HomeMy WebLinkAboutPacific Clay Products Development Agreement Alberhill Villages 02-28-2017628
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attention: City Clerk
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O7|2O|ZO[B 08:19 Al,t Fee: g 0.00PaEe1ofSO
Space above for Recorder's use)
Exempt from Recording Fees Per Govt Code 927383.)
DEVELOPMENT AGREEMENT BY AIID BETWEEN
THE CITY OF LAKE ELSINORE ANI)
PACIFIC CLAY PRODUCTS, INC.
REGARDING THE DEVELOPMENT KNOWN AS
ALBERIIILL VILLAGES
February 28,2017
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Table of Contents
Page
1 GENERAL PROVISIONS ..................3
1.1 The Project ..................3
1.2 The Property................. ..................3
1.3 Definitions. .................'3
1.4 Term of Agreement. ...........'...'..'....6
1.5 Tentative Map Extensions............ ......'..............6
1.6 Assignment and Assumption............. .........'.'....6
1.7 Covenants Running With the Land. ......... ...'.....7
1.8 Successors in lnterest. .......--...........7
1.9 Mortgages.. '.'......'...i.'.'. .'...............'7
1.10 Estoppel Certificate. ............"""""'7
2 DEVELOPMENT OF TrrE PROPERTY................ ................8
2.1 Vested Right.......... """"""""""""'8
2.2 Agreement Does Not Authorize Development """"""""""'8
2.3 Phasing. """""""""""'9
2.4 Permitted Uses and Development """""""""""9
2.5 Moratorium and Referendum...'........ """"""""9
3 PT]BLIC FACILITIES AI\D IMPROVEMENTS..... ........"..13
3.1 Acquisition of Necessary Property lnterests. """"""""""'13
3.2 Financing Mechanisms for Public Facilities. """"""""""'14
3.3 Participation in No. CFD 2015-l and CFD No' 2015-2' """""""""""'15
4 IMPLEMENTATION OF PROJECT APPROVALS AND DEVELOPMENT '""'15
4.1 Implementation.............. """""""'15
4.2 Outside Consultants """""""""""16
4.3 Other Governmental Agencies. """""""""""'16
4.4 Implementation of Conditions of Approval' """"' """"""'15
5 PERIODIC REVIEW.............. """""16
6 DEFAI.'LT AND REMEDIES FOR DEFAI.TLT ..""""""""'17
6.1 Default....... """"""""L7
6.2 Remedies' """""""""L7
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6.3 Specific Performance ....................17
6.4 Cumulative Remedies... ................18
6.5 Litigation Expenses. .....................18
6.6 Venue. .......................18
AMENDMENT........... ........................18
7 .l Amendment by Agreement. .............. ..............18
TERMTNATION .............18
8.1 Termination Upon Voter Approval of Land Use Initiative ...................18
8.2 Termination Upon Completion of Development.. ..............18
8.3 Land Use Entitlements Following Termination .................19
8.4 Fees Following Termination. ............ ..............19
GENERAL PROVISIONS............. ......................19
9.1 Notices....... ............'.'.19
9.2 Third Party Claims. '..................'.'20
9.3 Further Actions....... .....'..'.............20
9.4 No Joint Venture or Partnership or Third Party Beneficiary..........' """2O
9.5 Recitals. ................'....21
9.6 Exhibits...... """"""""2L
9.7 Applicable Law........... """"""""'2L
9.8 Severability """"""""2L
9.g lnterpretation................. """""""'2L
9.10 Entire Agteement. """"""""""""21
1l
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DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF LAKE ELSINORE AI\D
PACIFIC CLAY PRODUCTS, INC.
REGARDING THE DEVELOPMENT KNOWN AS
ALBERIIILL VILLAGES
This Development Agreement ("Agreement") is made and entered into as of February 28,
2017, by and between the City of Lake Elsinore, a California general law city ("Cit ") and
Pacific Clay Products, Inc., a Delaware corporation ("Ownel") pursuant to the authority of
Article2.5, Chapter4, Division 1, Title 7 ($65864, et seq.) of the Government Coderelatingto
Development Agreonents. City and Owner are hereinafter sometimes referred to individually as
a"Party" and collectively as "Parties."
RECITALS
A. In order to strengthen the public land use planning process, to encourage private
participation in the process, to reduce the economic risk of Development and to reduce the waste
of resources, the Legislature adopted the Development Agreanent Statutes codified at $65864 et
seq. of the Califomia Govemment Code (the "Development Aqreement Statutes").
B. This Development Agreement ("Asreement") relates to the Development known
as Alberhill Villages, a mixed-use residential Development which includes up to 8,024
residential units, 3,810,300 square feet of commercial, office and institutional uses,
approximately 194 acres of natural or enhanced open space with multi-use trails, a 41.5-acre
Recreational Lake and Lakeside Park, as well as a 45.9-acre City Regional Sports Park, and a
14.3-acre Public Community Park and other uses as more particularly set forth in the Amended
and Restated AVSP, as hereinafter defined (the "Project").
C. Owner owns in fee approximately 1,375 acres of undeveloped real property
located in the City of Lake Elsinore ("Property''), more particularly described in Exhibit A
attached hereto, and desires to locate the Project on the Property.
D. The City has adopted procedures and requirements for the consideration of
Development Agreements which are sst forth in Chapter 19.12 of the Lake Elsinore Municipal
Code (',.City Code"). The City and Owner have taken all actions and have fulfilled all
requireminis mandated by Chapter 19.12 of the City Code and the Development Agreement
Statutes.
