, shall become payable by Agency to Developer upon completion of each Phase in accordance with Section 602. Subject to payment of Unpaid Tax Revenues, if any, Agency shall make payments of the City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues, if any, directly to City, subject to Section 605. Agency's obligation to pay the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues to Developer shall be a special and limited obligation of Agency payable from the sole source of Developer Property Tax Revenues. Said payment obligations are secured by a pledge of such portions of the Tax Revenues as set forth in Section 606 of this Agreement. Clean Anmd Restd DDA - LMM connneMs Draft 030211 - AG HNDA.doc -53- 601.2 Accrual of Amounts Payable to Master Developer; Master Developer Payment Cap. Agency shall accrue for payment to Master Developer an amount equal to the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues generated from each parcel or lot that satisfies the definition of "Master Developer Property," commencing on the date Master Developer (including any Affiliate of Master Developer or any successor or assignee of any of them) acquires title to said parcel or lot and continuing (unless this Agreement is earlier terminated) until the last date Agency is entitled to collect Tax Revenues from the Project Areas in accordance with the applicable Redevelopment Plans. Such accrued amounts less the City's Share of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, if any, shall become payable by Agency to Master Developer upon completion of the first Phase of the Project up to the amount of the Master Developer Payment Cap. Agency shall make payments of the City's Share of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, if any, directly to City, subject to Section 605. Agency's obligation to pay the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues to Master Developer shall be a special and limited obligation of Agency payable from the sole source of Master Developer Property Tax Revenues. Said payment obligations are secured by a pledge of such portions of the Tax Revenues as set forth in Section 606 of this Agreement. (a) Notwithstanding any other provision set forth in this Agreement to the contrary, the maximum amount of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues to be paid to Master Developer hereunder from time to time shall not exceed the Master Developer Payment Cap. For purposes of this Agreement, it is understood that in calculating the balance remaining of the Master Developer Payment Cap, reductions of the Master Developer Payment Cap shall be based on the amount of funds actually paid to and received by Master Developer, so that, for example, as Agency issues and sells Bonds in accordance with Section 607, the reductions of the Master Developer Payment Cap shall be based upon the proceeds of the Bonds actually paid to and received by Master Developer and shall not include any amount attributable to the costs of issuance of the Bonds, capitalized interest, or the like. (b) During the term of this Agreement, Master Developer shall be entitled to periodically submit to Agency's Executive Director for approval a statement or statements identifying the cumulative Master Developer Costs incurred by Master Developer for a Phase (each, a "Statement of Master Developer's Costs "). Each Statement of Master Developer's cost, shall include, as applicable, the following information: (i) the written contract(s), purchase order(s), or other evidence of commitment, including any amendment(s) or change order(s) relating thereto, pursuant to which the Master Developer Costs were incurred (to the extent not previously provided); (ii) a narrative or line item identification of the particular expenses Master Developer has incurred, with sufficient detail to enable Agency's Executive Director to verify the eligibility of such expenses (or portions thereof) for payment or reimbursement; and (iii) the invoices, copies of canceled checks, or other documents evidencing Master Developer's payment of said expenses. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGGNDA.doc —54— (c) Agency's Executive Director shall not unreasonably withhold or condition his /her approval of any such Statement of Master Developer's Costs. Notwithstanding the foregoing, the Executive Director shall have the right to submit the Statement of Master Developer's Costs and the supporting documentation to the Agency's financial consultant(s) for the consultant's review and approval. If the Executive Director or the Agency's financial consultant determines that Master Developer is not entitled to have its Statement of Master Developer's Costs approved in full, the Executive Director shall approve all items which are eligible for approval and he /she shall provide Master Developer with Notice within thirty (30) calendar days after receipt of said statement identifying the items which have not been approved, including the specific reasons for such determination and any additional information that may be reasonably required by the Executive Director or the Agency's financial consultant in order for Master Developer to obtain an approval (or an approval of any disapproved items). After Master Developer provides such additional information that Agency's Executive Director or the Agency's financial consultant may have reasonably requested, such information shall be reviewed by the Executive Director or the Agency's financial consultant in the same manner and within the same time frame for review of Master Developer's initial submittal. (d) In the event Agency's Executive Director or Agency's financial consultant disapproves, in whole or part, one or more of Master Developer's Statements of Master Developer's Costs, said Parties shall meet and confer in a good faith effort to resolve the dispute. In the event said Parties are unable to resolve said dispute within thirty (30) calendar days, either of such Party shall be entitled to submit said dispute to binding arbitration in accordance with Section 809 of this Agreement. 602. Reporting and Payment of Developer's Share of the Developer Property Tax Revenues and Master Developer's Share of the Master Developer Property Tax Revenues. 602.1 Reporting of Developer's Share of the Developer Property Tax Revenues and Master Developer's Share of the Master Developer Property Tax Revenues. Prior to the Agreement Date, Agency has provided to Developer and Master Developer the complete written schedule identifying the Base Year assessed property values for every parcel or lot within the Specific Plan Area prepared by Harris & Associates and utilized by the Agency's independent financial consultant in the preparation of the Annual TI Statements. Agency shall retain an independent financial consultant to verify and calculate the amount of the Developer's Share of the Developer Property Tax Revenues, the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues, the Affordable Housing Portion of the Developer's Share of the Developer Property Tax Revenues, the City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues, the Master Developer's Share of the Master Developer Property Tax Revenues, the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, the Affordable Housing Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, the City's Share of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, the Specific Plan Area Tax Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —55— Revenues, the Affordable Housing Portions of the Specific Plan Area Tax Revenues, the Pass - Through Portion of the Specific Plan Area Tax Revenues, the Net Available Specific Plan Area Tax Revenues (for the balance of the properties in the Specific Plan Area, excluding the Developer Property and the Master Developer Property), and funds available for Extraordinary Infrastructure Costs reimbursement on an annual and cumulative basis for each Fiscal Year. Prior to the Agreement Date, Agency has provided Developer and Master Developer with its independent financial consultant's updated accountings (itemized for each category identified in the preceding sentence) for Fiscal Years 2002 -2003 through 2008 -2009. Each February during the term of this Agreement, Agency shall cause its consultant to provide Developer and Master Developer with a statement of Agency's total Tax Revenues for Project Areas II and III for the immediately preceding Fiscal Year (itemized for each category identified in the preceding paragraph) (the "Annual TI Statement "). The Annual TI Statement shall also include the amount of the Pledged Housing Funds available to date for the amount of the approved Master Developer Reimbursable Affordable Housing Costs incurred to date, determined in accordance with Section 603, the amount of the approved Extraordinary Infrastructure Costs incurred to date, the amount of Agency's Accrued and Unpaid Obligations, determined in accordance with Section 605, the payments required to be made by Agency in that Fiscal Year to pay its First Priority Obligations (with sufficient detail to allow Developer and Master Developer to understand the sub -total of all payments related to each individual component comprising Agency's First Priority Obligations as defined in Section 100), and the remaining amount of Tax Revenues available for payment to Developer and Master Developer. In addition, each Annual TI Statement shall identify the Agency's Accrued Housing Fund Deficit, the amount of the Agency's obligation to the City under the City Reimbursement Agreement and, commencing in the eleventh (1 It") full Fiscal Year following the Fiscal Year in which the Phase 1 Completion Date occurs, the allocation as between Developer and Master Developer of any payments Agency elects to apply to reduce the Agency's Accrued Housing Fund Deficit and to reduce the Agency's obligation under the City Reimbursement Agreement (which allocations shall be based upon a fraction, the numerator of which is the total assessed value of the Developer Property or the Master Developer Property, as the case may be, and the denominator of which is the combined total assessed value of both the Developer Property and the Master Developer Property for such Fiscal Year). The portion of Agency's actual and reasonable cost for having its financial consultant provide the Annual TI Statement and verify and calculate the amount of the payments required to be made to Developer and Master Developer hereunder, which costs shall not exceed the amount customarily charged for comparable services by competent, non - affiliated financial consultants performing similar services for governmental clients in Los Angeles- Orange- Riverside County area of California, shall be paid from amounts due Developer and Master Developer hereunder with such payments offset or credited against future payments due by Agency to Developer and /or Master Developer, as applicable (with each such Party responsible for the pro rata portion of said cost based on its share of the total payments of Tax Revenues to be made by Agency to it for that Fiscal Year). In the event either Developer or Master Developer disagrees with the Agency consultant's accounting, it shall notify Agency in writing and thereafter the Parties shall meet and confer in a good faith effort to resolve the dispute. In the event the Parties are unable to Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —56— resolve said dispute with sixty (60) calendar days, any Party shall be entitled to submit said dispute to binding arbitration in accordance with Section 809 of this Agreement. Notwithstanding the foregoing, any given Annual TI Statement shall be deemed final and accepted by all parties upon such date as is determined pursuant to any statute of limitations determined in accordance with any applicable California Civil Code Sections. 602.2 Payment of Developer's Share of the Developer Property Tax Revenues and Master Developer's Share of the Master Developer Property Tax Revenues. Agency shall pay tax increment due on completed Phases to Developer and Master Developer thirty (30) days after Agency's issuance of an Annual TI Statement; provided, however, that (i) Agency shall be entitled to withhold payments to Developer during any period that an Event of Default has occurred and is continuing with respect to Developer hereunder (unless bonds have been issued on the basis of such payments being made); (ii) Agency shall be entitled to withhold payments to Master Developer during any period that an Event of Default has occurred and is continuing with respect to Master Developer hereunder (unless bonds have been issued on the basis of such payments being made); (iii) any payments withheld pursuant to clause (i) or (ii) shall be paid to the appropriate Party (without interest) when the Default is cured; (iv) the first payment to Developer shall not be due until the earlier of the date a Release of Project Development Covenants for Phase 1 of the Project on the Developer Property is recorded in the official records of Riverside County or the date on which Agency receives the net proceeds from the sale of Bonds pursuant to Section 607 of this Agreement; and (v) the first payment to Master Developer shall not be due until the earlier of the date Agency issues a Release of Project Development Covenants for the first Phase of the portion of the Project to be developed on the Master Developer Property is recorded in the official records of Riverside County or the date on which Agency receives the net proceeds from the sale of Bonds pursuant to Section 607 of this Agreement. In addition, provided no Event of Default has occurred or is continuing hereunder, Accrued Tax Increment Revenue for a particular Phase, as determined in accordance with Sections 601.1 and 601.2, shall become payable (a) to Developer thirty (30) calendar days after recordation of a Release of Project Development Covenants with respect to the legal parcel(s) or lot(s) within a completed Phase of the Project on the Developer Property; and (b) to Master Developer thirty (30) calendar days after recordation of a Release of Project Development Covenants with respect to the first Phase of the Project on the Master Developer Property. In the event that, after Agency's accounting has been completed and any such payments have been made, Agency's financial consultant determines that an adjustment should be made, Agency shall promptly provide such information to Developer and Master Developer and the adjustment (either an additional payment by Agency, a credit or debit against any accrued and unpaid amount owing by Agency to Developer and /or Master Developer, or a refund by Developer and /or Master Developer) shall be made within thirty (30) calendar days after such information is provided. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —57 603. Pledge of Affordable Housing Portion of Developer's and Master Developer's share of the Developer and Master Developer Property Tax Revenues; Reimbursable Affordable Housing Costs. Agency hereby agrees, subject to the terms of Section 502, to reasonably consider any Affordable Housing Project Proposal submitted by Master Developer in accordance with all applicable Governmental Requirements. In connection therewith, Agency shall annually pledge the Affordable Housing Portion of the Developer's Share of the Developer Property Tax Revenues and the Affordable Housing Portion of the Master Developer's Share of the Master Developer Property Tax Revenues (collectively, the "Pledged Housing Funds ") for use by Master Developer in the development of Affordable Housing in accordance with the terms and conditions of a Board - approved Affordable Housing Project Proposal. In accordance with the Redevelopment Law, the right to funding from any other unpledged portion of the Agency's Low and Moderate Income Housing Fund shall be on a "first come - first served" basis and subject to available funds and the discretionary approval of the Agency Board. Master Developer shall have a period of five (5) years after the Agreement Date (the "Initial Period ") to submit to Agency for approval one or more Affordable Housing Project Proposals. If Master Developer fails to submit and obtain approval of an Affordable Housing Project Proposal within the Initial Period, the pledge described in the immediately preceding paragraph shall automatically terminate and the Pledged Housing Funds shall revert to unpledged amounts in the Agency's Low and Moderate Income Housing Fund. Neither the Executive Director, Agency's financial consultants nor its legal counsel shall be required to submit a Master Developer Affordable Housing Project Proposal to the Board if an Event of Default with respect to Master Developer has occurred and is continuing hereunder. If an Affordable Housing Project Proposal is approved by the Agency Board during the Initial Period, the pledge of housing funds described in the first paragraph of this Section and the right of Master Developer to submit additional Affordable Housing Project Proposals shall be extended (the "Extension Period ") for a minimum of three (3) more years from the expiration of the Initial Period and a maximum of the earlier of (i) five (5) years from the expiration of the Initial Period or (ii) the date the cumulative Reimbursable Affordable Housing Costs awarded to Master Developer are paid in full. Thereafter, the pledge and the right of Master Developer to submit additional Affordable Housing Project Proposals shall continue to be extended for additional Extension Periods provided that Master Developer submits and obtains approval of an Affordable Housing Project Proposal prior to the expiration of any Extension Period. Upon timely submission of a complete Affordable Housing Project Proposal approved by the Executive Director, Agency Counsel and Agency's financial consultants, the Agency Board shall consider assisting the proposed project in an amount equal to the amount of the Reimbursable Affordable Housing Costs as determined in accordance with this Section 603. If such financial assistance is approved by the Agency Board, Agency's obligation to fund any Reimbursable Affordable Housing Costs to Master Developer shall be a special and limited obligation of Agency payable first from the Pledged Housing Funds. Thereafter, Agency may either use other funds available in Agency's Low and Moderate Income Housing Fund or future additions to the Pledged Housing Funds to fund the Reimbursable Affordable Housing Costs, until the same has been paid in full. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —58- If the Agency approves an Affordable Housing Project Proposal, the approved amount of Reimbursable Affordable Housing Costs shall be funded by the Agency in such a manner as is permitted by the Redevelopment Law and negotiated with Master Developer (such as a grant, construction loan, land write down or combination of methods permitted by the Redevelopment Law). If a loan for construction costs is made by Agency, prior to disbursement of any portion of the Agency loan funds, Master Developer shall submit the following information: (i) the written contract(s), purchase order(s), or other evidence of indebtedness, including any amendment(s) or change order(s) relating thereto, pursuant to which the costs were incurred (to the extent not previously provided); (ii) a narrative or line item identification of the particular expenses Master Developer has incurred, with sufficient detail to enable Agency's Executive Director to verify the eligibility of such expenses (or portions thereof) for payment or reimbursement; and (iii) the invoices, copies of canceled checks, or other documents evidencing Master Developer's payment of said expenses. If Master Developer requests approval for Reimbursable Affordable Housing Costs in excess of fifty percent (50 %) of its total reasonable direct and indirect costs incurred to provide Affordable Housing within the City of Lake Elsinore, Master Developer shall submit substantial evidence that it tried to secure additional financing for the requested reimbursement of costs in excess of fifty percent (50 %) of total costs and was not successful. Such evidence shall be sufficient to enable Agency to make the required finding set forth in Section 33334.30) of the Redevelopment Law. In addition to the foregoing, and to the maximum extent permitted by law, if (a) on a cumulative basis Master Developer's timely approved Reimbursable Affordable Housing Costs demonstrate that Master Developer has validly requested (in one or more complete Affordable Housing Project Proposals) and been approved for Reimbursable Affordable Housing Costs in excess of the cumulative sum of the Pledged Housing Funds accounted for from the first Fiscal Year that tax increment is accrued hereunder through the Fiscal Year in question (such excess shall be referred to herein as "Excess Affordable Housing Costs "), and (b) the Excess Affordable Housing Costs are not otherwise funded by Agency from other constituent components of its Low and Moderate Income Housing Fund, then, upon the written instruction of Master Developer and /or Developer: (i) Agency shall transfer an amount equal to 100% of said Excess Affordable Housing Costs from a non - Housing Fund account accrued for the benefit of Developer and /or Master Developer, as applicable, to Agency's Low and Moderate Income Housing Fund and reduce the Agency's Accrued Housing Fund Deficit in effect as of the Agreement Date that constitutes a limited part of Agency's First Priority Obligations hereunder commencing in the eleventh full Fiscal Year after the Phase 1 Completion Date (see clause (vii) of the definition of "First Priority Obligations" and Section 204.1(h)); (ii) the Five Hundred Thousand Dollars ($500,000) per Fiscal Year component of the Eight Hundred Thirty -Three Thousand Three Hundred Thirty -Three Dollars and Thirty -Three Cents ($833,333.33) allocation toward Agency's First Priority Obligations that commences in the eleventh full Fiscal Year following the Fiscal Year in which the Phase 1 Completion Date occurs shall be reduced by fifty percent (50 %) of the Excess Affordable Housing Costs; (iii) the Excess Affordable Housing Costs shall be funded to Master Developer hereunder at the same time that the Reimbursable Affordable Housing Costs are funded; and (iv) Agency shall receive a dollar- for - dollar credit against its obligation to pay the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and /or the Unrestricted Portion of the Master Developer's Share of the Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —59— Master Developer Property Tax Revenues, as applicable, such that the total amount of the funds available to Developer and Master Developer shall be unchanged and only the allocation of those payments (between the Affordable Housing Portion of the Developer's or Master Developer's share of Developer's or Master Developer's Property Tax Revenues and a non - Housing Fund account) shall be affected. Thus, for example, if prior to the eleventh full Fiscal Year following the Fiscal Year in which the Phase 1 Completion Date occurs, the Agency Board has approved Excess Affordable Housing Costs in the sum of Two Million Dollars ($2,000,000), (w) Agency shall transfer said amount into its Low and Moderate Income Housing Fund (from a non - Housing Fund account), (x) Agency shall reduce its Accrued Housing Fund Deficit as of the Agreement Date by said amount, (y) One Million Dollars ($1,000,000) of said Excess Affordable Housing Costs shall be credited against Agency's First Priority Obligations as referred to in clause (vii) of the definition of that term, and (z) the total funds available to Developer and Master Developer shall be the same. For purposes of this Section, a "non- Housing Fund account" includes an amount unpaid but accrued as payable to Developer or Master Developer under this Agreement, for a Phase not yet completed, such as the Unrestricted Portion of Developer's or Master Developer's share of Developer or Master Developer Property Tax Revenues. Nothing in the preceding paragraphs shall authorize Agency to deduct amounts from any non - Housing Fund account, if the effect of such deduction is to reduce the amount of the reimbursements that would otherwise be made to Developer for Extraordinary Infrastructure Costs pursuant to Section 604.2. 604. Reimbursement of Extraordinary Infrastructure Costs. 604.1 Calculation of Extraordinary Infrastructure Costs. In addition to the payments to be made by Agency to Developer and Master Developer pursuant to Sections 602 -603, Agency shall pay or reimburse to Developer the Extraordinary Infrastructure Costs in accordance this Section 604. (a) Costs Incurred Prior to Agreement Date. The Moote Group, or, at Developer's election, another qualified, independent, third -party cost engineering company with a minimum of five (5) years experience working with both public agencies and developers, shall be retained by and at the expense of Developer to determine, in consultation with City, Agency and Developer, those items eligible for reimbursement under the definition of Extraordinary Infrastructure Costs that are already completed and in place on the Agreement Date ( "Eligible Items "). In the event the Parties are unable to reach agreement on the list of Eligible Items within sixty (60) calendar days after the Agreement Date, any Party shall be entitled to submit the issue to binding arbitration in accordance with Section 809 of this Agreement. Based on the list of Eligible Items, a scope of work will be provided to the cost engineer (based upon the approved plans and specifications relating to such work) for cost estimating purposes. The cost engineer will prepare a detailed estimate of the reasonable direct and indirect costs required to complete all of the Eligible Items and will also calculate the "development management fee" for those Eligible Items, as set forth in the definition of Extraordinary Infrastructure Costs. The cost engineer will coordinate with Agency, City and Developer to obtain information necessary to Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -60- assist in completing the cost analysis as expeditiously as reasonably practicable. Developer will provide Agency with the costs to acquire the land, and the Finance costs, including all supporting documentation reasonably required by Agency's Executive Director for review and approval. For purposes hereof, the Parties agree that February 28, 2009 shall be the date from which the Finance Costs incurred by Developer shall be calculated. In the event the Parties are unable to reach agreement on the land acquisition and Finance costs within sixty (60) calendar days after the Agreement Date, any Party shall be entitled to submit the issue to binding arbitration in accordance with Section 809 of this Agreement. Developer and Agency agree that the estimate of direct and indirect costs prepared by the cost engineer, together with the approved land acquisition and Finance costs, shall constitute the approved Statement of Developer's Extraordinary Infrastructure for all Extraordinary Infrastructure Costs incurred prior to the Agreement Date. (b) Costs Incurred After Agreement Date. During the term of this Agreement, but not more frequently than quarterly, Developer shall be entitled to submit to Agency's Executive Director for approval a Statement or Statements of Developer's Extraordinary Infrastructure Costs identifying the Extraordinary Infrastructure Costs incurred by Developer after the Agreement Date and since the previous such statement was submitted. Each Statement of Developer's Extraordinary Infrastructure Costs shall contain the following information: (i) the written contract(s), purchase order(s), or other evidence of commitment, including any amendment(s) or change order(s) relating thereto, pursuant to which the Extraordinary Infrastructure Costs were incurred (to the extent not previously provided); (ii) a narrative or line item identification of the particular expenses Developer has incurred, with sufficient detail to enable Agency's Executive Director to verify the eligibility of such expenses (or portions thereof) for payment or reimbursement; (iii) the invoices, copies of canceled checks, or other documents evidencing Developer's payment of said expenses; and (iv) lien releases from contractors and suppliers having the right to a mechanics' lien for which payment reimbursement is being requested. Agency's Executive Director shall not unreasonably withhold or condition approval of any Statement of Developer's Extraordinary Infrastructure Costs incurred after the Agreement Date. The Executive Director shall have the right to submit the Statement of Developer's Extraordinary Infrastructure Costs and all supporting documentation to the Agency's financial consultant(s) for the consultants' review and approval. If the Executive Director or the Agency's financial consultant determines that Developer is not entitled to have its Statement of Developer's Extraordinary Infrastructure Costs approved in full, the Executive Director shall approve all items which are eligible for approval and shall provide Developer with a Notice within thirty (30) calendar days after receipt of said statement identifying the items which have not been approved, including the specific reasons for such determination and any additional information that may be reasonably required by the Executive Director or the Agency's financial consultant in order for Developer to obtain an approval (or an approval of any disapproved items). After Developer provides such additional information that Agency's Executive Director or the Agency's financial consultant may have reasonably requested, such information shall be reviewed by the Executive Director or the Agency's financial consultant in the same manner and within the same time frame for review of Developer's initial submittal. Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —61— In the event Agency's Executive Director or its financial consultant disapproves, in whole or part, one or more of Developer's Statements of Developer's Extraordinary Infrastructure Costs, said Parties shall meet and confer in a good faith effort to resolve the dispute. In the event said Parties are unable to resolve said dispute within thirty (30) calendar days, either of such Party shall be entitled to submit said dispute to binding arbitration in accordance with Section 809 of this Agreement. 604.2 Reimbursement of Extraordinary Infrastructure Costs. Reimbursement of the approved Extraordinary Infrastructure Costs shall be made by Agency to Developer annually at the same time payments of the Developer's Share of the Developer Property Tax Revenues are made in accordance with Section 602; provided that the initial payment of Accrued Tax Increment Revenue, which is a source of reimbursement of Extraordinary Infrastructure Costs, shall be paid to Developer within thirty (30) calendar days after the recordation of a Release of Project Development Covenants for Completion of Development of the Phase 1 Scope of Work. Subject to Section 605 and applicable Governmental Requirements, Agency's obligation to reimburse the Extraordinary Infrastructure Costs shall be a special and limited obligation of Agency payable solely from the following sources: (i) the Net Available Specific Plan Area Tax Revenues; (ii) the portion of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues, if any, that is attributable to any Phase of the Project as to which this Agreement has been terminated as provided in Section 807; but only with respect to Extraordinary Infrastructure costs incurred after the Agreement Date; (iii) the portion of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, if any, that is in excess of the Master Developer Payment Cap; and (iv) the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues, if any, that is attributable to any Phase of the Project as to which this Agreement has been terminated as provided in Section 807. Said payment obligation is secured by a pledge of such portions of the Tax Revenues as set forth in Section 606 of this Agreement. Agency shall be entitled to a full credit against the amount of Extraordinary Infrastructure Costs owing to Developer in the amount of any payments or reimbursements received by Developer from the City or Agency that are attributable to such costs and which are obtained from sources other than the Tax Revenues identified in the preceding paragraph that would otherwise represent a net revenue source to the City or Agency, including without limitation: (i) developer impact fees received by the City from other developers of properties within the Specific Plan Area or elsewhere and /or (ii) payments received by the City from such developers pursuant to subdivision improvement agreements, reimbursement agreements, or other similar contracts, by whatever name used; but excluding any developer impact fee "credits" received by Developer that are attributable to such costs and any other impact fee "credits" or other similar "credits" received by Developer from the City or Agency but as to which such Party acts as a conduit for another principal governmental agency. 