HomeMy WebLinkAboutItem No. 05 2nd Amend Park Implementatio Agreement 24 Acre Park EastlakeText File
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 19-008
Agenda Date: 2/12/2019 Status: Approval FinalVersion: 1
File Type: AgreementIn Control: City Council / Successor Agency
Agenda Number: 5)
Page 1 City of Lake Elsinore Printed on 2/7/2019
Page 1 of 2
REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Grant Yates, City Manager
Prepared by: Barbara Leibold, City Attorney
Date:February 12, 2019
Subject:Second Amendment to Amended and Restated Park Implementation
Agreement for 24 Acre Park within the Eastlake Specific Plan
Recommendation
Staff recommends that the City Council approve the Second Amendment to Amended and Restated
Park Implementation Agreement in substantially the form attached and authorize the City Manager
to execute the Second Amendment in such final form as approved by the City Attorney.
Background
The East Lake Specific Plan originally contemplated the development of three parks in connection
with the Summerly Project – an expansive 24 acre community park, an adjacent 6.7 acre park site,
and an interior 4.8 acre neighborhood park site next to a proposed elementary school.
In 2012, the City and the developer forged an agreement that would return the smaller 4.8 acre site
to the developer where it would later become the site for the homeowners association’s community
center and, critically, the developer also committed to provide a high amenity, turn-key park on the
24 acre park site, constructed over three phases.
The phased construction of the 24-acre park along with the resulting park fee credits were
addressed in a Park Implementation Agreement that was approved by the City Council on April 10,
2012.
In 2015, the City Council approved an Amended and Restated Park Implementation Agreement
(“Amended Agreement”). The Amended Agreement included a significantly improved park
configuration and allowed the developer to receive up-front conditional park fee credits rather than
pay park fees in advance and then seek reimbursement as the phased construction moved forward.
In 2018, the Council approved a First Amendment that substituted Van Daele Development
Corporation for McMillin Real Estate Services, LP, as the contractor. It also made certain technical
changes to the Amended Agreement.
Second Amended and Restated Park Implementation Agreement
February 12, 2019
Page 2 of 2
Discussion
Last year, as the Summerly Park moved towards the development of Phase 3, staff determined that
one of the planned amenities (the tennis courts) would likely be underutilized while the other primary
amenity in Phase 3 (a dog park) would likely experience very high utilization. Moreover, staff
concluded that additional sports field facilities would maximize the community’s use of the park.
A concept plan was developed for Phase 3 that eliminates the tennis courts, expands the dog park,
and leaves room for development of a future sports field. The developer agreed to these changes
provided that the City pay for the increased costs for the expanded dog park and grading (estimated
at $110,549). The developer also agreed, upon completion of Phase 3, to pay to the City any
savings achieved from the elimination of the tennis courts (estimated at $258,718).
The net savings (about $148,169) will go towards the partial funding of a future sports field amenity
to be constructed by the City in the Phase 3 area.
The proposed changes are memorialized in the attached Second Amendment to Amended and
Restated Park Implementation Agreement (“Second Amendment”). Exhibit A-1 changes the
timeframe for completion of final park improvements to on or before January 31, 2021.Exhibit C-1 to
the Second Amendment shows the redesign of the park with the elimination of the tennis courts and
expansion of the dog park.
Fiscal Impact
The Second Amendment will result in approximately $148,000 being available for future park
amenities at Summerly Park.
Prepared by: Barbara Leibold, City Attorney
Approved by: Grant Yates, City Manager
Attachments: 1. Second Amendment to Amended and Restated Park Implementation Agreement
2. First Amendment to Amended and Restated Park Implementation Agreement
3. Amended and Restated Park Implementation Agreement
@BCL@D80E6596
SECOND AMENDMENT TO
AMENDED AND RESTATED
PARK
IMPLEMENTATION AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED PARK
IMPLEMENTATION AGREEMENT (“Second Amendment”), dated for reference purposes as of
January 1, 2019 is entered into by and between the CITY OF LAKE ELSINORE,a California
municipal corporation (“City”), on the one hand, and MCMILLIN SUMMERLY, LLC, a Delaware
limited liability company (“Summerly”) and successor in interest to Lang-CP Lake Elsinore, LLC
(“Laing”), and VAN DAELE DEVELOPMENT CORPORATION, a California corporation and
General Contractor licensed under California law (“Van Daele”) on the other hand, (hereinafter jointly
referred to as “Developer”). City and Developer are referred to collectively as the “Parties.”