E. On June 14,2016, after public hearings and adequate environmental analysis, the
City Council granted the following approvals:
i) Resolution No. 2Ot6-076 certiffing the Final Environmental Impact
Report (SCH No. 2012061046) for the Alberhill Villages Specific Plan No. 2010-02 (the "Final
EIR"), General Plan Amendment No. 2012-01 and Zone Change No. 2012-02, Adopting
finding. Pursuant to the California Environmental Quality Act, Adopting a Statement of
Overriding Considerations, and Adopting a Mitigation Monitoring and Reporting Program.
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ii) Resolution No. 2016-77 approving General Plan Amendment No. 2012-01
which amended the Lake Elsinore General Plan land use designation for the Property to
Alberhill Villages Specific Plan."
iii) Ordinance No. 2016-1361, effective July 28,2016, adopting the Alberhill
Villages Specific Plan No. 2012 and Zone Change 2012-02 which amended the zoning for the
Property to "Alberhill Villages Specific Plan."
F. Following the adoption of the June 14, 2016 approvals identified in Recital E,
Owner and City engaged in discussions and thereafter mutually proposed an Amended and
Restated AVSP in an effort to eliminate certain ambiguities and provide clarification with
respect to the implernentation of the AVSP, refine the AVSP land use plan, and identify a
financing mechanism for the Regional Sports Park. In order to provide for, implernent, and
govern the relationship between the City and Owner with respect to the long-term Development
of the Project, the Parties now desire to enter into this Development Agreement.
G. On February 7,2017, the City of Lake Elsinore Planning Commission held a duly
noticed public hearing to consider an Addendum as defined in Section 1.3.1, the Amended and
Restated AVSP, and this Agreement and recommended City Council approval.
H. On February 14, 2017, the City Council held a duly noticed public hearing to
consider the Addendum, the Amended and Restated AVSP, and this Agreernent and granted the
following approvals:
i) Resolution No. 2017-028 approving the Addendum.
ii) Ordinance No. 2017-1369, effective March 30, 2017, approving the
Amended and Restated AVSP.
iii) Ordinance No. 2017-1370, effective March 30, 2017, approving this
Development Agreernent and authorizing the execution, delivery and recordation thereof
Adoptins Ordinance").
I. On February 28,2017 the City Council conducted a second reading and adopted
the Ordinances referenced in Recital H approving the Amended and Restated AVSP and this
Agreement.
J. Having duly considered this Agreement and having held all required noticed
public hearings, City finds and declares that this Agreernent (i) is consistent with the Lake-
Elrinor.
General Plan, the Amended and Restated AVSP and all other applicable plans, rules,
regulations and official policies of the City, (ii) is compatible with the orderly Development of
thi property and the surrounding area; (iii) is in conformity with public convenience, general
welfare'and good land use practiies, (iv) will not be detrimental to the health, safety and general
welfare of the City's residents, businesses and visitors, and (v) constitutes a lawful, present
exercise of the City's police power and authority under the Development Agreement Statutes and
Chapter 19.12 of the City Code.
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NOW, THEREFORE, City and Owner agree as follows:
1 GENERAL PROVISIONS
1.1 The Project.
The Project is the Development and use of the Property, consisting of
approximately 1,375 acres of undeveloped property in the City of Lake Elsinore, in accordance
with the Amended and Restated AVSP. The Amended and Restated AVSP permits and provides
for the Development of a mixed-use residential Development including up to 8,024 residential
units, 3,810,300 square feet of commercial, office and institutional uses, approximately 194 acres
of natural or enhanced open space with multi-use trails, a 41.5-acre Recreational Lake and
Lakeside Park, as well as a 45.9-acre City Regional Sports Park, and a 14.3-acre Public
Community Park, and other uses as more particularly set forth in the Amended and Restated
AVSP, as hereinafter defined.
1.2 The Prooerty.
The Property is generally located west of Lake Street and south of the I-15
Freeway in the City of Lake Elsinore, California. The Property consists of approximately 7,375
acres of land and is more particularly described in Exhibit A which is incorporated herein and
made a part of this Agreement.
1.3 Definitions.
The following terms when used in this Agreement shall have the following
meanings:
1.3.1 "Addendum" means the Addendum to the Final EIR [SCH No.
20120610461 for the Amended and Restated AVSP and this Agreement.
1.3.2 "Ageem@" means this Development Agreement and any written
amendments thereto.
1.3.3 "Amended and Restated AVSP" means the Amended and Restated
Alberhill Villages Specific Plan approved by the City Council by Ordinance No. 2017-1369
introduced on February 14,2017 and adopted on February 28,2017 as referenced in Recital H
and I.
1.3.4 "Applicable Rules and Rezulations" means only those ordinances,
resolutions, rules, orders,-iegulations, and formally adopted policies of the City applicable to the
Development and occupancy of the Property, including the Planning Documents, which are in
effect on the Effective Date, subject to the exceptions set forth in Sections 1.3.4.1 through
1.3.4.10 below.
1.3.4.1 State and Federal Laws. As provided in Govemment code
65869.5, in the event that state or federal laws or regulations, enacted after the Effective Date of
this Agreement prevent or preclude compliance with one or more provisions of this Agreement,
such provisions of this Agreement shall be modified or suspended as may be necessary to
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comply with such state or federal laws or regulations. The rights of Owner under this Agreonent
shall not be otherwise affected by such modification or suspension.
1.3.4.2 Health and Safety. Nothing in this Agreanent shall prevent City
from enacting ordinances, resolutions, rules, regulations or policies necessary to protect City
residents, businesses and visitors from an adverse risk to health or safety. Such ordinances,
resolutions, rules, regulations or policies shall be applicable to the Development of the Project.