604.3 Extraordinary Infrastructure Reimbursement Cap. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -62 Notwithstanding any other provision set forth in this Agreement to the contrary, the maximum amount of the Extraordinary Infrastructure Costs reimbursable to Developer hereunder shall not exceed the sum of Nineteen Million Dollars ($19,000,000) adjusted for inflation after the 2002 DDA Effective Date at an annual rate equal to CPI plus two percent (2 %) (the "Extraordinary Infrastructure Reimbursement Cap "). Notwithstanding the foregoing, Developer and Agency agree that, commencing in 2007, Developer and Agency agree that for the calendar years 2008 through 2010, inclusive, there shall be no increase in the amount of the Extraordinary Infrastructure Reimbursement Cap for CPI plus two percent (2 %), or any other amount. Thereafter, commencing in January 2011, the Extraordinary Infrastructure Reimbursement Cap shall increase in accordance with this Section. Upon receipt by Developer of any payment or reimbursement from the City or Agency against the amount of Extraordinary Infrastructure Costs owing to Developer, the amount of the adjusted Extraordinary Infrastructure Reimbursement Cap shall be reduced by the amount of such payment or reimbursement and as so reduced shall continue to adjust for CPI thereafter as provided in the first sentence of this paragraph. 604.4 Indemnification. In connection with any reimbursement of Extraordinary Infrastructure Costs made by Agency to Developer pursuant to this Section 604, Developer shall defend, indemnify, and hold harmless Agency, the City, and the Indemnified Parties from and against any and all Claims arising out of or in any way connected with (i) the performance of the work for which reimbursement of the Extraordinary Infrastructure Costs is paid by the Agency, including without limitation, contractor's liens; (ii) any third party claims for injury to person or property resulting from the improvements constituting the Extraordinary Infrastructure Costs, including, without limitation, the design and construction thereof; or (iii) the failure of any component of the Extraordinary Infrastructure Costs to be constructed in accordance with all applicable Governmental Requirements; provided however, Developer's indemnification obligation hereunder shall terminate upon (a) with respect to subsection (ii) above, twelve (12) months after the City accepts an offer of dedication, or (b) with respect to subsections (i), (ii) (for an improvement not accepted by the City) and (iii), the time permitted under applicable statute of limitations under CCP § 335.1, 337, 337.15 and 338, as applicable. 605. Priority of Payments Between Developer and Master Developer; Accrued and Unpaid Obligations. In the event that Agency is unable to pay either Developer or Master Developer any of the amounts payable at the times provided for in Sections 602 -604, the unpaid amounts shall accrue interest at the same rate that is applicable to eminent domain judgments in the State of California (i.e., the apportionment rate calculated by the State Controller as the rate of earnings by the State's Surplus Money Investment Fund for each six -month period) in accordance with the methodology set forth in California Code of Civil Procedure Sections 1268.350- 1268.360, as the same currently exist, or, if said apportionment rate is discontinued or is not available, at the variable interest rate that is most closely analogous to said apportionment rate; provided, however, that in no event shall the interest rate hereunder be in excess of the maximum rate that Agency is authorized to pay by law; and provided further that the interest rate on the unpaid amounts in any Fiscal Year shall be fixed at the rate prevailing for the calendar quarter Clean Amnd Restd DDA - LMM comments Draft 030211- -63 - AGENDA.doc immediately preceding the date on which such payments become due to either Developer or Master Developer until paid. The accrued principal and interest shall be paid to Developer or Master Developer, as applicable, at the times payments are otherwise due under Sections 602 - 604 in the next succeeding Fiscal Year or Years out of the next available Agency Tax Revenues that are pledged for payment hereunder (i.e., after Agency's First Priority Obligations and current obligations for payments owing pursuant to Sections 602 - 604 are paid in that Fiscal Year or Years). The source(s) for payment of the Unpaid Tax Revenues shall be the same as for the obligations if paid on a current basis; provided, that as to the payment of Extraordinary Infrastructure Costs, Developer shall be entitled to the additional source of the City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and City's Share of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues. In no event shall Agency's deferred payments in accordance with the foregoing provisions be deemed a Default. Provided that Agency timely performs its payment obligations hereunder, including with respect to payment of such deferred amounts, Agency's obligation to pay Unpaid Tax Revenues, including accrued interest thereon, shall terminate on the next payment date after the last date Agency is entitled to collect Tax Revenues, and any unpaid amounts remaining shall be deemed forgiven and discharged as of that date. 606. Pledge of Tax Revenues; Miscellaneous Agency Financial Covenants to Protect Developer's and Master Developer's Security. The pledges of Developer and Master Developer's Property Tax Revenues in the 2002 DDA shall remain in full force and effect, from and after the 2002 DDA Effective Date. Agency hereby confirms its prior irrevocable pledge of the Developer Property Tax Revenues to Developer for the purpose of securing Developer's right to receive the Developer's Share of the Developer Property Tax Revenues or portion thereof that is payable pursuant to Section 602 of this Agreement (including any accrued and unpaid amounts payable under Section 605). In addition, Agency hereby confirms its prior irrevocable pledge of the Master Developer Property Tax Revenues to Master Developer for the purpose of securing Master Developer's right to receive the Master Developer's Share of the Master Developer Property Tax Revenues or portion thereof that is payable pursuant to Sections 601 -603 of this Agreement (including any accrued and unpaid amounts payable under Sections 605). Finally, Agency hereby confirms its prior irrevocable pledge of the Net Available Specific Plan Area Tax Revenues, the unrestricted Portion of the Developer Share of the Developer Property Tax Revenues that is attributable to any defaulted phase of the project as to which the Agreement has been terminated as provided in Section 807 and the Unrestricted Portion of the Master Developer Share of the Master Developer Property Tax Revenues that is attributable to any phase of the Project on the Master Developer Property as to which this Agreement has been terminated as provided in Section 807, and the Unrestricted Portion of the Master Developer Property Tax Revenues in excess of the Master Developer Payment Cap to Developer for the purpose of securing Developer's right to receive the Extraordinary Infrastructure Costs payable out of such sources of funds in accordance with Section 604 of this Agreement (including any accrued and unpaid amounts payable under Section 605). Clean Amid Restd DDA - LMM comments Draft 030211- AGENDA.doc —64— Developer and Master Developer, respectively, hereby irrevocably pledge to City the City's Share of the Unrestricted Portion of the Developer Property Tax Revenues and the City's Share of the Unrestricted Portion of the Master Developer Property Tax Revenues, subject to Section 605. Such pledges are made by Developer and Master Developer, respectively, for use by the City in developing public improvements. Such pledge(s) shall be to the fullest extent permitted by Section 33671.5 of the Redevelopment Law and any other applicable Governmental Requirements. Such pledges shall be valid and binding and shall constitute a lien and security interest which shall immediately attach from and after the Agreement Date as between Agency and Developer and Agency and Master Developer, respectively, provided that such pledge shall not invalidate any pledge made pursuant to the 2002 DDA from and after the 2002 Effective Date against all parties having claims of any kind in tort, contract, or otherwise against Agency, irrespective of whether such parties have notice thereof and without the need for any physical delivery, recordation, filing, or further act. Notwithstanding the foregoing, the pledge(s), lien(s), and charge(s) provided for herein shall at all times be unconditionally junior and subordinate in all respects to the pledge, lien, and charge of Agency's First Priority Obligations; provided however that the Agency shall apply reserve funds for the Senior Lien Debt to the final year or years debt service, to the extent permitted by the indentures and other governing bond documents and applicable Government Requirements (or shall account for such reserve funds as if they have been so applied, to the extent permitted by applicable Governmental Requirements). Notwithstanding the automatic and unconditional nature of this subordination, Developer and Master Developer each agree to execute and deliver such further documents and instruments to Agency and to take such further action as may be reasonably necessary or required by Agency (at no cost to Developer or Master Developer) to effectuate or preserve this subordination after the Agreement Date. Agency further hereby covenants as follows: (a) None of the Pass - Through Agreements have been amended or modified by the Agency after the 2002 Effective Date nor shall be amended or modified by Agency after the Agreement Date in a way that increases Agency's financial obligations thereunder (unless such obligations are expressly subordinate to Agency's pledge of Tax Revenues under this Section 606) or jeopardizes or impairs Developer's or Master Developer's rights hereunder. (b) Agency shall timely comply with all provisions of the Redevelopment Law to assure the proper and timely collection, allocation, and payment to it of the Tax Revenues, including without limitation the timely filing of any necessary statements of indebtedness with appropriate officials of the County of Riverside, copies of which shall be delivered to Developer and Master Developer upon written request. Agency shall, in addition, comply with all requirements of the Redevelopment Law relating to the deposit of the required minimum amount of Tax Revenues in Agency's Low and Moderate Income Housing Fund. (c) Agency shall preserve and protect the security of the funds pledged for payment to Developer and Master Developer hereunder and Agency shall not take any action to impair the security or priority of such funds. In this regard, and not by way of limitation of the Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doe —65— foregoing, Agency shall not voluntarily incur any new obligations after the Agreement Date that are payable in whole or in part from any portion of Tax Revenues if it is reasonably foreseeable at the time that any such new obligation is incurred that such new obligation, combined with Agency's First Priority Obligations and Agency's other fixed and contingent obligations existing at that time, will or may jeopardize or impair Agency's ability to make the full amount of the payments owing to Developer and Master Developer at the times provided for in Sections 602.2, 603 and 604.2 herein (i.e., without any deferral of such payments as provided for in Section 605). In addition, and for so long as it is reasonably foreseeable that Agency will not or may not be able to make the full amount of the payments owing to Developer and Master Developer at the times provided for in Sections 602.2, 603 and 604.2 herein (i.e., without any deferral of such payments as provided for in Section 605), Agency, to the maximum extent permitted by law and any obligations incurred by Agency prior to the Agreement Date, shall apply any income or revenues it receives or is entitled to receive that are not already pledged or reserved for payment of Agency's First Priority Obligations (e.g., the net proceeds from the sale of or lease of other Agency -Owned Properties or Property hereafter acquired with Tax Revenues) to reduce the debt service requirements on Agency's First Priority Obligations. Prior to entering into any new obligation for Project Areas II and III that is or may be subject to the provisions of this clause (c) and prior to applying any net income or revenue it receives or allows any other entity or person (such as the City) to receive that are not already pledged or reserved for payment of Agency's First Priority Obligations, Agency shall consult in good faith with Developer and Master Developer regarding such matters in order to effectuate the purposes of this Section 606, Notwithstanding the foregoing, nothing in this Agreement shall prevent Agency (i) from issuing and selling any obligations payable from and having any lawful lien upon the funds pledged to Developer and Master Developer hereunder if such obligations are issued solely for the purpose of, and are sufficient solely for the purpose of, effecting the refinancing or refunding of all or any portion (inclusive of a pro rata portion of costs of issuance and any reasonably required reserves) of the Senior Lien Debt; provided, however, that no such refinancing or refunding shall in any way adversely affect the cash flows, the creditworthiness, or the amount of funds that would otherwise be available to pay Developer or Master Developer the amounts owing hereunder; or (ii) from incurring, issuing, selling, or entering into any bonds, notes, or other evidence of indebtedness that have, or purport to have, any lien upon the revenues pledged for payment to Developer and Master Developer hereunder that is junior and subordinate to the pledge to Developer and Master Developer created by this Agreement. (d) Agency shall at all times keep, or cause to be kept, proper and current books and accounts (separate from all other records and accounts) in which complete and accurate entries shall be made of all transactions relating to the Tax Revenues, a detailed account of all payments relating to the First Priority Obligations, and the amounts accrued, owing, and paid to Developer and Master Developer hereunder. (e) Agency shall not incur any loans, obligations, or indebtedness repayable from Tax Revenues in violation of the provisions of any of the Redevelopment Plans, including the limitations on indebtedness contained therein. (f) Agency shall at all times, to the extent permitted by law, defend, preserve, and protect the pledge of the portions of the Tax Revenues provided to Developer and Master Clean Anmd Kestd DDA - LMM comments Draft 030211 - AGENDA.doe —66— Developer herein and all the rights created hereunder against all claims and demands of all persons whomsoever. (g) With respect to all of the First Priority Obligations secured by Tax Revenues, Agency shall use and shall cause the Authority and Lake Elsinore Recreation Authority to use all available Tax Revenues from the applicable Project Areas (including portions or segments thereof) that would not otherwise constitute Developer Property Tax Revenues, Master Developer Property Tax Revenues, and /or Net Available Specific Plan Area Tax Revenues to make payments with respect to such First Priority Obligations prior to using any portion of the Tax Revenues pledged for payment to Developer and Master Developer hereunder to make such payments. (h) Agency shall adopt, make, execute, and deliver any and all such further resolutions, instruments, and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of its obligations set forth in Sections 601 -608 of this Agreement and for the better assuring and confirming of the rights and benefits provided herein. (i) To the extent that the City and Agency are successful in amending any of Agency's Redevelopment Plans in a manner that results in net new Tax Revenues being allocated to and received by Agency (i.e., in excess of the total Tax Revenues that would be allocated to and received by Agency in the absence of such amendment(s)), Agency shall apply all of the net new Tax Revenues to pay or satisfy its First Priority Obligations so long as said First Priority Obligations exist (or, to the extent Agency has sufficient other Tax Revenues to pay such First Priority Obligations and the amounts owing to Developer and Master Developer hereunder without any deferral or accrual, to such purposes that Agency may elect in its sole and absolute discretion). Notwithstanding the foregoing, in no event shall Agency have any obligation to pay and in no event shall Developer or Master Developer have any right to receive any additional Tax Revenues that may be allocated and paid to Agency as a result of the amendment of any of Agency's Redevelopment Plans after the Agreement Date. 0) To the extent the financial provisions of this Agreement create adverse tax consequences for Developer and /or Master Developer, Agency agrees to cooperate in good faith with them to mitigate or eliminate such adverse tax consequences so long as Agency incurs no costs with respect thereto, Agency's rights and obligations hereunder are not altered or changed in any way that Agency reasonably determines to adversely affect Agency, and any actions taken by Agency are in compliance with all applicable Governmental Requirements. 