RECITALS
A.City, Summerly and McMillin Real Estate Services, L.P. have previously entered into
that certain Amended and Restated Park Implementation Agreement dated April 10, 2015 (the
“Agreement”), which Agreement was amended by that certain First Amendment to Amended and
Restated Park Implementation Agreement dated June 4, 2018 between City, on the one hand, and
Summerly and Van Daele (as substitute contractor for McMillin Real Estate Services, L.P.) on the other
hand. The Agreement as amended by the First Amendment shall hereinafter be referred to as the “First
Amended Agreement.” The First Amended Agreement as amended by this Second Amendment shall
hereinafter be referred to as the “Second Amended Agreement.” Unless otherwise defined herein,
capitalized terms as used in this Second Amendment shall have the same meaning as the First Amended
Agreement.
B.The Parties desire to enter into this Second Amendment in order to modify the Design for
the construction of the Phase 3 Park Improvements, identify the obligations of the Parties with respect to
such modification, establish rights and responsibilities for modification costs and savings, and make
necessary changes in the Schedule of Performance.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto agree as follows:
1.Exhibit “A” to the First Amended Agreement, “Multi-Use Park Schedule of Performance
and Phasing,” is deleted in its entirety and replaced with Exhibit “A-1” attached hereto
and incorporated herein by reference.
2.That portion of Exhibit “C” to the First Amended Agreement comprising the Phase 3
Design is hereby modified by the Phase 3 Design as shown on Exhibit “C-1” attached
hereto and incorporated herein by reference.
2
3.Exhibit “E”, the Estimate of Modification Costs and Modification Savings (as those
terms are hereinafter defined), attached hereto and incorporated herein by reference, is
hereby added to the First Amended Agreement.
4.The following paragraphs are added to Section 2.3 of the First Amended Agreement:
Notwithstanding anything to the contrary in the First Amended Agreement, City
shall reimburse Summerly for all Modification Costs (as such term is defined
below) as set forth in this Section 2.3.
For purposes of this Agreement, the term “Modification Costs” means the actual
incremental increase in costs incurred by Summerly in connection with the
modification of the Design of the Phase 3 Park Improvements, including, without
limitation, negotiating and documenting the Second Amended Agreement,
preparing and processing the revised Park Improvement Plans, obtaining City’s
and EVMWD’s approval, and constructing the modified park amenities, primarily
being the elimination of the tennis courts and the modification of the dog park
component. The Modification Costs are estimated at approximately $110,549, as
reflected in Exhibit “E”. The Modification Costs estimate is subject to adjustment
to reflect costs actually incurred, provided however in no event will the
Modification Costs exceed the Modification Savings.
Payment Requests for reimbursement of Modification Costs may be submitted to
the City Manager on a monthly basis following the Date of Agreement. Upon
receipt of a Payment Request (and accompanying reasonable documentation), the
City Manager shall conduct a review in order to confirm that such request is
complete, and if complete, approve payment to Summerly. The City Manager
shall promptly notify Summerly of the specific nature of any deficiencies if the
request is determined to be incomplete in any respect.
For purposes of this Agreement, the term “Modification Savings” means the
incremental decrease in costs incurred by Summerly in connection with not
constructing certain park amenities, primarily being the deletion of the tennis
courts as a park component. The Parties have agreed to rely on Summerly’s
budget for Phase 3 and have therefor determined that the Modification Savings is
$258,718, as reflected on Exhibit “E”.
5.The following paragraph is added to Section 2.5 of the First Amended Agreement:
With respect to delivery of the notice of completion for Phase 3 Park
Improvements, within 30 days following City’s confirmation that the Park
Improvements are complete and accepted, Summerly shall pay City an amount
equal to the Modification Savings.
6.The following paragraph is added to Section 2.7 of the First Amended Agreement:
3
Notwithstanding any provision herein to the contrary, the City shall not be
obligated to accept the Phase 3 Park Improvements until the payment for the
Modification Savings is received by the City.
7.Except as amended by this Second Amendment the terms, conditions and provisions of
the First Amended Agreement shall remain in full force and effect.
8.This Second Amendment shall be effective on the date of execution by the last Party to so
execute this Second Amendment (“Effective Date”).
[SIGNATURES APPEAR ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties have executed this SECOND AMENDMENT TO
AMENDED AND RESTATED PARK IMPLEMENTATION AGREEMENT as of the respective
date set forth below to be effective as of the Effective Date.