1.3.4.3 Application. Processing and Inspection Fees. Owner shall be
subject to Application, Processing and Inspection Fees that are revised during the Term of this
Agreement. Owner shall also receive the benefit of any lowering of such Application,
Processing and Inspection Fees. Owner shall pay all applicable Application, Processing and
Inspection Fees to the extent the fees are uniformly applied to all Development within the City.
1.3.4.4 Development Impact Fees. Owner shall be required to pay
Existing Development Impact Fees (as defined in this Agreernent) in connection with the
Development of the Project in accordance with the limitations set forth in Section 2.6.3.
1.3.4.5 Procedural Rezulations. Procedural regulations relating to
hearing bodies, applications, notices, findings, hearings, reports, recommendations, appeals and
any other matter of procedure.
1.3.4.6 Rezulations Governing Construction Standards. Regulations
governing construction standards and specifications including, without limitation, the City's
Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code, provided that
such construction standards and specifications are applied on a City-wide basis.
1.3.4.7 Non-Conflictins Regulations. Written regulations approved by
the City that are not in material conflict with the Applicable Rules and Regulations and do not
materially and adversely impact the Development of the Property.
1.3.4.8 Certain Conflictine Re8ulations. Written regulations approved
by the City that are in material conflict with the Applicable Rules and Regulations only if Owner
has given its written consent to the application of such regulations to Development of the
Property.
1.3.4.9 Rezulation by Other Public Asencies. The Parties acknowledge
that other public agencies, not within the control of the City, possess authority to regulate aspects
of the Development of the Project and the Property separately from the City. This Agreanent
does not limit the authority of such other public agencies.
1.3.4.10 General and Special Taxes. Owner and occupants shall pay
general or special taxes, including but not limited to, property taxes, sales taxes, transient
o""rp*"y tixes, business taxes, which may be applied to the Property or to businesses
occupying the Property; provided, however, that the tax is of general applicability Citywide or
legaliy added as aiondition of approval to future discretionary approvals, if any, relating to the
intensification of existing mining operations requested by Owner. Nothing in this Agreement
prohibits the adoption and application of a CFD special tax approved by the City in accordance
with Sections 3.2 and 3.3 of this Agreanent.
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1.3.4.11 Plannine Documents Control. Except as set forth in Sections
1.3.4.1through 1.3.4.9 above, in the event of any conflict between the Planning Documents and
the Applicable Rules and Regulations, the Planning Documents shall govern and control.
1.3.5 "Application. Processins and Inspection Fees" means the fees required by
the City that are of general applicability to the entire City and cover the actual costs of the City
to process applications and/or conduct inspections for the Project.
1.3.6 "Assumption Agreernent" means an agreement substantially conforming
to the model assumption agreement described in Exhibit B, or other agreement in a form
approved by the City Attomey, executed by a purchaser, assignee or transferee of the Property,
or a portion of the Property, expressly assuming certain obligations and inuring to certain rights
under this Agreonent.
1.3.7 66@" means the California Environmental Quality Act, Public
Resources Code Section 21000, et seq. and the implementing regulations promulgated
thereunder as the "CEQA Guidelines" (Title 14, Califomia Code of Regulations Section 15000 et
seq.) and the City's local guidelines.
1.3.8 "eiIy" means the City of Lake Elsinore.
1.3.9 "City Code" means the Lake Elsinore Municipal Code.
1.3.10 "City Council" means the duly elected legislative body governing the City
of Lake Elsinore.
1 .3. I I "Qi!y I\4lEAref" means City Manager of the City or his or her designee.
l.3.l2 "Developlqgn!" means grading, construction and/or installation of public
improvernents, infrastructure and facilities related to the Project (whether located within or
outside the Property) and the construction and/or installation of private improvanents, structures,
buildings and facilities and the installation of landscaping.
1.3.13 "Development Impact Fees" means fees imposed on new development by
the City on a citywide basis pursuant to Government Code Section 66000 et seq.
1.3.14 "Effective !41e" means the effective date of the Adopting Ordinance.
1.3.15 "Existing Development Impact Fees" means those Development Impact
Fees imposed by the City on and in connection with new Development pursuant to the
Applicable Rules and Regulations which are defined in Section 2.6.3.
1.3.16 "Final EIR" is defined in Recital E.
1.3.17 'oOwner" means Pacific Clay Products, Inc., a Delaware corporation, and
any and all of its successors in title and/or successors in interest.
1.3.l8..@',means,andshallbelimitedto,theGeneralPlan
Amendment and Zone Change referenced in Recital E, the Amended and Restated AVSP, the
Final EIR and Addendum, any subsequent approvals and CEQA documents required for the
implementation of the Project, this Agreement, and such amendments to this Agreement as may,
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Exhibit A.
Section 1 .1.
from time to time, be approved pursuant to Section 7.1. "Planning Documents" shall not include
the Alberhill Villages Initiative to be submitted to the voters of City at a Special Municipal
Election on May 2,2017 or any subsequent voter initiative.
l.3.l9 "Property''is defined in Recital C and more particularly described in
1.3.20 66Prqjeg!" is defined in Recital B and more particularly described in
1.3.21 "Term" is defined in Section 1.4 of this Agreement.
1.4 Term of Apreement.
This Agreement shall commence upon the Effective Date and shall continue in
force for a period of thirty (30) years unless extended or terminated as set forth herein, provided,
that if the Project has not been fully developed by the end of such thirty (30) year period, the
term of this Agreement shall be automatically extended for successive five (5) year periods
unless and until either City or Owner notify the other in writing prior to the end of the then-
existing term that such Party elects to terminate this Agreernent effective as of the end of the
then-existing term. Following the expiration of the term or any extension hereof, or if sooner
terminated, this Agreement shall have no force and effect, subject however, to any post-
termination obligations of the Parties.