607. Tax Allocation Bond Sales. From time to time, and upon Developer's and /or Master Developer's written request, Agency shall consult and cooperate with Developer and /or Master Developer periodically with respect to the issuance and sale of bonds, notes, or other evidence of indebtedness (herein "Bonds ") secured by Project Area II Tax Revenues and Project Area III Tax Revenues to pay to Developer and /or Master Developer, as applicable, the portions of such Tax Revenues owing to each of them pursuant to Sections 602.2, 604.2 and 605 of this Agreement. It is understood that in sizing any issuance of Bonds including any coverage requirements therefor, Agency shall be Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —67- required to utilize one hundred percent (100 %) of the sum of the portions of the Tax Revenues that are, or are projected by an independent financial consultant appointed by Agency to become, available and that are pledged for payment to Developer and Master Developer hereunder, including without limitation, the City's Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and the City's Share of the Unrestricted Portion of the Master Developer's Share of the Master Developer Property Tax Revenues. The entire balance of the net proceeds of such issuance of Bonds shall be allocated to Developer and /or Master Developer and City, as applicable, for payment or reimbursement of the amounts set forth in Sections 602.2, 604.2 and 605 of this Agreement; provided that Bond proceeds for any incomplete Phase shall be placed in escrow and released to Developer or Master Developer, as applicable, upon completion of a Phase or incurrence of Master Developer Costs, respectively. Developer and /or Master Developer shall pay to City from such net proceeds the City Share of the Unrestricted Portion of the Developer's Share of the Developer Property Tax Revenues and the City Share of the Unrestricted Portion of Master Developer's Share of Property Tax Revenues. The use of such funds by the City shall be restricted to the development of public improvements. Developer and Master Developer acknowledge and agree that the decision to issue Bonds and the terms thereof is a legislative decision to be exercised in the reasonable discretion of the Agency. Agency shall submit to Developer and Master Developer a reasonable proposal to issue Bonds including the timing, structuring, and marketing of the Bonds and shall consult and cooperate with Developer and /or Master Developer with respect thereto. Developer and Master Developer each shall have the right to reject, each in its sole and absolute discretion, the Agency's proposal. 608. Mello -Roos and Assessment District Financing. Agency, in cooperation with and at the request of Developer and /or Master Developer, shall initiate and use its commercially reasonable and diligent efforts to cause the City to establish a Mello -Roos Community Facilities District ( "CFD ") to finance public improvements and facilities to be constructed and installed by either of them in conjunction with their development of the Project on and with respect to the Developer Property and Master Developer Property, in accordance with the provisions of the Mello -Roos Community Facilities Act of 1982, as amended. It is understood that Developer shall not be entitled to receive the net proceeds of any CFD bonds to the extent that Developer has been paid or reimbursed for the same public improvements or facilities that are being financed with said CFD bonds in accordance with Section 604 of this Agreement. Similarly, it is understood that Developer shall not be entitled to receive reimbursement in accordance with Section 604 of this Agreement to the extent that Developer has been paid or reimbursed for the same public improvements or facilities from the proceeds of CFD bonds. Nevertheless, the Parties acknowledge and agree that Developer may pledge Tax Revenues to which Developer is entitled in accordance with Section 604 of this Agreement as additional security for CFD bonds, as long as CFD bond proceeds are not used to reimburse Developer for costs already reimbursed in accordance with Section 604 of this Agreement. It is also understood that multiple CFDs may be established over portions of the Developer Property and /or the Master Developer Property in order to facilitate the funding of public improvements and facilities to correspond with the phased development of the Project. Clean Amnd Restd DDA - LMM comments Draft 030211- —68— AGENDA.doc In addition, Agency in cooperation with and at the request of Developer and /or Master Developer shall exercise commercially reasonable efforts to cause City to establish other assessment districts, maintenance districts, or other financing districts authorized by State law in order to assist in the payment of public improvement costs for the Project, subject to the same limitations set forth hereinabove. Nothing in this Section 608 in intended to restrict the authority of public agencies and public utility companies other than the Agency with regard to public improvements and facilities over which such other agencies and companies have jurisdiction. 609. Indemnity of City and Agency for Conflicting Claims Between Developer and Master Developer. Developer and Master Developer shall each defend, indemnify, and hold harmless the Indemnified Parties from and against any and all liabilities, obligations, claims, and losses arising out of or in any way connected with a dispute between Developer and Master Developer and /or their respective successors and assigns regarding the priority or allocation of Agency's payment of Tax Revenues to Developer and Master Developer pursuant to this Agreement. 700. USE, MAINTENANCE, AND NON - DISCRIMINATION COVENANTS AND RESTRICTIONS APPLICABLE TO THE DEVELOPER PROPERTY AND MASTER DEVELOPER PROPERTY 701. Use of the Developer Property and Master Developer Property. After Agency's issuance of a Release of Project Development Covenants with respect to any separate legal parcel or lot within the Specific Plan Area acquired and developed by Developer and Master Developer, and during the period of either such Party's ownership thereof, Developer or Master Developer, as applicable, shall not use such parcel or lot or permit such parcel or lot to be used other than as authorized or permitted under the applicable provisions of the Project Area II Redevelopment Plan and /or the Project Area III Redevelopment Plan. The covenants and restrictions set forth in this Section 701 shall run with the land and shall terminate as to each such separate legal parcel or lot within the Developer Property or Master Developer Property upon Developer's or Master Developer's sale or transfer of said parcel or lot to a merchant builder, governmental agency, homeowner's association, or other end user. 702. Maintenance of the Developer Property and Master Developer Property. After Agency's issuance of a Release of Project Development Covenants with respect to any separate legal parcel or lot within the Specific Plan Area that is acquired and developed by Developer and Master Developer, and during the period of either such Party's ownership thereof, Developer or Master Developer, as applicable, at its expense, shall maintain such parcel or lot in good order, condition, and repair (and, as to landscaping, in a healthy condition) and in accordance with the approved plans for the Project and all applicable Governmental Requirements. During such period, Developer or Master Developer, as applicable, shall further prevent the accumulation of any waste material, rubbish, graffiti, weeds, or debris on such parcel or lot and shall not permit any unlawful use or any public or private nuisance to occur thereon. The covenants and restrictions set forth in this Section 702 shall run with the land and shall terminate as to each such separate legal parcel or lot upon Developer's or Master Developer's Clean Anmd Restd DDA - LMM comments Draft 030211- -69- AGENDA.doc sale or transfer of said parcel or lot to a merchant builder, governmental agency, homeowner's association, or other end user. 703. Obligation to Refrain from Discrimination. There shall be no discrimination against, or segregation of, any persons, or group of persons, on account of race, color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national origin in the enjoyment of the Developer Property or Master Developer Property or any portion thereof, nor shall Developer or Master Developer itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Developer Property or Master Developer Property or any portion thereof. The foregoing covenants shall run with the land and shall remain in effect in perpetuity. 704. Form of Non - Discrimination and Nonsegregation Clauses. Developer and Master Developer shall refrain from restricting the rental, sale, or lease of any portion of the Developer Property and Master Developer Property on the basis of status, race, color, creed, religion, sex, marital status, physical or mental disability, ancestry, or national origin of any person. Developer and Master Developer covenant by and for themselves and any successors in interest that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Properties, or any part of it, nor shall the Developer or Master Developer or any person claiming under or through them, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Developer Property, Master Developer Property or any portion thereof. The foregoing covenants shall run with the land. Notwithstanding the foregoing paragraph, with respect to familial status, the foregoing paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the foregoing paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the foregoing paragraph. Developer and Master Developer shall refrain from restricting the lease or sale of the Developer Property, Master Developer Property, or any portion thereof on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code. All such deeds, leases, contracts or subcontracts shall contain or be subject to substantially the following nondiscrimination and nonsegregation clauses: Clean Amid Restd DDA - LMM co nments Draft 030211- _ 70_ AGGNDA.doc a. In deeds: "In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." Notwithstanding the foregoing paragraph, with respect to familial status, the foregoing paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the foregoing paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the foregoing paragraph. b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." Notwithstanding the foregoing paragraph, with respect to familial status, the foregoing paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the foregoing paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the foregoing paragraph. C. In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in connection with the performance of this contract nor shall the contracting party himself or herself, or any person claiming under or through him or her, Clean Aimid Restd DDA - LMM comments Drafl 030211 - AGENDA.doc -71 establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, contractors, subcontractors or vendees with respect to the premises." Notwithstanding the foregoing paragraph, with respect to familial status, the foregoing paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the foregoing paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the foregoing paragraph. 705. Effect and Enforcement of Use, Maintenance, and Non - Discrimination of Covenants and Restrictions. Agency is deemed a beneficiary of Developer's and Master Developer's covenants and restrictions set forth in Sections 701 -704 of this Agreement. Such covenants and restrictions shall run with the land for the full term that such covenants and restrictions remain in effect and Agency shall have the right to enforce said covenants and restrictions for and in Agency's own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit such covenants and restrictions have been provided. The covenants in favor of Agency shall run without regard to whether Agency has been, remains, or is an owner of any land or interest therein in the Specific Plan Area or any of the Project Areas. Agency shall have the right if any of the covenants or restrictions set forth in Sections 701 -704 of this Agreement which are provided for its benefit are breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it be entitled. 800. DEFAULTS, REMEDIES. AND TERMINATION 801. Defaults - General; Limitation on Remedies. 801.1 Defaults - General. Subject to the extensions of time set forth in Section 903, failure or delay by a Party to perform any [material] term or provision of this Agreement constitutes a default under this Agreement ( "Default "). The injured Party shall give written notice of default to the non- performing Party, specifying the default complained of by the injured Party ( "Notice of Default "). If the Party who so failed or delayed to perform its obligation does not cure such failure or delay in performance within thirty (30) calendar days after receipt of a Notice of Default from the other Party, such Default shall then constitute an "Event of Default" hereunder. If the cure is of such a nature that it cannot be completely performed within thirty (30) calendar days, the non - performing Party shall deliver to the other Parties (within thirty (30) calendar days after receipt of the Notice of Default) a detailed written statement of the steps that the non- performing Party intends to take to cure (a "Cure Plan ") and the timing thereof. The Cure Plan shall require the Default to be cured in a reasonable time given the nature of the Default, but in no event longer than eighteen (18) months. Such Party shall promptly commence to cure, Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —72 correct, or remedy such failure or delay in accordance with the Cure Plan and thereafter diligently prosecute such cure, correction, or remedy to completion. If such Party does not so commence and diligently pursue such cure, or if the failure or delay to perform is such that it is not or cannot be cured in a time period not to exceed eighteen (18) months, then such failure or delay shall constitute an Event of Default hereunder. Except as required to protect against further damages, and as stated below with respect to an Incurable Default, the injured Party may not institute proceedings against the non - performing Party with respect to a Default during the appropriate cure period as specified in the preceding paragraph. If the failure or delay in performance is not cured within said period, such Default shall be deemed an Event of Default hereunder, and the injured Party shall have the right to pursue any legal or equitable remedy available at law or in equity. Notwithstanding the foregoing, the Parties recognize that due to the nature of the Project, performance by Developer and Master Developer will involve the undertaking of substantial financial risk and require the commitment of substantial time and resources over a span of several years. Accordingly, they desire to limit the circumstances under which Agency is authorized to terminate this Agreement with respect to any portion of the Developer Property or Master Developer Property for which a Release of Project Development Covenants has not been issued to those constituting an Incurable Default as defined below and a material Event of Default for which compensation in the form of money damages would be inadequate to ameliorate the effect of such Event of Default. In this regard, Developer and Master Developer acknowledge that otherwise minor, immaterial and insubstantial Defaults may become material if they occur regularly or repeatedly or persistently. Agency shall also provide a copy of any written Notice of Default directed to Developer to Master Developer and, as between Agency and Master Developer, Master Developer shall have the right, but not the obligation, to cure Developer's default, except for any Incurable Default. In the event that such a cure by Master Developer does not involve the payment of money and /or cannot reasonably be effected by Master Developer within thirty (30) calendar days from the date such Notice of Default is received, Master Developer shall have the right but not the obligation to submit to Agency a Cure Plan within such thirty (30) day period in accordance with this Section. Agency agrees to cooperate with Master Developer and to act reasonably in deciding whether or not to approve said Cure Plan and if said Cure Plan is approved, the time for Developer's cure of the default shall be extended for such period of time that Master Developer is diligently prosecuting the Cure Plan to completion, which shall not exceed the earlier of a reasonable time to cure given the nature of the Default or eighteen (18) months; provided, however, that, as between Developer and Master Developer, nothing in this Agreement shall be deemed to provide to Master Developer the right to assume the rights and obligations of Developer hereunder without Developer's prior written consent so long as Developer elects to cure said default itself. Notwithstanding the foregoing, the Parties have specifically negotiated and agreed that from and after the Agreement Date, certain Defaults will not require Notice of Default and an opportunity to cure prior to becoming Events of Default hereunder (each, an "Incurable Default "). Such Incurable Defaults hereunder shall consist of the following: Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -%3 (a) Failure of Developer to Commence or Complete the Development of a Phase within the time required by the Schedule of Phase Development, as such Schedule may be extended in accordance with Section 501.2, 503 or Section 903. (b) Failure of Master Developer to commence or complete Development of a Phase within the time required by Section 501.3, as may be extended in accordance with Section 501.3, 503 or Section 903. In the event of the occurrence of an Incurable Default, Agency shall have the right to immediately terminate this Agreement in accordance with Section 807. 