Dated: , 2019
“CITY”
CITY OF LAKE ELSINORE,
a California municipal corporation
By:
Grant Yates, City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
Dated: , 2019
“SUMMERLY”
McMILLIN SUMMERLY, LLC,
a Delaware limited liability company
By: PV DEVELOPMENT MANAGEMENT LLC,
a Delaware limited liability company, as
property manager
By: Pacific Ventures Management LLC, a
Delaware limited liability company, its
Manager
By:
Name:
Title:
“VAN DAELE”
VAN DAELE DEVELOPMENT CORPORATION,
a California corporation
By:
Name:
Title:
Exhibit “A-1” – Page 1
EXHIBIT “A-1”
MULTI-USE PARK
SCHEDULE OF PERFORMANCE AND PHASING
1.Design. Developer shall have
submitted final design plans
addressing access issues for the
design of the Multi-Use Park for
consideration by the City.
Completed.
2.City approval or disapproval of
Definitive Design. City shall approve
or disapprove of the revised concept
plan. In the event of disapproval,
City shall provide a reasonable
explanation of the grounds for
disapproval.
Completed.
3.Submission of Park Improvement
Plans pursuant to section 2.2 of the
Agreement for Phase 1 and 2.
Developer shall submit Park
Improvement Plans for Phase 1 and
Phase 2 to the City.
Completed.
3.1 Submission of Park Improvement
Plans pursuant to section 2.2 of the
Agreement, as amended, for Phase 3.
Developer shall submit Park
Improvement Plans for Phase 3 to the
City.
Within 45 days of approval of the
Second Amendment by the City.
Exhibit “A-1” – Page 2
4.City approval or disapproval of Park
Improvement Plans. City shall
process the Park Improvement Plans
submitted by Developer consistent
with the provision of section 2.2 of
the Agreement, as amended, and shall
approve or disapprove of the Park
Improvement Plans. In the event of
disapproval, City shall provide a
reasonable explanation of the grounds
for disapproval.
Completed. Developer to submit
modified Park Improvement Plans for
Phase 3 Park Improvements per Second
Amendment (See 4.1 below)
4.1 City approval or disapproval Park
Improvement Plans for Phase 3. City
shall process the modified Phase 3
Park Improvement Plans submitted
by Developer consistent with the
provision of section 2.2 of the
Agreement, as amended, and shall
approve or disapprove of the
modified Park Improvement Plans for
Phase 3. In the event of disapproval,
City shall provide a reasonable
explanation of the grounds for
disapproval.
Within 30 days of submission by
Developer.
5.Resubmission of modified Park
Improvement Plans for Phase 3. In
the event of disapproval by the City,
Developer shall resubmit modified
Park Improvement Plans for Phase 3
Within 30 days of disapproval by City.
Exhibit “A-1” – Page 3
5.1 City shall approve or disapprove the
re-submitted Park Improvements
Plans pursuant to 5 above. In the
event of disapproval, City shall
provide a reasonable explanation of
the grounds for disapproval and
Developer shall thereafter resubmit
revised plans as provided in 5 above
until approval is given pursuant to
section 2.2 of the Agreement.
Within 30 days of re-submission by
Developer.
6.Completion of Phase 1 Park
Improvements. (Phase 1 Park
Improvements comprise 8 ± acres of
park along with access as generally
shown on Exhibit “C”.) Developer
shall have completed Phase 1 of the
Park Improvements.
Completed.
7.Completion of Phase 2 Park
Improvements. (Phase 2 Park
Improvements comprise 4± acres of
park as generally shown on Exhibit
“C”.) Developer shall have
completed Phase 2 of the Park
Improvements.
Completed.
8.Completion of modified Phase 3 Park
Improvements. (Modified Phase 3
Park Improvements comprise 12 ±
acres of park as generally shown on
Exhibit “C-1”.) Developer shall have
completed the third Phase of the Park
Improvement.
On or before January 31, 2021 (subject
to Permitted Delays).