1.5 Tentative Map Extensions.
Pursuant to Section 66452.6 of the California Government Code, any tentative
map that is approved by the City shall remain in full force and effect for a period coterminous
with the term of this Agreement.
1.6 Assisrment and Assumption.
Owner shall have the right to sell, assign, or transfer the Property or any portion
thereof, together with its rights and obligations under this Agreement to the extent the same
apply to thi lands so sold, assigned or transferred, to any person, firm or corporation at any time
during the term of this Agreement. The terms, conditions, covenants, rights and obligations set
forttr ln this Agreement and incorporated herein by exhibits shall run with the land and the
burdens and benefits created by this Agreement shall bind and inure to the successive owners of
the Property from time to time. Owner shall provide City with written notice of any assignment
or transfer of all or a portion of the Property no later than thirty (30) days after such assignment
or transfer. Express written assumption by such purchaser, assignee or transferee, to the
satisfaction of the City Attorney, of the burdens and obligations with respect to the Property or
such portion thereof sold, assigned or transferred, shall release and relieve Owner of such
burdens and obligations so assumed. Any such assumption of Owner's obligations under this
Agreernent shall be deemed to be to the satisfaction of the City Attorney if evidenced by the
exicution of an Assumption Agreernent in the form of that attached hereto as Exhibit B and
incorporated herein by this reference.
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1.7 Covenants Running With the Land.
The terms and conditions set forth in this Agreement, including the rights and
obligations of the Parties hereto, shall constitute covenants running with the land. Each and
every purchaser, assignee or transferee of an interest in the Property, or any portion thereof, shall
be obligated and bound by the terms and conditions of this Agreement, and shall be the
beneficiary thereof and a Party thereto, but only with respect to the Property, or such portion
hereof, sold, assigned or transferred to it. Any such purchaser, assignee or transferee shall
observe and fully perform all of the duties and obligations of Owner contained in this
Agreement, and shall succeed to the benefits conferred upon Owner hereunder, as such duties,
obligations and benefits pertain to the portion of the Property sold, assigned or transferred to it.
Provided, however, notwithstanding anything to the contrary above, if any such sale, assignment
or transfer relates to a completed single-family residence, multi-family building or non-
residential building which has been approved by the City for occupancy, the automatic
termination provisions of Section 8.1 hereof shall apply thereto, and the rights and obligations of
Owner and City hereunder shall not run with respect to such portion of the Property sold,
assigned or transferred and shall not be binding upon such purchaser, assignee or transferee.
1.8 Successors in Interest.
All of the provisions, agreements, rights, powers, standards, terms, covenants and
obligations contained in this Agreement shall be binding upon and shall inure to the benefit of
the Parties and their heirs, successors (by merger, consolidation, or otherwise), assigns, devisees,
administrators, representatives, and all other persons or entities acquiring the Property, or any
portion thereof, or any interest therein, whether by operation of law or in any manner
whatsoever.
1.9 Mortqages.
This Agreement shall be superior and senior to any lien placed upon the Property,
or any portion of the Property, after the date of recording this Agreement, including the lien of
any deed of tnrst or mortgage. Nonetheless, no breach of this Agreement shall defeat, render
invalid, diminish or impair the lien of any mortgage made in good faith and for value, but all of
the terms and conditions contained in this Agreernent shall be binding upon and effective against
any mortgagee who acquires an interest in the Property, or any portion of the Property. Any
such mortgagee shall be released from the obligations under this Agreernent, if any, upon
transfer of the Property, or the portion of the Property as set forth in Section 1.6 of this
Agreement.
I .10 Estoppel Certificate.
Either Party may at any time, and from time to time, deliver written notice to the
other Party requesting that the other Party certify in writing to the knowledge of the certifoing
Party that: (a)this Agreement is unmodified and in full force and effect, or, if there have been
modifications hereto, that this Agreement is in fulI force and effect as modified and stating the
date and nature of such modification; and (b) there are no current uncured defaults under this
Agreement or, if such uncured defaults exist, specifying the dates and nature of any such
defaults. The failure to deliver such a certificate to the requesting Party within thirty (30)
calendar days of the request shall constitute a binding admission by the Party failing to deliver
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the certificate that this Agreement is in full force and effect, without modification except as may
be represented by the requesting Party, and that there are no uncured defaults in the performance
of the requesting Purty, except as may be represented by the requesting Party. Any such
certificate requested by Owner may be executed by the City Manager and shall contain City's
acknowledgment that the certificate is intended to, and may be, relied upon by lenders,
mortgagees and transferees.
2 DEVELOPMENT OF THE PROPERTY
2.1 Vested Right.
The City has determined that the Project would provide significant public benefits
to the City and its residents, businesses and visitors and that entry into this Agreement will
further the goals and objectives of the City's land use planning policies by encouraglng
Development of the Property in accordance with the Applicable Rules and Regulations and
eliminating uncertainty in the planning, entitlement and Development processes.
In exchange for the Project benefits to the City and its residents, businesses and
visitors and in accordance with the Development Agreernent Statutes and Chapter 19.12 of the
City Code, Owner shall have a vested right to implement the Project in accordance with the
Applicable Rules and Regulations, subject to the approval and issuance of any subsequent land
use entitlements and permits which are required for the Development of the Project under the
Applicable Rules and Regulations. As such, the Owner, if it chooses, may proceed to Develop
the Property in accordance with the Applicable Rules and Regulations, with certainty that Owner
will have the ability to expeditiously and economically complete the Project.