801.2 Reporting During the period that any Default hereunder is being cured by Developer or Master in accordance with an approved Cure Plan as referred to hereinabove, Developer or Master Developer, as applicable, shall submit a monthly written report to Agency's Executive Director setting forth in detail the status of the efforts being undertaken to implement the Cure Plan and cure the Default. 801.3 Limitation on Damages and Liability. Notwithstanding anything to the contrary set forth herein, Developer, Master Developer and Agency shall not be entitled to, and each hereby waives, any right to seek loss of profits or any special, incidental or consequential damages of any kind or nature, whether due to the loss of anticipated tax revenues or otherwise, from any other Party arising out of or in connection with this Agreement or the termination hereof; provided, however, that this limitation of damages is not intended to limit or restrict any party's right to recover attorney's fees and costs that are recoverable in accordance with Section 805. 802. Legal Actions. 802.1 Institution of Legal Actions. Except to the extent disputes between or among the Parties are required to be resolved by arbitration in accordance with Section 808 of this Agreement, to the extent permitted by law, legal actions must be instituted and maintained in an appropriate State court in Riverside, San Diego, or Orange County or, if appropriate, in the United States District Court in and for the Central or Southern Districts of California. All Parties hereto irrevocably consent to the personal jurisdiction of any of said courts. 802.2 Applicable Law. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflict of law principles. Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -74 802.3 Acceptance of Service of Process. In the event that any legal action is commenced by Developer or Master Developer against Agency, service of process on Agency shall be made by personal service upon the Executive Director or Secretary of Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by Agency against Developer or Master Developer, service of process shall be made in such manner as may be provided by law and shall be valid whether made within or without the State of California. 803. Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by a Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by another Party or Parties. 804. Inaction Not a Waiver of Default. Any failure or delay by a Party to this Agreement in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any such Default or of any such rights or remedies, or deprive such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. A Party's waiver of any other Party's performance shall be limited to the specific circumstances of that waiver and shall not be construed as a waiver of the same or similar performance by the other Party or Parties in the future. 805. Attorney's Fees. If a Party to this Agreement is required to initiate or defend an arbitration proceeding or litigation in any way connected with this Agreement, the prevailing party in such arbitration proceeding or litigation, in addition to any other relief to which such Party may be entitled, shall be entitled to recover its reasonable attorney's fees. If a Party to this Agreement is required to initiate or defend an arbitration proceeding or litigation with a third party because of the violation of any term or provision of this Agreement by any other Party, then the Party so arbitrating or litigating shall be entitled to recover its reasonable attorneys fees from the other Party or Parties to this Agreement. For purposes of this Agreement, the term "attorney's fees" shall include all reasonable costs for investigating such arbitration proceeding or litigation, taking depositions and discovery, expert witness fees, arbitration fees or court costs, as applicable, and all other costs and expenses incurred with respect to such arbitration proceeding or litigation, including without limitation attorney's fees and costs incurred on any appeal. All such attorney's fees shall be deemed to have accrued on commencement of such arbitration proceeding or litigation and shall be enforceable whether or not such arbitration proceeding or litigation is prosecuted to a final decision or judgment. Clean Anmd Restd DDA - LMM comments Draft 030211- -75- AGENDA.doc 806. No Cross - Defaults. An Event of Default by Developer hereunder shall not be deemed to constitute an Event of Default by Master Developer hereunder and, in such event, Master Developer shall retain all of its rights and obligations hereunder irrespective of Developer's Default; provided, however, that in the event Developer commits an Event of Default hereunder and this Agreement is terminated prospectively with respect to the Developer Property in accordance with Section 807, nothing in this Section 806 is intended to modify the provisions in Section 501.3(a) that would result in acceleration of Master Developer's deadlines for acquiring portions of the Specific Plan Area and proceeding with the development of the Master Developer Property. Similarly, an Event of Default by Master Developer hereunder shall not be deemed to constitute an Event of Default by Developer hereunder and, in such event, Developer shall retain all of its rights and obligations hereunder irrespective of Master Developer's Default. In addition to the foregoing, a Default by either Developer or Master Developer with respect to a Phase shall not be deemed to constitute Default by such Party hereunder with respect to any other Phase and such Party shall retain all of its rights and obligations hereunder with respect to the parcel(s) as to which no Default exists irrespective of the Default as to any other Phase; provided, however, that notwithstanding the foregoing, it is understood that in the event either Developer or Master Developer commits an Incurable Default, nothing in this Section 806 shall limit or restrict Agency's rights of termination with respect to future Phases not in Default as set forth in Section 807. 807. Termination. 807.1 As to the Developer Property. Before Agency has issued a Release of Project Development Covenants for Phase 1 and Phases A through G of the Project on the Developer Property as described in Section 501.2, Agency shall have the right to terminate this Agreement with respect to any Phase for which a Release of Project Development Covenants has not been issued in the event that (a) Developer commits a material Event of Default as described in section 801.1; or (b) Developer commits an Incurable Default as set forth in Section 801.1(a). Provided however, that no such termination shall affect (i) any Phase for which a Release of Project Development Covenants has been issued prior to such termination; or (ii) any Phase or Phases as to which Commencement has occurred and the time for Completion of Development has not then expired. Upon Completion of Development and timely issuance of a Notice of Completion for any such Phase as to which Commencement occurred before termination, Developer shall be entitled to Release of Development Covenants as provided in Section 511. Upon the termination of this Agreement, Developer shall remain entitled to receive (a) Developer's Share of the Developer Property Tax Revenues (i) with respect to any prior Phase or Phases for which a Release of Project Development Covenants has been issued prior to the termination, and (ii) with respect to any Phase as to which Commencement has occurred and the time for Completion of Development has not expired prior to the termination, provided that such Phase is timely completed pursuant to Section 501.2 and a Release of Project Development Covenants is issued for such Phase after the termination, and (b) reimbursement of Extraordinary Clean Aumd Restd DDA - LMM comments Draft 030211- -76- AGENDA.doc Infrastructure Costs (x) incurred prior to the termination and (y) required to be incurred after termination as a condition to any permit or other entitlement obtained prior to termination. 807.2 As to the Master Developer Property. Before Agency has issued a Release of Project Development Covenants for the first Phase of the Project on the Master Developer Property, Agency shall have the right to terminate this Agreement with respect to any Phase for which a Release of Project Development Covenants has not been issued in the event that (a) Master Developer commits a material Event of Default as described in section 801.1; or (b) Master Developer commits an Incurable Default as provided in Section 801.1(b). Thereafter, Agency shall have the right to terminate this Agreement in the event that a) Master Developer commits a material Event of Default as described in section 801.1; or (b) Master Developer commits an Incurable Default as provided in Section 801.1(b); provided however, no such termination shall affect the lots or parcels within (i) any Phase for which a Release of Project Development Covenants has been issued prior to such termination; or (ii) any Phase as to which Commencement has occurred and the time for Completion of Development has not then expired. Upon Completion of Development and timely issuance of a Notice of Completion for any such Phase as to which Commencement occurred before termination, Master Developer shall be entitled to Release of Development Covenants as provided in Section 5.11. Upon the termination of this Agreement, Master Developer shall remain entitled to receive Master Developer's Share of the Master Developer Property Tax Revenues up to an aggregate amount not to exceed the Master Developer Payment Cap as of the date of termination as generated by any prior Phase or Phases for which a Release of Project Development Covenants has been issued prior to the termination, as well as with respect to any Phase as to which Commencement has occurred and the time for Completion of Development has not expired prior to the termination, provided such Phase is timely completed pursuant to Section 501.3 and a Release of Project Development Covenants for such Phase is issued after the termination. 807.3 Notice of Termination. No termination of this Agreement by Agency shall be effective until a Notice of termination is provided to both Developer and Master Developer with respect to a Developer Event of Default, or Master Developer alone with respect to a Master Developer Event of Default. Such Notice shall be effective upon the date such notice is deemed given under Section 901. 807.4 Intentionally Omitted. 808. Effect of Termination on Tax Revenues. 808.1 As to Developer. On the effective date of any termination of this Agreement with respect to any Phase of the Project on the Developer Property, all Accrued Tax Revenues with respect to such Phase Clean Amnd Restd DDA - LMM comments Draft 030211- AGENDA.doc -77 shall no longer be required to be accrued under this Agreement, shall revert to the Agency and be applied and paid by the Agency as follows: (a) First, to pay Developer the amount of any Unpaid Tax Increment Revenue due to Developer plus any interest accrued thereon; and (b) Thereafter, to the Agency. Accrued Tax Revenues with respect to any Phase of the Project on the Developer Property as to which the Agreement is terminated shall not be used to reimburse Developer for any approved Extraordinary Infrastructure Costs owing to Developer, provided however, the Unrestricted Portion of the Developer's Share of Tax Increment on the Developer Property accruing after the effective date of any termination, with respect to any Phase of the Project on the Developer Property as to which the Agreement is terminated shall be paid by Agency to reimburse Developer for any approved Extraordinary Infrastructure Costs owing to Developer, but solely for infrastructure constructed by Developer subsequent to the Agreement Date. It is expressly understood and agreed among the Parties that from and after the effective date of any termination of this Agreement as to any portion of the Developer Property, such Property does not become Specific Plan Area for purposes of section 604. Notwithstanding the foregoing, if Master Developer later acquires any Property constituting former Developer Property for which this Agreement has been terminated, such Property may become Master Developer Property for purposes of this Agreement. 808.2 As to Master Developer. On the effective date of any termination of this Agreement with respect to any Phase of the Project on the Master Developer Property, all Accrued Tax Increment Revenues with respect to the Master Developer Property shall continue to be accrued under this Agreement and shall be applied and paid by the Agency to Master Developer up to the amount of any approved Master Developer Payment Cap as of the date of termination, with respect to all Phases for which (i) a Release of Project Development Covenants has been issued prior to termination, and (ii) provided that a Release of Project Development Covenants has been recorded for the first Phase on the Master Developer Property, which Agency's Executive Director is required to issue after termination pursuant to the provisions of Section 807.2. 