Exhibit “C-1” –Page 1
EXHIBIT “C-1”
DESIGN
Exhibit “E” – Page 1
EXHIBIT “E”
ESTIMATE OF MODIFICATION COSTS
AND
MODIFICATION SAVINGS
VENDOR SCOPE INCREASE DECREASE
PARK WEST NETS $(1,814)$(1,814)
BENCH $(2,204)$(2,204)
DG $23,959 $23,959
TURF $(8,000)$(8,000)
SHRUBS $6,000 $6,000
IRRIGATION $(15,500)$(15,500)
DRAINAGE $(4,000)$(4,000)
Z BEST 4" CONCRETE $(10,389)$(10,389)
6" CONCRETE $(767)$(767)
TENNIS COURT $(137,750)$(137,750)
PLEXIPAVE $(18,060)$(18,060)
FENCE CORP TENNIS COURT $(60,234)$(60,234)
ACE LIGHTING 0
DMC GRADING $53,790 $53,790
HOWARD &
ASSOCIATES LANDSCAPE $7,700 $7,700
O'DAY
CONSULTANTS CIVIL $8,300 $8,300
KRUSE AND
ASSOCIATES ELECTRICAL $800 $800
FSG ATTORNEY $10,000 $10,000
TOTAL ESTIMATED
COST/SAVINGS $(148,169)$110,549 $(258,718)
$8d402af7f1a2$1F86652B827049CE9F800C83AF7153CE.docx
1
FIRST AMENDMENT TO
AMENDED AND RESTATED
PARK
IMPLEMENTATION AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED PARK
IMPLEMENTATION AGREEMENT (“First Amendment”), dated for reference purposes as of
June 4, 2018 is entered into by and between the City of Lake Elsinore, a California municipal
corporation (“City”), on the one hand, and MCMILLIN SUMMERLY, LLC, a Delaware limited
liability company (“Summerly”) and successor in interest to Lang-CP Lake Elsinore, LLC (“Laing”),
and VAN DAELE DEVELOPMENT CORPORATION, a California corporation and General
Contractor licensed under California law (“Substitute Contractor”) on the other hand, (hereinafter jointly
referred to as “Developer”). City and Developer are referred to collectively as the “Parties.”
RECITALS
A. City and Developer entered into that certain Amended and Restated Park Implementation
Agreement dated April 10, 2015 (the “Agreement”). Unless otherwise defined herein, capitalized terms
as used in this First Amendment shall have the same meaning as the Agreement. The Agreement as
amended by this First Amendment shall hereinafter be referred to as the “Amended Agreement.”
B. Pursuant to that certain Contractor Substitution Agreement dated June 20, 2016, Van
Daele Development Corporation was substituted as the Contractor under the Agreement in place of
McMillin Real Estate Services, L.P.
C. Summerly and City have received questions and requests for clarification by merchant
builders acquiring portions of the Summerly Project from Summerly relating to the interpretation of the
Agreement.
D. The Parties desire to enter into this First Amendment in order to clarify and carry out the
provisions of the Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto agree as follows:
1. The following subparagraph is added to Section 1.6 of the Amended Agreement:
“d. Termination of In Lieu Credits; Issuance of Building Permits. Notwithstanding
the foregoing, and except for Permitted Delays under Section 4.8 of the Agreement,
in the event Developer fails to complete the Phase III Park Improvements in
accordance with the Schedule of Performance and Phasing, but in any event not later
than March 1, 2020, un-utilized Conditional In Lieu Credits for Phase III Park
Improvements shall be suspended and City may withhold issuance of building
DocuSign Envelope ID: CE058C9A-30D4-42DB-A856-00C5DE67BDFD
$8d402af7f1a2$1F86652B827049CE9F800C83AF7153CE.docx
2
permits in the Project until such time as (i) the Phase III Park Improvements are
completed, or (ii) Developer obtains performance and payment bonds in favor of the
City in an amount equal to the estimated cost of the Phase III Park Improvements yet
to be completed or such other assurances, including alternative form of security as
may be approved by City it its reasonable discretion. All bonds required or permitted
under this Amended Agreement shall be in a form satisfactory to City, issued by a
corporate surety licensed to transact surety business in the state of California.”
2. The following subsection is added to Section 1 of the Agreement:
“Section 1.8. Permitting and Occupancy
Building permits issued on the basis of Conditional In-Lieu Credits may not be denied the
City’s authorization (building permit sign-off) allowing for occupancy on the basis of a
Developer default under this Amended Agreement, including but not limited to a failure
to complete construction of the Multi-Use Park Improvements within the time set forth in
the Schedule of Performance and Phasing, or an Event of Default.”