2.2 Aereement Does Not Authorize Development.
The Parties agree and acknowledge that this Agreement itself does not authorize
Owner to undertake any Development of the Property and that before any Development activity
can occur (a) the Owner must have submitted all applications for all land use entitlements and
permits which are required under the Applicable Rules and Regulations, and (b) the City must
have approved such land use entitlement and permit applications pursuant to the Applicable
Rules and Regulations, including undertaking whatever environmental documentation required
pursuant to CEQA.
This Agreement does not require the City to approve any land use entitlement or
permit, but obligates the City to reasonably process all land use entitlement and permit
applications submitted by Owner during the Term of this Agreernent pursuant to the Applicable
Rules and Regulations. Consequently, the City may approve, conditionally approve or deny such
land use entitlement and permit applications on the basis of the Applicable Rules and
Regulations. Upon approval by City of any of the land use entitlements and permits, as they may
be amended from time to time, such land use entitlements and permits shall become part of the
Applicable Rules and Regulations, and the Owner shall have a "vested right," as that term is
defined under California law, in and to such land use entitlernents and permits by virtue of this
Agreement.
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2.3 Phasine.
Development of the Project is expected to occur over the course of thirty (30)
years, or more. Owner shall have the right to determine the timing and phasing of Development
of the Project during the term of this Agreement, provided that all infrastructure necessary to
serve that portion or phase of the Project being developed is in place prior to the occupancy
thereof. In light of the California Supreme Court's holding in Pardee Construction Co. v. City of
Camarillo, 37 Cal.3d 465 (1984), that the absence of reference in that developer's project
approvals to a time schedule or rate of Development resulted in a later-adopted initiative
restricting the timing of Development to prevail over the Parties' agreement, it is City's and
Owner's intent to affirmatively address this issue by expressly acknowledging and providing
that, subject to any infrastructure phasing requirements that may be required by the Planning
Documents and Applicable Rules and Regulations, Owner shall have the vested right to develop
the Property in such order and at such rate and at such times as Owner deems appropriate within
the exercise of its subjective business judgment.
2.4 Permitted Uses and Development.
The permitted uses, the density and intensity of use, and the transfer of such
density and intensity of use, the maximum height and size of proposed buildings, provisions for
reservation and dedication of land (or payment of fees in lieu of dedication) for public pu{poses,
the construction, installation and location of public improvements, and other terms and
conditions of Development applicable to the Property shall be those, and only those, set forth in
this Agreement, the Planning Documents and the Applicable Rules and Regulations.
Notwithstanding the foregoing limitation, should Owner request an amendment to the General
Plan and/or Amended and Restated AVSP, City may apply current regulations in effect at the
time the application for amendment is deemed complete to the extent that the current regulations
relate to the requested amendment.
2.5 Moratorium and Referendum.
No ordinance, resolution, rule, order, regulation or policy of the City shall be
applied, imposed or enacted by the City which in any way relates to the rate, timing or
sequencing of the Development or use of the Property, or any improvements related thereto,
including any no-growth or slow-growth moratoriums or annual Development allocations, quotas
or limitations, or which in any way conflicts with the permitted uses, density and/or intensity of
uses, maximum building height and/or size, or other Development characteristics set forth in the
Planning Documents. Pursuant to Government Code $65867.5, this Agreernent is subject to
referendum.
2.6 Fees.
2.6.1 Alberhill Park Fee. Prior to the issuance of any residential building permit
in the Project, Owner shall pay to City "Alberhill Park Fee" in an amount equal to $2.00 per
square foot of assessable space. "Assessable space" means all of the square footage within the
perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio,
detached accessory structure or similar area. The amount of square footage within the perimeter
of a residential structure shall be calculated by the City's building department in accordance with
the City's standard practice of calculating structural perimeters. The Alberhill Park Fee shall be
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deposited by City in a segregated account (the "Alberhill Park Fund") and shall be used
exclusively to fund the improvements to the 45.9 acre Regional Sports Park; provided, however,
upon final completion of such improvements, and City's payment in full of all costs of such
improvements from the Alberhill Park Fund, any remaining balance in the Alberhill Park Fund
may be expended by City for park improvements within the Alberhill District of the City's
General Plan. Owner's obligation to pay the Alberhill Park Fee shall survive termination of this
Agreernent.
2.6.1.1Phased Construction of Reeional Sports Park. Pursuant to the
Amended and Restated AVSP, Owner shall rough grade the Regional Sports Park site and
construct the adjacent roadway infrastructure, including the portions of Lake Street adjacent
thereto, in accordance with the schedule set forth in Table 3-2 of the Amended and Restated
AVSP. Onsite improvements for the Regional Sports Park shall be constructed by Owner in
phases, as sufficient Alberhill Park Fees are generated as set forth in Table 3-2 of the Amended
and Restated AVSP. Such onsite improvanents shall be designed, engineered and constructed in
accordance with a conceptual design plan prepared by Owner and approved by the City Council
and detailed park plans prepared by Owner and approved in writing by the City Manager. The
Owner shall perform all of its obligations hereunder and shall conduct all operations with respect
to the construction of the Regional Sports Park improvements in a good, workmanlike and
commercially reasonable manner, with the standard of diligence and care norrnally employed by
duly qualified persons utilizing commercially reasonable efforts in the performance of
comparable work and in accordance with generally accepted practices appropriate to the
activities undertaken. The Owner shall maintain the improvements in good and safe condition
and in proper operating condition, including such maintenance as the City Manager reasonably
determines to be necessary, until the City's acceptance thereof. Upon substantial completion of
the improvements for each phase of the Regional Sports Park, City shall inspect and approve
such improvernents subject to a punch list City shall issue iternizing any additional work which
shall be reasonably required for final completion of such improvernents. Owner shall use
commercially reasonable efforts to complete the items on the City's punch list within a
reasonable time after City's issuance thereof. Upon Owner's completion of the items on the
City's punch list, and City's verification thereof, City shall promptly cause to be recorded in the
Official Records of Riverside County a Notice of Completion and Acceptance ("NOCA") of
such improvements. Within thirty (30) days following the recordation of the NOCA, Owner shall
dedicate the improved park phase to the City by way of a duly executed grant deed delivered to
and accepted by the City. The applicable park phase shall not be opened to the public until such
park phase has been dedicated to the City as set forth herein. Upon Owner's dedication of the
park phase to City, Owner shall assign to the City all of the Owner's rights in any warranties,
guarantees, maintenance obligations or other evidence of contingent obligations of third persons
with respect to the improvements.