809. Arbitration of Certain Disputes. The Parties agree that unresolved disputes relating to calculation of the amount of the Developer Property Base Year Tax Revenues for the Agency Property and the Stadium Parking Lot and any of the matters addressed in Sections 601 -606, inclusive, shall be resolved by binding arbitration conducted in accordance with this Section 809. Subject to completion of any meet - and - confer requirements set forth in this Agreement, any Party hereto may demand arbitration of an unresolved dispute by delivering written notice to the other Parties. In such event, the dispute shall be referred to JAMS and resolved by a retired judge in JAMS' Orange County office in accordance with the JAMS Streamlined Arbitration Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc -78- Rules and Procedures, as the same may be amended from time to time, except as may be expressly set forth herein. After a Party delivers a written notice demanding arbitration of an unresolved dispute, such Party together with the other Party or Parties involved in or whose rights or obligations are materially affected by the dispute shall meet and confer for a period of thirty (30) calendar days in an effort to agree upon the identity of the JAMS retired judge who will hear and decide the dispute. If the Parties cannot agree on the identity of the JAMS retired judge who will hear and determine the dispute within that period, JAMS shall be requested to provide a list with the names of three (3) available retired judges (if the dispute involves two (2) of the Parties to this Agreement) or the names of four (4) available retired judges (if the dispute involves all three (3) of the Parties to this Agreement), each Party to the dispute shall be permitted to strike one (1) name from the list within fifteen (15) calendar days after receiving said list, and the remaining retired judge on the list shall be designated to hear and determine the dispute. If there is more than one (1) name remaining on the list at the end of said fifteen (15) day period (e.g., a Party has not timely exercised its option to strike one (1) of the names or two or more of the Parties strike the same name), JAMS shall select the retired judge to hear and determine the dispute from the remaining names that have not been so stricken. Notwithstanding any provisions in the JAMS Streamlined Arbitration Rules and Procedures to the contrary, each Party to the dispute shall be afforded a reasonable opportunity prior to the arbitration hearing to take the deposition of any witness that any other Party to the dispute designates to testify at the arbitration proceeding regarding the financial calculations and obligations provided for in Sections 601 -606 and, if such witness is someone other than such other Party's person must knowledgeable on such subject(s), the person most knowledgeable as well, and the deadlines for conducting and completing the arbitration hearing shall be adjusted as necessary in order to accommodate such depositions and all Parties' need for reasonable time for preparation for the hearing after such depositions are completed. Each Party shall pay a pro rata share of JAMS' fees and expenses (one -third (1/3) of the total if the dispute involves all three (3) Parties to this Agreement and one -half (1/2) if the dispute involves two (2) of the Parties to this Agreement), provided that the prevailing Party or Parties shall be entitled to recover its or their portion of such fees and expenses pursuant to Section 805 of this Agreement. Judgment upon the final arbitration award may be entered by any state or federal court having jurisdiction thereof. 900. GENERAL PROVISIONS 901. Notices, Demands, and Communications Among the Parties. Except as otherwise provided in this Agreement or expressly provided by law, any notice, approval, consent, waiver, or other communication required or permitted to be given or to be served upon any Party in connection with this Agreement (a "Notice ") shall be made in writing in accordance with this Section 901. If applicable, any Notice given hereunder shall also comply with Section 906. Clean An nd Restd DDA - LMM continents Draft 030211 - AGENDA.doc -79 Any Notice shall be personally served or sent by first class United States mail, postage prepaid, or via email attachment, or by registered or by reputable overnight carrier, such as Federal Express, and such Notice shall be deemed given (i) if personally served or sent by overnight carrier, when delivered to the Party (or the agent of the Party) to whom such Notice is addressed, (ii) if given via email attachment, when sent, or (iii) if given by mail, three (3) business days following deposit in the United States mail. Any Notice given via email attachment shall be confirmed in writing by mail within two (2) business days after sent. Such Notices shall be addressed to the Party to whom such Notice is given at the Party's address set forth below. Agency: Lake Elsinore Redevelopment Agency 130 S. Main Street Lake Elsinore, CA 92530 -4163 Attn: Executive Director bbrady @Lake - Elsinore.org With Leibold McClendon & Mann, P.C. Copies to: 23422 Mill Creek Drive Suite 105 Laguna Hills, CA 92653 Attn: Barbara Z. Leibold, Esq. BarbarakCEQA.com Developer: McMillin Summerly LLC c/o The Corky McMillin Companies 2750 Womble Road San Diego, CA 92106 Attn: Robert F. Anselmo RAnselmo(,McMillin. com and McMillin Summerly LLC c/o The Corky McMillin Companies 2750 Womble Road San Diego, CA 92106 Attn: Brian Milich BMilich@McMillin.com and Clean Anmd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —g Q McMillin Summerly LLC c/o Acorn Grand Investors, L.P. Oaktree Capital Management, L.P. 333 South Grand Avenue, 281" Floor Los Angeles, CA 90071 Attn: Jason Keller JKeller@Oaktreecapital.com and McMillin Summerly LLC c/o Civic Partners 7777 Center Street, Suite 300 Huntington Beach, CA 92647 Attn: Steven P. Semingson SPSemingsongCivicpartners.com With Friedman Stroffe & Gerard, P.C. Copies to: 19800 MacArthur Blvd., Suite 1100 Irvine, CA 92612 -2425 Attn: James D. Stroffe, Esq. JStroffegFSGLaw.com Master Civic Partners- Elsinore LLC Developer: c/o Civic Partners 7777 Center Street, Suite 300 Huntington Beach, CA 92647 Attn: Steven P. Semingson SPSemingson@Civiepartners.com With Friedman Stroffe & Gerard, P.C. Copies to: 19800 MacArthur Blvd., Suite 1100 Irvine, CA 92612 -2425 Attn: James D. Stroffe, Esq. JStroffekFSGLaw.com A Party may change its address for delivery of notices or provide for an additional address or addresses to which copies of notices shall be delivered by providing Notice to the other Parties of the new or additional address or addresses in the manner specified in this Section. 902. Nonliability of City and Agency Officials and Employees; Conflicts of Interest. Except with respect to any breach of the representations and warranties set forth in Section 204.1 of this Agreement, no member, official, employee, or contractor of Agency shall be personally liable to Developer or Master Developer in the event of any default or breach by Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc —g 1 Agency or for any amount which may become due to Developer or Master Developer on any obligations under the terms of this Agreement. No member, official, employee, or agent of Agency shall have any direct or indirect interest in this Agreement nor participate in any decision relating to this Agreement which is prohibited by law. 903. Time is of the Essence; Force Majeure Delays; Extension of Times of Performance. Time is of the essence in the performance of each of the Parties' respective obligations set forth in this Agreement. In addition to specific provisions of this Agreement providing for extensions of time, no Party shall be deemed to be in default and times for performance hereunder shall be extended where delays are due to war insurrection; any form of labor dispute; lockouts; riots; floods; earthquakes; fires; acts of God or of third parties; third party litigation; acts of a public enemy; referenda; acts of or failures to act by governmental authorities (except that the failure of Agency to act as required hereunder shall not excuse its performance); moratoria; epidemics; quarantine restrictions; freight embargoes; unusually severe weather; inability to secure necessary labor, materials, or tools; or other similar causes beyond the reasonable control and without the fault of the Party claiming an extension of time to perform (collectively, a "Force Majeure" delay); provided, however, that the Party claiming the existence of a Force Majeure delay and an extension of its obligation to perform shall notify the other Party or Parties of the nature of the matter causing the delay within ninety (90) days after such Party knew or should have known of the basis for claiming existence of a Force Majeure delay and an extension of its obligation to perform; and, provided further, that the extension of time shall be only for the period of the Force Majeure delay. Notwithstanding the foregoing, in no event shall Developer and /or Master Developer be entitled to any Force Majeure delay or delays with respect to its or their respective obligations to timely proceed with development of the Developer Property and the Master Developer Property due to an inability to obtain financing or as a result of general market conditions, interest rates, or other similar circumstances that make development impossible, commercially impracticable, or infeasible. In this regard, Developer and Master Developer expressly assume the risk regarding general market conditions, interest rates, and other similar circumstances that may make development impossible, impracticable, or infeasible, whether or not such events or causes are foreseeable as of the Agreement Date. Nothing in this Agreement is intended to limit Developer's or Master Developer's rights and remedies, however, to the extent that Agency is in default hereunder or substantially contributes to the delay. Bankruptcy of Developer or Master Developer or foreclosure by a lender or investor on all or a part of the Developer or Master Developer Property or on an ownership interest in developer or Master Developer shall not constitute a Force Majeure for purposes of extending the Schedule of Performance hereunder. Clean Amnd Restd DDA - LMM comments Draft 030211- -82_ AGENDA.doc 904. Interpretation. The Parties acknowledge that this Agreement is the product of mutual arms- length negotiation and drafting and that all Parties have been represented by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction which provides the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. In any action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to any extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine and give effect to the intention of the Parties. 905. Entire Agreement; Waivers and Amendments. This Agreement supersedes all negotiations or previous agreements between Developer and /or Master Developer, on the one hand, and Agency, on the other hand, with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Party to be charged with the waiver, and all amendments hereto must be in writing and signed by the appropriate authorities of Agency, Developer, and /or Master Developer, with the understanding that Developer's approval shall not be required for any amendment of this Agreement that pertains solely to properties other than the Developer Property and that do not jeopardize or impair Developer's rights or modify Developer's obligations hereunder, and Master Developer's approval shall not be required for any amendment of this Agreement that pertains solely to properties other than the Master Developer Property and that do not jeopardize or impair Master Developer's rights or modify Master Developer's obligations hereunder. Agency's Executive Director shall have the authority on behalf of Agency to approve minor, non - substantive clarifications of or amendments to this Agreement that do not materially change Agency's rights or obligations hereunder. In this regard, the Parties acknowledge that lenders commonly require clarifications or minor amendments to comply with lending requirements and assure that the security for repayment of their loan is protected. 906. Consents; Reasonableness; Form of Notice Requesting Approval if Failure to Timely Respond Deemed an Approval. Except to the extent that a Party expressly reserves the right in this Agreement to withhold its consent or approval in its sole and absolute discretion, in the event that Agency, Developer, or Master Developer shall require the consent or approval of any other Party or Parties in fulfilling any agreement, covenant, provision, or condition contained in this Agreement, such consent or approval shall not be unreasonably withheld, delayed, or conditioned by the Party or Parties from whom such consent or approval is sought. Any request that is submitted to Agency in accordance with Section 901 for approval of any document or matter that is deemed approved by the express provisions of this Agreement if not acted upon by Agency within a specified time shall contain the following all capitalized Clean Amnd Restd DDA - LMM comments Draft 030211- —83- AGENDA.doc heading in no less than 12 point bold type on the first page of the request in order for the "deemed approved" provisions of this Agreement to be enforceable against Agency: ATTENTION EXECUTIVE DIRECTOR: THIS IS A REQUEST FOR AGENCY APPROVAL OF THE [DOCUMENT /MATTER] REFERRED TO HEREINBELOW. PLEASE REVIEW THE MATERIAL AND APPROVE OR DISAPPROVE IT IN WRITING WITHIN THE TIME ESTABLISHED THEREFOR IN THE DISPOSITION AND DEVELOPMENT AGREEMENT. FAILURE TO DISAPPROVE WITHIN THE ALLOTTED TIME WILL BE DEEMED AN APPROVAL. 907. Execution. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 908. No Third Party Beneficiaries. Notwithstanding any other provision of this Agreement to the contrary, no person or entity other than City (who is expressly made a third party beneficiary hereof), Agency, Developer (including any Affiliate of Developer), and Master Developer, and the permitted successors and assigns of any of them, shall be authorized to enforce the provisions of this Agreement. 909. Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. In the event that all or any portion of this Agreement is found to be unenforceable, this Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the Parties; and the Parties further agree that in such event, and to the maximum extent permitted by law, they shall take all steps necessary to comply with such procedures or requirements as may be necessary in order to make valid this Agreement or that portion which is found to be unenforceable. 910. Amendment and Restatement of 2002 DDA This Agreement is an amendment and restatement of the 2002 DDA and shall, upon the Agreement Date, amend and restate the 2002 DDA. This Agreement is entered into to effectuate the purposes of the 2002 DDA and implement the Rancho Laguna Project Area II Redevelopment Plan and the Rancho Laguna Project Area III Redevelopment Plan by providing for development of the Project on the Specific Plan Area included therein, all in accordance with said Redevelopment Plans and the Redevelopment Law. Clean Amnd Restd DDA - LMM comments Draft 030211- -84- AGENDA.doc 911. Amendment of Redevelopment Plans. Agency covenants that no amendments of any of the Redevelopment Plans that change the uses or development permitted within the Specific Plan Area or any of the financial provisions of the Redevelopment Plans in a manner that would jeopardize or impair Agency's payment of the portion of the Developer's Share of the Developer Property Tax Revenues and Extraordinary Infrastructure Costs that are payable to Developer hereunder and the portion of the Master Developer's Share of the Master Developer Property Tax Revenues that are payable to Master Developer hereunder shall be made or become effective without the prior written consent of the benefited Party or Parties (either Developer, Master Developer, or both). Other amendments to the Redevelopment Plans that do not jeopardize or impair Developer's and Master Developer's rights hereunder may be made by Agency (and the City) without the benefited Party's or Parties' consent. 912. Tax Consequences. Developer and Master Developer acknowledge that they may experience tax consequences as a result of their receipt of payments provided for in this Agreement and agree that they shall bear any and all responsibility, liability, costs, and expenses connected in any way therewith. [SIGNATURES ON NEXT PAGE] Clean Anmd Restd DDA - LMM comments Draft 030211 - AG EN DA.doc —85- IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be effective as of the Agreement Date specified herein. REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a public body, corporate and politic ( "Agency ") By: Its: APPROVED AS TO FORM: Leibold McClendon & Mann, L.P. By: Barbara Zeid Leibold, Agency Counsel ATTEST: Agency Secretary [SIGNATURE PAGE TO AMENDED AND RESTATED DDA] [PAGE 1 OF 21 Clean Anwd Restd DDA - LMM comments Draft 030211 - AGENDA.doc MCMILLIN SUMMERLY LLC, a California limited liability company ( "Developer ") By: McMillin Growth Summerly, LLC, a Delaware limited liability company Its: Managing Member By: Acorn Grand Investor, L.P., a Delaware limited partnership Its: Managing Member By: Its: CIVIC PARTNERS- ELSINORE LLC, a California limited liability company ( "Master Developer ") By: Liberty Founders LLC, a California limited liability company Its: Sole Member By: Steven P. Semingson Its: [SIGNATURE PAGE TO AMENDED AND RESTATED DDA] [PAGE 2 OF 21 Clean Anind Restd DDA - LMM comments Draft 030211 - AGENDA.doc Clean Amnd Restd DDA - LMM comments Draft 030211 - AGENDA.doc ATTACHMENT 1 BACKBONE INFRASTRUCTION SCOPE OF WORK [Attached] Clean An,nd Restd DDA - LMM comments Draft 03021I.doc ATTACHMENT I R 1 1 1 112' t LANLpOSCAP� 16* 33' A(WAW AIEV AN BY H.OrI 6' 13' 14' 8!K UNE LANE 2X AAN. i 0.77' ?Mr. 33' 6' LMf L � R/W UNDXW 16Y H.OA �I 1 A M11 DE WX30W 5' WE MEMDU" k4 SMEW . sm Fm CWY of 10 -Ir CURB OVUM PD. PO V PER W. T'D. . IV /I9 A o R S i2ot � ACt� Il8• OTO sops E !y WU 5 DIAMOND DRIVE N. T.S. Determination of completion for backbone roads. Construct the improvements within the right of way consistent with the approved improvements plans consisting of the following: Sewer • Domestic water o Reclaimed water • Storm drain • Dry utilities • Road base and final lift of AC Street lights • Median landscape and irrigation Signage & striping Note: Sidewalks and parkway landscaping and irrigation is required prior to warranty and for final acceptance by the city but not completeness determination for the DDA, so long as adequate security is provided in accordance with City requirements Rl*# t R/W 1 74' 1(R.0.W.) _ 1 LOT f 5- 8' 19' !0' 19' �TN1A►N BY H.O A SW PW 6' 1 ' Al � ' 6' PW N, O.A. BNl WE 5' LANE �!K � 2X 2X I M1N, ( t! ) 5' WIDE TYPE 'S�EWALK � �s MV to fl QnfrDM STO. /201 �5' A.B. BE DETEWN ` ,8Y SOLS Ewa 2X N ___.. WE SiDEW 8� M I '� - tpTYK r *A-fl tXiRB(���\ O TYPE .