3. Section 3.1 of the Agreement is deleted in its entirety and replaced with the following:
“Section 3.1. Defaults--General
a. Default. Failure or delay by either party to perform, comply with or
observe any of the conditions, provisions, terms, covenants or representations of this
Amended Agreement constitutes a “default” under this Amended Agreement.
b. Notice of Default; Event of Default. An injured party shall give written
notice of a default to the party in default, specifying in reasonable detail the default
complained of by the injured party. The failure by the defaulting party to cure the default
described in the written notice, in the manner specified below, shall constitute an “Event
of Default.” Failure or delay in giving notice of default shall not constitute a waiver of
any default, nor shall it change the date of default.
c. Opportunity to Cure. A defaulting party may cure a default in any of the
following manners:
(i) by immediately commencing to cure, correct or remedy such
default upon receiving notice thereof, and completing such cure, correction or
remedy described in the notice within 30 days of receipt thereof; or
(ii) in the case of a default not susceptible to cure within 30 days of
receipt of the notice, by delivering a detailed written statement of the steps that
the defaulting party intends to take to cure the noticed default (a “Cure Plan”) to
the injured party, within 25 days of receipt of the notice, acceptable to the injured
party in its reasonable business judgment. After delivery of the Cure Plan, the
injured party shall thereafter have 5 days to accept, reject, or invite further
discussions regarding the Cure Plan. The injured party’s failure to respond within
5 days shall constitute acceptance of the Cure Plan. Each day spent pursuing
“further discussions” of the Cure Plan shall not count against the cure period. The
Cure Plan shall require the default to be cured in a reasonable time given the
DocuSign Envelope ID: CE058C9A-30D4-42DB-A856-00C5DE67BDFD
$8d402af7f1a2$1F86652B827049CE9F800C83AF7153CE.docx
3
nature of the default, but in no event longer than ninety (90) days. After
acceptance of the Cure Plan, the defaulting Party shall promptly commence to
cure, correct, or remedy the default in accordance with the Cure Plan and
thereafter diligently prosecute such cure, correction, or remedy to completion.
Upon completion of the Cure Plan, the default specified in the written notice is
deemed cured; or
(iii) in the case of a Developer default for failing to complete the Phase
III Park Improvements in accordance with the Schedule of Performance and
Phasing, but in any event not later than March 1, 2020 (subject to Permitted
Delays), by obtaining performance and payment bonds in favor of the City in an
amount equal to the estimated cost of the Phase III Park Improvements yet to be
completed or such other assurances, including alternative form of security as may
be approved by City it its reasonable discretion. All bonds required or permitted
under this Amended Agreement shall be in a form satisfactory to City, issued by a
corporate surety licensed to transact surety business in the state of California.
c. Pre-requisites to Legal Action. Except as required to protect against
further damages, the injured party may not institute legal proceedings against the party in
default until an Event of Default has occurred.”
4. Except as amended by this First Amendment the terms, conditions and provisions of the
Agreement shall remain in full force and effect.
5. This First Amendment shall be effective on the date of execution by the last Party to so
execute this First Amendment (“Effective Date”).
SIGNATURES APPEAR ON NEXT PAGE
DocuSign Envelope ID: CE058C9A-30D4-42DB-A856-00C5DE67BDFD
$8d402af7f1a2$1F86652B827049CE9F800C83AF7153CE.docx
4
IN WITNESS WHEREOF, the parties have executed this FIRST AMENDMENT TO
AMENDED AND RESTATED PARK IMPLEMENTATION AGREEMENT as of the respective
date set forth below to be effective as of the Effective Date.
Dated: , 2018
“CITY”
CITY OF LAKE ELSINORE,
a California municipal corporation
By:
Grant Yates, City Manager
ATTEST:
By:
Susan M. Domen, MMC, City Clerk
APPROVED AS TO FORM:
By:
Barbara Zeid Leibold, City Attorney
Dated: , 2018
“SUMMERLY”
MCMILLIN SUMMERLY, LLC, a Delaware limited
liability company
By: PV DEVELOPMENT MANAGEMENT LLC,
a Delaware limited liability company, as
property manager
By: Pacific Ventures Management LLC, a
Delaware limited liability company, its
Manager
By:
Name:
Title:
“SUBSTITUTE CONTRACTOR”
VAN DAELE DEVELOPMENT CORPORATION,
a California corporation
By:
Name:
Title:
DocuSign Envelope ID: CE058C9A-30D4-42DB-A856-00C5DE67BDFD
VP
Brian Milich
6/5/2018 | 11:16 AM PDT6/5/2018 | 11:16 AM PDT
Michael C. Van Daele
COO