Notwithstanding the foregoing, in lieu of Owner's obligation to construct
any or all or any phase of the Regional Sports Park improvements, City may, in its sole
discretion, elect to construct all or any phase of Regional Sports Park improvements using
rernaining funds available in the Alberhill Park Fund.
2.6.L.2 Reimbursement Procedures. All costs incurred by Owner for the
design, engineering and construction of onsite improvements for the Regional Sports Park shall
be fully reimbursed by draws from the Alberhill Park Fund, in accordance with the procedures
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set forth in this Section 2.6.1.2 and as more particularly described in the form Reimbursement
Aereement attached hereto as Exhibit "C".
As Owner constructs portions of the onsite improvements for the Regional
Sports Park, Owner shall submit to the City Manager, a Reimbursement Request in the form
attached to the Reimbursernent Agreement (Exhibit C), including copies of contracts, invoices,
cancelled checks or other documentation requested by the City Manager, evidencing costs
actually incurred by Owner ("Reimbursement Request"). The dollar amount of the
reimbursement shall equal the actual cost incurred by the Owner in constructing the
improvements, provided, however, that the reimbursement cannot exceed the available funds in
the Alberhill Park Fund. The Owner shall supply all documentation requested by the City
Manager, in determining the actual construction cost of the improvements. Reimbursements
from the Alberhill Park Fund shall be due and payable within thirty (30) calendar days of receipt
of the Reimbursernent Request submitted by the Owner.
2.6.1.3 Satisfaction of All Park Dedication and Development
Requirernents and Fees. Owner's compliance with the park development and dedication
requirements set forth in the Amended and Restated AVSP and this Agreernent, including the
Development and dedication of the Regional Sports Park as set forth in the Amended and
Restated AVSP and in this Section 2.6.1, shall satisff all park dedication, park development,
open space and recreation requirements and associated fees for the entire Project, including
without limitation all requirements under the Quimby Act (codified at California Government
Code S 66477) and all local ordinances relating thereto, and including all dedication,
Development, improvement, in-lieu fees (including City Park Capital Improvement Fund Fees),
and all other park, open space and recreation requirements of whatever t1pe. City shall not
require Owner to dedicate or improve any land, or pay, contribute to or otherwise provide any
fee, as a condition or exaction of any subsequent approval by the City for the Development of the
Property, or otherwise, which in any way relate to parks, open space or recreation.
2.6.2 Development Aereement Fees.
2.6.2.1lnitial Development Asreement Fee. Pursuant to City Code
Section 19.l2.l7o,Owner shall pay City an Initial Development Agreement Fee in the amount of
One Hundred Thousand Dollars ($100,000) (the "Initial DAG") to offset the City's costs
associated with the negotiation and preparation of this Agreonent, the Amended and Restated
AVSP and the City's costs associated with the May 2, 2017 Special Municipal Election.
Payment of the Initial DAG shall be made in two equal installments. The first installment shall
be made prior to adoption of the Adopting Ordinance by the City Council and the second shall be
made within thirty (30) days from the Effective Date.
2.6.2.2Payment of Development Apreement Fees. Upon the City's
issuance of the initial building permit for each residential dwelling unit, and each commercial,
retail or industrial building to be constructed within the Project, Owner shall pay to City a
Development Agreement Fee in the amount specified in Section 2.6.2.3 below (each, a "DAG
Fee" and collectively, "DAG Fees").
2.6.2.3 DAG Fees Payable. DAG Fees shall be payable in the following
amounts for the various uses subject to the exceptions set forth herein below in Section 2.6.2.4:
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2.6.2.3.1 Single Family (SF) Dwelling Unit - $4,500/unit
2.6.2.3.2 Multi-Family (MF) Dwelling Unit - $3,200/unit
2.6.2.3.3 Mixed-Use (MXU) Dwelling Unit - $2,500/unit
2.6.2.3.4 CommerciaVRetaiUlndustrial Building - $1.00/sf
2.6.2.3.5 Private lnstitutional/Places of Worship (non-sanctuary)
Building - $1.00/sf
Commencing July 1,2018, the DAG Fees shall be adjusted annually as of July 1
of each year based on the percentage increase or decrease, if any, of the Engineering News
Record Construction Cost Index for the Los Angeles Metropolitan Area for the twelve month
period prior to May I of the year in which the change will be effective; provided, however, the
DAG Fees shall never be less than the rates set forth above in this Section 2.6.2.3.