� CURB f�ER 1M/���� OF \ J PfR CoUtf(Y of 3 atVERS�DE 5TD. j201 �/ sTO. / AE D ff A 8. #fH. 4 TO BY BLS ENGOW 4 i HIDDEN TRAIL. SUMMERLY PLACE NITS. Determination of completion for backbone roads: Construct the improvements within the right of way consistent with the approved improvements plans consisting of the following: • Sewer • Domestic water • Reclaimed water • Storm drain • Dry utilities • Road base and final lift of AC • Street lights • Median landscape and irrigation • Signage & striping Note: Sidewalks and parkway landscaping and irrigation is required prior to warranty and for final acceptance by the city but not completeness determination for the DDA, so long as adequate security is provided in accordance with City requirements R/W 84' R.O.W. RIW !V0 ALLOWED 51 5 f 90 18' 10' 18' 9' LANDSCAPE SAY PW M 0. PW SW UNDSGAf�E 2X AW LOT I I�tAINTAWED UWAINED 51i i BY H.O.A BY N.O.A. � zx M1N. 2, p O5' WIDE SIl VAIK r .� 5' ME S $ TYPE 'A"g CURB CURB KR C"W OF O','d="OF !r TYK If t� R IVERSIDE STD. f 201 RIVERSIDE S10. 1201 A.C. /t(i 1�9. 1lN. 4 � /td �e w+.) SID I TO BE 4 OBK W Dow BY SDIUS ENGMW MAX PAMY (IE0 SM 54+44.301 � To STiI. 18+ 64.9 WA p�'Ay. (M+'S7) STA. 12 +94.6 VILLAGE PARKWAY AND MEADOW N.T.S. Determination of completion for backbone roads: Construct the improvements within the right of way consistent with the approved improvements plans consisting of the following: Sewer Domestic water Reclaimed water • Storm drain Dry utilities Road base and final lift of AC Street lights Median landscape and irrigation Signage & striping Note: Sidewalks and parkway landscaping and irrigation is required prior to warranty and for final acceptance by the city but not completeness determination for the DDA, so long as adequate security is provided in accordance with City requirements ATTACHMENT 2 DESCRIPTION OF DEVELOPER PROPERTY AS OF AGREEMENT DATE [To Be Inserted] Clean Amnd Restd DDA - LMM comments Draft 03021 I.doc ATTACHMENT 2 ATTACHMENT 3 DESCRIPTION OF MASTER DEVELOPER PROPERTY AS OF AGREEMENT DATE [To Be Inserted] Clean An,nd Restd DDA - I MM continents Draft 03021 Ldoc ATTACHMENT 3 ATTACHMENT 4 NOTICE OF ACQUISITION OF PROPERTY DATE: TO: Executive Director of the Redevelopment Ageney of the City of Lake Elsinore and Agency Counsel Notice is hereby given that on the Acquisition Date set forth below the person set forth below as Owner acquired the property more particularly described below and that the same constitutes Master Developer Property for the following reasons: The property is located in the Specific Plan Area as defined in the AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT ( "DDA ") is entered into as of March , 2011; 2. The property is not Developer Property as defined in the DDA; The property was acquired by the Master Developer, or an Affiliate of Master Developer as defined in the DDA; and 4. If the acquiring entity is an Affiliate of Master Developer, the relationship to Master Developer is as follows: Acquisition Date: Owner: Property Description: [insert APN and legal description] Sincerely, Civic Partners- Elsinore, LLC LIZA Steven P. Semingson, Manager Clean Amnd Restd DDA - LMM continents Draft 03021 l.doe ATTACHMENT 4 ATTACHMENT 5 NOTICE OF COMMENCEMENT TO: Executive Director of the Redevelopment Agency of the City of Lake Elsinore and Agency Counsel Date: Phase Number: Phase Description: Phase Scope of Work: See attached Notice of Right to Commence Phase. Date of Pre - Commencement Meeting: Commencement Date: [SIGNATURE BLOCK FOR DEVELOPER OR MASTER DEVELOPER] Submitted by: By: Its: , LLC, a limited liability company By: Its: Clean Anmd Restd DUA - LMM comments Draft 03021 Ldoc ATTACHMENT 5 ATTACHMENT 6 NOTICE OF COMPLETION AND REQUEST FOR ISSUANCE OF RELEASE OF PROJECT DEVELOPMENT COVENANTS TO: Executive Director of the Redevelopment Agency of the City of Lake Elsinore and Agency Counsel Date: Phase Number: Phase Description: Description of Phase Scope of Work Required for Achieving Completion of Development of Phase: See attached Notice of Right to Commence See attached evidence of completion, including any certificates of engineers or bonds or other security required for completion: _ pages. See also attached form of release of Project Development Covenants for execution by Agency. Date of Pre - Commencement Meeting: Commencement Date: Date of Substantial Completion: Agency Approval of Completion: IC Date: [SIGNATURE BLOCK FOR DEVELOPER OR MASTER DEVELOPER] [Type Name], Executive Director Clean Amnd Restd DDA - LMM comments Drafl 03021 l.doc ATTACHMENT 6 ATTACHMENT 7 MAP DEPICTING LOCATION OF AGENCY -OWNED PROPERTIES IN SPECIFIC PLAN AREA AS OF AGREEMENT DATE [To Be Inserted] Clean Anmd Restd DDA - LMM comments Draft 03021 I.doc ATTACHMENT 7 ATTACHMENT 8 PHASE MAP [Attached] Clean Anmd Restd DDA - LMM comments Draft 03021 I.doc ATTACHMENT 8 "gag'.. Viz�� T. ,,I soar is P4� !,ICA 'down"A my" =A 1. "gag'.. Viz�� T. ,,I soar is P4� !,ICA 'down"A my" =A . . . . . . . . . . . . . . . . . IT ARM AMR W, "gag'.. Viz�� T. ,,I soar is P4� !,ICA 'down"A my" =A ATTACHMENT 9 PHASE 1 SCOPE OF WORK Phase 1 Scope of Work shall consist of (i) certification by the City Engineer that all rough grading in Phase 1 has been completed and all erosion control improvements have been installed in accordance with applicable grading plans and permits, and (ii) the action items on the chart attached hereto. Clean Amnd Restd DDA - LMM comments Draft 03021 I.doc ATTACHMENT 9 H G ww T V d 7 H W W W m W W m a k o0 m ia W w W m ro W E y ro E rW c3 A ro v W Y C F E E E lo E E 1 e E o E E M E a ac UU UU U U U MMIIII U U U C U " > U a a W W W m W W m W g o0 m ia W w W m ro W E y ro E rW c3 A ro v W W 'v C E E E E E E E E E a E o E E M E a ac UU UU U U U U U U U C U " > U a a 17L Q 2 c 3 rtL � � 5 dm S.m ro aA ro c c o c c c o c n•- N E a y a E a p N E E E N O E E 3 ,Q Q Q Q Q Q p ` o L L L L L_ L_ N OO (0 L O N roL. v U •C .; .;3 «O E W W W a> W a t c c c c c `c c c o A o c c o m a o o aci v aci aci 0 c U C E E E n E 0 020 i W t W W t t d ;! W t o E> a o f - CL o t o E> o f t t W > > .Y. 0 Ev�0 0 0 p v E, n° u 'uu u' u u vEiv°o`a u o �v a ot9uv 0 0 o v c o c 0 c c 0 0 0 0 o Q co E o 0 0 0 0 0 Q Q U U m U U U U d N a7 yM V yM N o d N o° o rn 0 E rn E N N a LQ Q Q Q Q Q Q_ Q Q Q Q Q Q Q Q1 m m Q Q Q Q Q ro m c o d o m ro E W E .m v c o 3 0 E2 W O O ro m .E C C - J Z' E .� N 60 O m Z V y C C o� c C_ w m ,E_ o c �' E W Z. 10 v m c c c .o W E .-. c c 'S C, ° c C v o W Ems_ m° '0 N,E om N SW 0u 00 o�p ¢ `o E °cam p ooNE NC odyvx Cvp o - Z -C ; y o a ro 'N m L U v Q m ro �p ro N Q y V�p -� y c ro 3 0 m «. m « 0 Q c ro cc S d N sp ML U N a V p C. a7 N ro V ro O a O C t� ro m Y O p Cp U V U V ro N O C N U p y `C W ; W ro "' C L O W C 'p ro 4' Q> °c W c c IO y c c c ro o ro 3 W c N rn– cro c W o E c o c o N c v C c o v a c N ro W E 0m m d =m Ny Yp va N° 2 c C moo° m Ev K Of o > a_ > 2 o_ ro W «v2 E 0 N 0 c W— m w U 2 ° E E 0 0 `N _'m w c io u U a v N 0 0 o N- .0 �a U N c Of CpJ –M – — — -- -- --- T T d c c. O O y c:o m m m m W N �:C N C C O W .0 C -o ro ro N 'ro :C io O U) 'U) ro 'c ro '10, 'W 'W 'W .N ,p ,p ,p :y :tm m .o ;N o f 'E 2 rn rn ;o .w '� W m 'a ,- E y y M p %p O .y c :c p ,p >E "E ;E o !m o ,ro E :E J ,° ro O -- �c ro W �ro ,ro 22 j� � 'L V L7 C C y N �N y M .E C :- 'U) :(n ;U) -� 0.0 'x W W .� i ATTACHMENT 10 RELEASE OF PROJECT DEVELOPMENT COVENANTS [Attached] Clean Amid Restd DDA - i.MM comments Dian 03021 Edoe ATTACHMENT 10 RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: [Insert name and address of Developer or Master Developer, as applicable] SPACE ABOVE THIS LINE FOR RECORDER'S USE EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383 RELEASE OF PROJECT DEVELOPMENT COVENANTS WHEREAS, , a California limited [insert legal name of either Developer or Master Developer], is the owner in fee of that certain real property legally described in Exhibit "A" attached hereto (the "Property ") and incorporated herein by reference; and WHEREAS, by an Amended and Restated Disposition and Development Agreement ( "DDA ") dated March _, 2011, by and among the REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a public body corporate and politic ( "Agency "), MCMILLIN SUMMERLY, LLC, a Delaware limited liability company ( "Developer "), and CIVIC PARTNERS- ELSINORE LLC, a California limited liability company ( "Master Developer ") [Developer /Master Developer] has satisfactorily completed development of the portion of the "Project" to be developed on and with respect to the Property in accordance with the DDA; and WHEREAS, pursuant to Section 511 of the DDA, following Developer's or Master Developer's Completion of Development of a Phase of the Project in accordance with the DDA, and timely issuance of a Notice of Completion, upon request by [Developer /Master Developer], Agency's Executive Director shall furnish [Developer /Master Developer] with a Release of Project Development Covenants in such form as to permit it to be recorded in the Official Records of the County of Riverside; and WHEREAS, the issuance by Agency of the Release of Project Development Covenants shall be conclusive evidence that [Developer /Master Developer] has complied with the terms of the DDA pertaining to development of said portion of the Project on the Property; and WHEREAS, [Developer /Master Developer] has requested that Agency furnish [Developer /Master Developer] with the Release of Project Development Covenants; and WHEREAS, Agency has conclusively determined that development of the portion of the Project to be developed on the Property has been satisfactorily completed as required by the DDA. NOW, THEREFORE: 1. As provided in the DDA, Agency does hereby certify that development of the portion of the Project to be developed on the Property has been fully and satisfactorily performed and completed, and that such work is in full compliance with said DDA. 2. This Release of Project Development Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of [Developer /Master Developer] to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance development or construction work on the Property, or any part thereof. 3. This Release of Project Development Covenants is not a Notice of Completion as referred to in California Civil Code Section 3093. 4. Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the DDA or any other provisions of any agreements or documents referenced therein. IN WITNESS WHEREOF, Agency has executed this Release of Project Development Covenants as of this day of , REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a public body, corporate and politic Alt 10 to DDA Release of Project Dev Cov 030311.doc0311 2 Executive Director CONSENT TO RECORDATION , owner of the fee interest in the real property legally described in Exhibit "A" attached hereto, hereby consents to the recordation of the foregoing Release of Project Development Covenants against said real property. [Insert signature block for Developer or Master Developer, as applicable] All 10 to DDA Release of Project Dev Cov 030311.doc031 1 3 ATTACHMENT 11 SCHEDULE OF PHASE DEVELOPMENT Phase Commencement* Completion of Development* Phase I On Agreement Date Within 12 months After Agreement Date Phase A Within 18 Months After Within 18 months of Commencement Completion of Development of of Phase A Phase I Phase B Within 18 Months After Within 18 months of Commencement Commencement of Phase A of Phase B Phase C Within 18 Months After Within 18 months of Commencement Commencement of Phase B * ** of Phase C Phase D Within 18 Months After Within 18 months of Commencement Commencement of Phase C * ** of Phase D Phase E Within 18 Months After Within 18 months of Commencement Commencement of Phase D * ** of Phase E Phase F Within 18 Months After Within 18 months of Commencement Commencement of Phase E * ** of Phase F Phase G Within 18 Months After Within 18 months of Commencement ** Commencement of Phase F * ** of Phase G ** * Subject to extension for Force Majeure delays and time extensions as provided in Section 501.2(e). ** All Phases shall be completed no later than March 31, 2026, including any extensions as provided in Section 501.2(e), but excluding any Force Majeure delays. * ** If any Phase of the Project on the Developer Property is combined with another Phase of the Project on the Developer Property pursuant to the Phase Commencement protocol set forth in Section 501.2(b), the combined Phases shall be deemed a single Phase for all purposes relating to the timing requirements for Completion of Development, but Developer shall receive a "Credit" with respect to commencement of the next Phase in accordance with Section 501.2. Clean Amnd Restd DDA - LMM comments Drafi 03021 l.doc ATTACHMENT I I ATTACHMENT 12 SPECIFIC PLAN AREA MAP [Attached] Clean Amnd Remd DDA - LMM comments Drafl 03021 I.doc ATTACHMENT 12 Li i BUNDY CANYON ROADS East Lake Specific Plan NORTH SCALE: , �' WLN STFEEr 0 .5 1 MILES F1. nyy. L C i ''n ld ..4 /Ab I 1 r i LAKE EL.SNOF18 lip In r■ Amwi f � SPA 6 Il East Lake Specific Plan Boundary �� � ►.. �, � e BUNDY CANYON ROADS East Lake Specific Plan NORTH SCALE: 0 .5 1 MILES BUNDY CANYON ROADS East Lake Specific Plan ATTACHMENT 13 LEGAL DESCRIPTION OF STADIUM [To Be Inserted] Clean Amnd Restd DDA - L.MM comments Draft 03021 Ldoc ATTACHMENT 13 ATTACHMENT 14 LEGAL DESCRIPTION OF STADIUM PARKING LOT Real property in the City of Lake Elsinore, County of Riverside, State of California, described as follows: PARCEL 3, AS SHOWN BY PARCEL MAP 27852, ON FILE IN BOOK 182 PAGES 19 THROUGH 24, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. Clean Amnd Resid DDA - LMM comments Draft 03021 Ldoe ATTACHMENT 14 ATTACHMENT 15 CONSENT TO TRANSFER AGREEMENT [attached] Clean Aumd Restd DDA - LMM comments Draft 030211.doc ATTACHMENT 15 [Letterhead] [date] VIA OVERNIGHT MAIL Lake Elsinore Redevelopment Agency 130 S. Main Street Lake Elsinore, CA 92530 Attn: Executive Director Leibold McClendon & Mann, P.C. 23422 Mill Creek Drive, Ste 105 Laguna Hills, CA 92653 Attn: Barbara Z. Leibold, Esq. Re: Request for Consent to Transfer under Disposition and Development Agreement (DDA) ATTENTION EXECUTIVE DIRECTOR: THIS IS A REQUEST FOR AGENCY APPROVAL OF THE TRANSFER OF THE PROPERTY REFERRED TO HEREINBELOW. PLEASE REVIEW THE MATERIAL AND APPROVE OR DISAPPROVE IT IN WRITING WITHIN 30 DAYS. FAILURE TO DISAPPROVE WITHIN 30 DAYS WILL BE DEEMED AN APPROVAL. As required by Agency, the attached Consent to Transfer and Release has been signed by the developer but not the Agency. In the event Agency consent is deemed to be given due to Agency's failure to disapprove within 30 days, the attached Consent to Transfer shall become enforceable as against each of the parties thereto. CONSENT TO TRANSFER AGREEMENT This Consent to Transfer Agreement (this "Consent ") is made by and among The Redevelopment Agency of the City of Lake Elsinore ( "Agency ") and McMillin Summerly, LLC ( "McMillin ") (each, a "Party" and collectively, the "Parties "). This Consent is entered into pursuant to that certain Disposition and Development Agreement dated December 26, 2002 ( "DDA ") by and among the Agency, Laing -CP Lake Elsinore LLC ( "Laing ") and Civic Partners - Elsinore, LLC. All capitalized terms used but not defined in this Consent shall have the same meanings given thereto in the NMI' A. WHEREAS, McMillin currently holds fee title to land previously owned by Laing, which such land is subject to the DDA; B. WHEREAS, McMillin, as seller, and a ( "Builder "), as buyer, have entered into an agreement dated ( "Agreement ") for the purchase and sale of certain real property located in the city of Lake Elsinore more particularly described as Exhibit A attached hereto and incorporated herein by reference ( "Property "); C. WHEREAS, prior to the Agency's issuance of the Release of Project Development Covenants, the Developer under the DDA is obligated pursuant to Section 205 of the DDA to obtain the Agency's prior written approval of the transfer of the Property to Builder; D. WHEREAS, McMillin and Agency anticipate that McMillin will assume the rights and obligations of Laing as the Developer under the DDA, and, as such, McMillin desires to comply with the terms of the DDA even though it is not yet a party thereto; E E. WHEREAS, in conjunction with the transfer of the Property to Builder pursuant to the Agreement, McMillin is not assigning any rights or obligations as the "Developer" under the DDA; F. WHEREAS, because no assignment of rights or obligations under the DDA is being given, no Assignment and Assumption Agreement is required under the DDA, only the Agency's consent; and G. WHEREAS, the Agency desires to consent to McMillin's transfer of the Property to Builder pursuant to the Agreement upon the terms and conditions set forth below. NOW, THEREFORE, in consideration of the foregoing Recitals and other valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows: 1. Incorporation of Recitals. The Agency and McMillin hereby acknowledge the truth and accuracy of the recitals and incorporate the same herein by this reference. 