2.6.2.4 DAG Fee Exemptions. Notwithstanding the provisions of Section
2.6.2.3, no DAG Fees shall be payable for the following uses:
2.6.2.4.1 Residential units in publicly subsidized projects
constructed as housing for low income households as defined pursuant to Section 50079.5 of the
Health and Safety Code;
2.6.2.4.2 New homes, constructed by nonprofit organizations,
specially adapted and designed for maximum freedom of movernent and independent living for
qualifi ed disabled veterans;
2.6.2.4.3 Government/public buildings, public schools and public
facilities:
2.6.2.4.4 Any nonprofit corporation or nonprofit organization
offering and conducting full-time day school at the elanentary, middle school or high school
level for students between the ages of five and l8 years;
2.6.2.4.5 The sanctuary building of a church or other house of
worship eligible for a property tax exemption.
2.6.2.5 Use of DAG Fees. The City shall deposit not less than One
Million Dollars ($1,000,000) of DAG Fees paid by Owner into the Alberhill Park Fund to ensure
adequate funding for all onsite improvements to the Regional Sports Park. In addition, City may
in its sole and absolute discretion deposit additional DAG Fees into the Alberhill Park Fund in
order to expedite construction of Regional Sports Park improvernents. All DAG Fees deposited
in the Alberhill Park Fund shall be repaid from future Alberhill Park Fees, if any, paid by Owner
after completion of all Regional Sports Park improvements. DAG Fees not deposited into the
Alberhill Park Fund may be used by City for any municipal purpose in accordance with
Applicable Rules and Regulations.
2.6.3 Existine Development Impact Fees. For and in exchange of Owner's
agreernent to pay the Alberhill Park Fees, the DAG Fees and develop the Regional Sports Park
with Funds deposited in the Alberhill Park Fund as provided in Sections 2.6.1 and 2.6.2, City
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agrees that other than the payment of such Alberhill Park Fees and DAG Fees, Owner shall be
required to pay only the following Existing Development Impact Fees as set forth in this Section
2.6.3:
o Storm Drain Capital Improvement Fund Fees
o TrafEc Impact Fees
o Library Capital Improvement Fund Fees
o Fire Facility Fee
City Hall & Public Works Facilities Fee
o Community Center Facilities Fee
o Marina Facilities Fee
o Animal Shelter Facility Fee
o TUMF
Upon City approval of each Phased Development Plan (PDP) in the Project in
accordance with the Amended and Restated AVSP, the amount of each of the Existing
Development Impact Fees to be paid upon issuance of building permits for Development within
the boundaries of such PDP shall be locked for a period of five (5) years commencing as of the
July I following the date of approval of the PDP and expiring on the fifth anniversary thereof.
Thereafter, Owner shall pay all Existing Development lmpact Fees at the current rate applicable
at the time of issuance of each building permit in the Project. Notwithstanding the foregoing,
TUMF fees may be paid prior to final inspection or issuance of occupancy permit and must be
paid at the then applicable rate without any rate lock in accordance with the TUMF progmm.
Notwithstanding anything to the contrary herein, Owner is exanpt from the payment of MSHCP
Fees, City Affordable Housing In Lieu Fees and City mandated affordability covenants and
restrictions recorded against new dwelling units in the Project. Owner's exemption from the
payment of Affordable Housing In Lieu Fees and affordability covenants and restrictions shall
survive the termination of this Agreement.
2.6.3.1No New Development Impact Fees. Owner shall not have an
obligation to pay, contribute to, or otherwise provide as a condition or exaction of any
subsequent approval by the City for the Development of the Property pursuant to the Amended
and Restated AVSP, any new Development Impact Fees adopted by the City after the Effective
Date of this Agreernent.
3 PUBLIC FACILITIES AND IMPROVEMENTS
3.1 Acquisition of Necessary Property Interests.
If Owner is required by the Planning Documents to construct offsite
improvernents on lands not owned by either Owner or the City, Owner agrees to make a good
faith effort to acquire the necessary property interest for the construction of these offsite
improvements. Owner shall commence its good faith efforts to acquire the necessary property
interests immediately upon the effective date of this Agreernent or within thirty (30) days of
being informed by the City that such offsite improvements are required in order to implement the
Planning Documents. If Owner is unable to acquire the necessary property interests within one
year before the offsite improvement is required to be constructed based on Owner's then existing
Development schedule, the City shall acquire the necessary property interests by such means as
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are available to it, including eminent domain. Owner shall pay all actual costs incurred by the
City in acquiring the necessary offsite property interests, including but not limited to, inverse
condemnation, attorneys' fees, land cost, severance, relocation, loss of future Development rights
and any other costs related to the City acquiring the offsite real property interests required to
construct the offsite improvements. The provisions of this Section 3.1 are in addition to, and not
in lieu of, the Parties' respective rights and obligations under Califomia Government Code
Section 66462.5.
3.2 Financing Mechanisms for Public Facilities.
3.2.1 Public Facilities CFD. Upon Owner's submission of a finance plan City,
in cooperation with and at the request of Owner, shall initiate and use its commercially
reasonable 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 in
conjunction with their development of the Project on and with respect to the Property, in
accordance with the provisions of the Mello-Roos Community Facilities Act of 1982
Government Code $53311 et seq.), as amended (*Mello Roos Act'). It is understood that
Owner shall not be entitled to receive the net proceeds of any CFD bonds to finance onsite
improvements constructed by Owner to the Regional Sports Park and reimbursed to Owner from
the Alberhill Park Fund. It is also understood that multiple CFDs may be established over
portions of the Property in order to facilitate the funding of public improvements and facilities to
correspond with the phased development of the Project. The parameters of the CFD(s) shall be
as follows or as otherwise required to meet minimum requirements of California law, as the same
may be amended from time to time: (i) a minimum loan-to-value ratio of I to 3; (ii) a total
property taxlassessment payment not to exceed two percent (2%) of assessed value per year per
parcel; (iii) a debt service coverage ratio not to exceed I to 1 (unless adequate credit
enhancement is provided to the reasonable satisfaction of the City); and (iv) an annual escalator
on the CFD tax and debt service of two percent (2%) per year (and subject to appropriate
increases in the special tax upon defaults by other properties within the CFD).