2. Representations and Warranties. McMillin represents, warrants and covenants to Agency (with the understanding that Agency is relying on these representations, warranties and covenants in giving its consent) that (i) no assignment or assumption of the rights or obligations of McMillin as the "Developer" under the DDA is occurring in connection with the transfer of the Property pursuant to the Agreement, nor shall such assignment and assumption occur subsequent to the transfer of the Property without the prior written consent of Agency sought and given in accordance with the applicable provisions of the DDA, and (ii) concurrently with its submission of this Consent, McMillin has provided Agency and /or its counsel with a corporate biography and related background information for the Builder. 3. Consent. The Agency hereby consents to McMillin's transfer of the Property to Builder pursuant to the Agreement. 4. Indemnity. McMillin hereby agrees to indemnify, defend and hold the Agency, members of Agency's Board of Directors, the City of Lake Elsinore ( "City "), the 3 members of the City Council, and City's and Agency's officers, agents, representatives, assigns, employees, consultants, insurers, attorneys, and successors in interest, harmless from and against any claims, damages, demands, liabilities, losses, judgments, expenses and attorneys' fees and /or costs resulting from (i) any breach of this Consent, including, without limitation, any representation, warranty or covenant; (ii) any third party claims arising in connection with this Consent and /or the transfer or proposed transfer of the Property to Builder; and (iii) any claims between Builder and /or McMillin. 5. Miscellaneous. a. Binding Effect. This Consent shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. b Further Actions. The parties agree to execute such further documents, and take such further actions, as may reasonably be required to carry out the provisions of this Consent, or any agreement or document relating hereto or entered into in connection herewith. C. Severability. If any term, provision, condition or covenant of this Consent or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Consent, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. d. Governing Law. This Consent shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflict of law. e. Headings. The headings herein are included for ease of reference only and shall not control or affect the meaning or construction of the provisions of this Consent. G! f. Amendments. This Consent cannot be amended, supplemented or modified except by an agreement in writing which makes specific reference to this Consent, and which is signed by the party against which enforcement of any such amendment, supplement or modification is sought. g. Counterparts. This Consent may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. h. Attorneys' Fees. In any action between the Parties to enforce or interpret any of the terms or provisions of this Consent, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief or other relief, to its reasonable costs and expenses, including, without limitation, costs and expenses of litigation and reasonable attorneys' fees. i. Entire Agreement. This Consent contains the entire agreement of the Parties, and supersedes any prior written or oral agreements between them concerning the subject matter of this Consent. SIGNATURES APPEAR ON NEXT PAGE 5 IN WITNESS WHEREOF, the undersigned have executed this Consent as of the date first above written. �B•° MCMILLIN SUMMERLY, LLC, a Delaware limited liability company Title: AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE Name: Title: Executive Director R [to be inserted] ATTACHMENT 16 LEGAL DESCRIPTION OF TRACT NOS. 31920 -1 THROUGH 31920 [To be inserted] Clean Amnd Restd DDA - LMM comments DO 030211.doc ATTACHMENT 16 ATTACHMENT 17A NOTICE OF RIGHT TO COMMENCE PHASE (DEVELOPER) Date: This Notice of Right to Commence was issued at the conclusion of the Pre - Commencement Meeting held on the date indicated below with respect to the Phase of the Project on the Developer Property described below and sets forth the Phase Scope of Work required to achieve Completion of Development for such Phase. Developer represents and warrants that all permits required as a condition to Commencement have been issued or will be issued upon payment of applicable permit fees prior to commencement. Pre - Commencement Meeting Date: Phase Description: The Phase Scope of Work (required for achieving Completion of Development of the above Phase) shall include: (i) rough grading within the boundaries of the Phase in accordance with applicable grading plan(s); (ii) erosion control improvements within the boundaries of the Phase required as conditions to rough grading; (iii) the Backbone Infrastructure Scope of Work for the streets included in such Phase (as attached hereto); (iv) the following infrastructure improvements required as a condition of approval to SPA 6, tentative tract maps, Army Corps of Engineers Section 404 Permit or other entitlements and permits the satisfaction of which is triggered in accordance with the Implementing Matrix after commencement of the preceding Phase and prior to the commencement of the current Phase: and (v) the following modifications to the Backbone Infrastructure Scope of Work, if any, due to the Developer's change in the Phase sequence: [SIGNATURE PAGE FOLLOWS] Clean Amnd Restd DDA - LMM comments Draft 03021 l.doc ATTACHMENT 16 Agreed: REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE ( "AGENCY ") Executive Director Acknowledged: MCMILLIN SUMMERLY LLC, a California limited liability company ( "Developer ") By: McMillin Growth Summerly, LLC, a Delaware limited liability company Its: Managing Member By: Acorn Grand Investor, L.P., a Delaware limited partnership Its: Managing Member By: Its: Clean Anmd Restd DDA - L.MM comments Draft 03021 Ldoc ATTACHMENT 17B NOTICE OF RIGHT TO COMMENCE PHASE (MASTER DEVELOPER) Date: This Notice of Right to Commence was issued at the conclusion of the Pre - Commencement Meeting held on the date indicated below with respect to the Phase of the Project on the Master Developer Property described below and sets forth the Phase Scope of Work required to achieve Completion of Development for such Phase. Master Developer represents and warrants that all permits required as a condition to Commencement have been issued or will be issued upon payment of applicable permit fees prior to commencement. Pre - Commencement Meeting Date: Phase Description: The Phase Scope of Work (required for achieving Completion of Development of the above Phase) shall include: (i) rough grading within the boundaries of the Phase in accordance with applicable grading plan(s); (ii) erosion control improvements within the boundaries of the Phase required as conditions to rough grading; (iii) backbone infrastructure for the streets included in such Phase (as attached hereto); (iv) the following infrastructure improvements required as a condition of approval to tentative tract maps, Army Corps of Engineers Section 404 Permit or other entitlements and permits the satisfaction of which is triggered after commencement of the preceding Phase and prior to the commencement of the current Phase: (v) sequence: and the following modifications, if any, due to the Developer's change in the Phase [SIGNATURE PAGE FOLLOWS] Clean Au,nd Restd M>A - LMM comments Draft 03021 I.doc ATTACHMENT 17 Agreed: REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE ( "AGENCY ") C Executive Director Acknowledged: CIVIC PARTNERS - ELSINORE LLC, a California limited liability company ( "Master Developer ") By: Liberty Founders LLC, a California limited liability company Its: Sole Member C Clean Amnd Restd DDA - I.MM comments Draft 03021 I.doc Its: Steven P. Semingson ATTACHMENT 18 PROJECT PHASING AND EXTENSION TABLE [EXAMPLE ONLY] [Attached] Clean Amnd Restd DDA - LMM comments Draft 03021 I.doc ATTACHMENT 18 \ \ \ \ G / E \ a c »o \V) E Oac=c E ~2® z § \ \k\ z u\\\\ / ©2© z =zJ= O(2(\ »©\© z 99® Q \ u2 %2 / ~»~ z § _0020 2© /© z E <»c,c / ~ »~ z _ gm \\ j© u / ƒ \ [ [ �U U _occcoc mc2ogoo .§[mesas& ( § {s 20/0/0// /% ƒ ƒ/ƒ � §0000{ occcoc occcoc 9R92RR uQo6oc66 -r »cr_ .2G \easy&& � (/ { { o § o o /\////// S / a \ k»G\§ t � �@ # °k _ § \ r _ { / / E ° .2 E »'§ = z § \ \ , e \ < 0 c _ \ E E / \ E y / / ATTACHMENT 19 STATEMENT OF DEVELOPER'S EXTRAORDINARY INFRASTRUCTURE COSTS TO: Executive Director of the Redevelopment Agency of the City of Lake Elsinore COPY TO: Legal Counsel COPY TO: Financial Consultant Date: Amount of Extraordinary Infrastructure Costs for Which Reimbursement is Sought: [Itemize, then total] Description of Extraordinary Infrastructure Costs for Which Reimbursement is Sought: To the extent applicable to the costs for which Reimbursement is sought, attached please find the following with respect to the Extraordinary Infrastructure Costs for which reimbursement is sought: (i) the written contract(s), purchase order(s), or other evidence of commitment, including any amendment(s) or change order(s) relating thereto, pursuant to which the Extraordinary Infrastructure Costs were incurred (to the extent not previously provided); (ii) a narrative or line item identification of the particular expenses Developer has incurred, with sufficient detail to enable Agency's Executive Director to verify the eligibility of such expenses (or portions thereof) for payment or reimbursement; (iii) the invoices, copies of canceled checks, or other documents evidencing Developer's payment of said expenses; and (iv) lien releases from all contractors and suppliers for which payment reimbursement is being requested. With respect to the Extraordinary Infrastructure Costs for which reimbursement is sought pursuant to this request, to its actual knowledge, the Developer hereby represents, warrants, covenants and certifies as follows as of the date set forth above: 1. There exists no Default by the Developer under that certain Amended and Restated Disposition and Development Agreement dated March , 2011 (the "DDA "), nor any event which, upon the passage of time, would constitute a Default thereunder; For purposes hereof, actual knowledge includes the knowledge of the Developer's President, Chief Financial Officer and Project Manager. Clean Amnd Restd DDA - LMM comments Drafl 03021 Ldoc ATTACHMENT 19 2. The improvements constructed with the Extraordinary Infrastructure Costs for which payment is being requested hereby have been constructed in accordance with all applicable requirements of the DDA, all permits and approvals issued by the City and /or any other governmental entity with jurisdiction over such improvements, and such construction was performed in accordance with all applicable Governmental Requirements, including, without limitation, prevailing wage requirements, if any. 3. With respect to the Extraordinary Infrastructure Costs for which reimbursement is sought pursuant to this request, such costs represent the actual costs of such improvements to Developer and are not inflated by Developer in any respect. All capitalized terms not defined herein shall have the meaning set forth in the DDA. The undersigned hereby represents, warrants, covenants and certifies the foregoing as of the date set forth above: MCMILLIN SUMMERLY LLC, a California limited liability company By: McMillin Growth Summerly, LLC, a Delaware limited liability company Its: Managing Member By: Acorn Grand Investor, L.P., a Delaware limited partnership Its: Managing Member By: Its: Clean Amnd Restd DDA - LMM comments Draft 03021 I.doc ATTACHMENT 19 ATTACHMENT 20 IMPLEMENTING MATRIX [Attached] Clean Amnd Restd DDA - LMM comments Draft 03021 ].doe ATTACHMENT 20 C) cl 0 '0 0 0 w E E U) > > > > E Cl 12 I Xx 2 2 cl Cl Cl 2 j 1J 1 c CD ;E �0> (D ID a) 1( :'2O I (U , :.-� I C, a) a Cl a' !C' 0 t-000 0 0 E I I 2 E E 0 E E 0 ICL E IE 0 0 E 0 E C, 0 -E 0 :0 0 I CD i I E 0 L) 1 8 . 2 i i 0 of 0 li tm c C, 0 !E 0 2 'D D b 0 !PL) 0 L) v E -0 'D Po � f(D F E E E 2 o 4) 9 E S R -b E 9 E 2 !E lo V 0 . 0 L) ,g w S? R w 9? M (D 2. i> m' im co co M> , :s cl M> Lc m - 0 Q � i. C, E 0 i; C, E 0 0 C' E 0 �E <D a E '0 a a:cx E RE 0 0 60 C, cl E EE o L E 60 0 E -E 0,60 ;E �!E 2 m V Lo) �0) 0.0 L) ') L) p L) L) L) 1 F0 C, N 1 C) 24 0 1 if '1 11 c 0 E 0 m c 0 E 0 c 0 cu CL E cl 0 'E CL 0 0) -M CY Q) E 4) E > 0 0 0 > m > 2 m 2 m 06 Co Q E t a 6 'D . a o E E 'o -0 a CO 'm �5 CD c an cr, ca m 0 m E 0 E - E 0 E C (D 0 a a 0 i �a M M cr C, > 0 2 .0 C, c .0 > 0 .E E m cl cc 0 '0 C *6 0 s 55 ES E o , > 0 0t1 m 0 Co . cx -6 4) m c - -6 E m M, 2 ('D Q) > 0 t5 2 w > (D z 1-- 12 c =.a E -. c - 0 > � E m > m r c 4) 0.1 Q a) co C; a 0 c 0 c c 0 0 c 0 (V E > m m 'ro E E > 2 2 -0 - E 2 z .0 w a cl E > E E > > E > 2 E 7E 2 CL -M, "r -E m C� > 5 2 2 a. a a a Fn a 0 a-) 0 C, Cl Q a CO U) ID d) 'o r < 4==! 'E' E E C& mm E - E - '9 E .- (0 M C, 2 E Q) E 0 ID > Q) c > 0 e g - r= F= F= Co 00 E 0 c c 2 2 2 2 C'3 (D 0 m 0) 0 w Q) C: 0 o a t; w '0 W 0 W < E 76 E 0 , T 0 -a E 0 0 0 0 B B 0 0 cr 2 0 C13 0 - 76 n L7 o a E cu E E t 'COD c a) t t; c c = c M = M 2 Z Z Z) Z 0 W Z W W 0 Z N F C) Cn I 01 1 1 19 1 IS Sl I I I o Z L) o o C) 0 o L) S ANN cl, > > F- L13 LL E > -0 2 > > -0 'D 2 :2 4) E 04 m F- 'a m E a 0 E E E E c, o 2 2 2 C' E cc 0 S S U) W a: > a cl w a a w w (13 - (L D n � m >= '0 �o '0 0 C C M M C C M M z z z 0 - - - 'O'D a 'a 'a C 0 > M, M, Cc .0 c C "a 'OD C C a 0 E E m 0 E E '8 E 0 E OE OE OE .m 2 062251500ETM22�20000000og m 76 m m 16 0 0 m c c c c c a c a a Lo Lo E2 0 D000000 AD .0 c c 0 c c c c N 0 c w c 0. 0 0 0 c c (L) c c (L) w c -,= 4) 40) QD OD 0 4) :3 0 cc P, 0 a, 12 P e E2 e L p :� 0 -0 -0 u 0 c) m m 0 �-: s ,M cu W ,Co Q) mo 0 a) m m >m 3 a, w m M- M- M- M. A A 2s 1 2 R C Cl Cl MAE 2 $? t a u t t -j z _5 (L) Q) m m a) a) 0 a) 0 0 0 C� M. E (�D > Co. > -0 0 0. C, N 0. 6 C ty M g 0 00 Z, m c co In CN 'D Ql CU --4 (a a r pJ 1 Ci u -6 .> >i 1 1 C:. m C� 0, > o m 6 14 4) Z 03 O= 1 'm 1 I 4 A ro c ca (D a 0 E� w E 'cc 'C2 93 c I E E 2 A A i� i'll -9 U) (n C4 0 In LO C*4 9 la 2 a cx c 0 0 C) E E CI) 21 w Q) 0 IG ME Q) O Q) 2 > 2 E Q. cl > lw o —0 le 0 E E 0 > > 0 :0,0 L) a c La 6 ,5 E -c 06 '�5 :E 0 z b 0 z p 166 g L) b co O F! v I f 0 O 0 tC M LU 0 CI SO co > m E C' = 2 > w CD > 0 = Im E m CO -2 Cl C, a C c cc c c 'E c CIO cr .0 0 E 0 > E"D 0 C > m -ca 'F, c E M V > E 0 > E w > E 4) -ja > -7, a :3 2 C, 'ja 2 E E 0 0) > > E E a) 0 > > 2 2 > E c .7 g E 2 2 P 2.a.a .0 = m m - c :E; .9 E 2 2 2 a E E 3� CL cx > 0 Cal E' E' E CL E Z Z il- u E r- E?2a gi-n22 Z02 Eo Z -2'2 C c c c c 0 U10 0 0 oc) 0 00 0 co z m 20 0 m — 0 0 0 0 0 C.) f-) > ca o a- E 0 E E E M 6 m Cr. co c> M M co = -0 c i > c a) E CN 0 -0 E "D E 2 c cc c. cc cc cd U) oc! , c 0 c mj '!-J� 'e'� 0;'. 'ff4' 4, Lo 04 T co 1 � 0 0 C N RED I co as ct C, N. as 21 Co cd z M4 I In cq dzt V. vi > 41 -cm Nip o C, < If 21 w Q) 0 Q) O Q) 2 > 2 Q. cl