3.2.2 Continsent Special Tax. As part of any public facilities CFD established
pursuant to Section 3.2.1, a contingent special tax shall be included that will be levied on each
assessor's parcel of taxable property in an amount required in any fiscal year to pay the cost of
the City's maintenance and operation of the improvements, including administrative expenses,
and to fund an operating reserve following default by the applicable Homeowner's Association
HOA) of its obligation to maintain such improvements which may include maintenance and
lighting of parks, parkways, streets, roads and open space, which maintenance and lighting
services may include, without limitation, furnishing of electrical power to street lights; repair and
replacement of damaged or inoperative light bulbs, fixtures and standards. Default by the HOA
will be deerned to have occurred in each of the following circumstances: (i) the HOA files for
bankruptcy; (ii) the HOA is dissolved; (iii) the HOA ceases to levy annual assessments for the
maintenance of the improvements described above; or (iv) the HOA fails to maintain such
improvements at the same level as the City maintains similar improvements throughout the city
and within ninety (90) days after written notice from the City, or such longer period permitted by
the City Manager, fails to remedy such maintenance deficiency to the reasonable satisfaction of
the City Council.
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3.3 Participation in No. CFD 2015-l and CFD No. 2015-2.
3.3.1 Public Safety. Fire. Paramedic and Police Services.
Prior to approval of a Final Map, Parcel Map, Residential Design Review,
or Conditional Use Permit (as applicable), the project developer shall annex into Community
Facilities District No.2015-1 (Safety) or such other Community Facilities District for Law
Enforcement, Fire and Paramedic Services established at the time of such approval to offset the
annual negative fiscal impacts of the project on public safety operations and maintenance issues
in the City. Alternatively, the project developer may form a new Community Facilities District
for Law Enforcement, Fire and Paramedic Services or propose alternative financing mechanisms
to fund the annual negative fiscal impacts of the project with respect to Public Safety services.
Community Facilities District No. 2015-1 or other CFD for law enforcement, fire and/or
paramedic services will be subject to a biennial review by the City and adjustments to special
taxes collected thereunder will be made in accordance with the requirements of the Mello-Roos
Community Facilities Act of 1982, as amended from time to time.
3.3.2 Maintenance Services.
Prior to approval of a Final Map, Parcel Map, Design Review, or
Conditional Use Permit or building permit (as applicable), the project developer shall annex into
Community Facilities District No. 2015-2 (Maintenance Services) or such other Community
Facilities District for Maintenance Services established at the time of such approval to fund the
on-going operation and maintenance of the (i) public right-of-way, including street sweeping, (ii)
the public right-of-way landscaped areas and parks to be maintained by the City; and (iii) for
street lights in the public right-of-way for which the City will pay for electricity and a
maintenance fee to Southem California Edison, including streets, parkways, open space and
public storm drains constructed within the Development and federal NPDES requirements to
offset the annual negative fiscal impacts of the project. Altematively, the project developer may
form a new Community Facilities District for Maintenance Seruices or propose alternative
financing mechanisms to fund the annual negative fiscal impacts of the project with respect to
Maintenance Services.
4 IMPLEMENTATION OF PROJECT APPROVALS AND DEVELOPMENT
4.1 Implementation.
4.1.1 City Processine. City shall permit the uses on the Property that are
permitted by the Planning Documents. City agrees that all applications for City approval shall be
reviewed and acted upon within a reasonable period of time.
4.1.2 Duty to Grant and Implernent. City's obligation to grant and implement
City approval of the uses on the Property permitted by the Planning Documents shall not infringe
upon the City's right to require conformity with the Planning Documents and the Applicable
Rules and Regulations. If City rejects an application for a City approval, it shall provide, in good
faith, a specific list of reasons why the application was rejected along with a description of
specific and reasonable measures to correct each basis for rejection. If Owner submits its
application incorporating all the measures to correct, the City shall deem the application is
complete.
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4.1.3 CEOA Guidelines $15182. City agrees to comply with all CEQA
requirements, including CEQA Guidelines, $15182, which provides that where a public agency
has prepared an EIR on a Specific Plan, no EIR or negative declaration need be prepared for a
residential project undertaken pursuant to and in conformity to that Specific Plan if the Project
meets the requirernents of CEQA Guidelines $15182. Residential projects covered by CEQA
Guidelines $15182 include, but are not limited to land subdivisions, zoning changes and
residential planned unit Developments.
4.2 Outside Consultants.
At Owner's request, the City may at any time during the term of this Agreement,
hire an outside consultant(s) to provide assistance on any issue associated with the Development
of the Project, including but not limited to, processing subsequent Project approvals and
conducting building inspections for the Project. Owner agrees to pay reasonable costs associated
with the outside consultant(s) in addition to any application, processing and inspection fees
otherwise due the City. The outside consultant(s) shall be under the exclusive direction of the
City.
4.3 Other Governmental Agencies.
Owner and the City shall reasonably cooperate with each other in obtaining such
additional permits and approvals as may be required from other govemmental or quasi-
govemmental agencies having jurisdiction over the Project or the Property as may be required
for the Development of the Project. Reasonable cooperation includes, but is not limited to,
responding to reasonable requests for information in a timely manner, attendance at meetings and
providing City determinations that are relevant to obtaining such additional permits or approvals.
Owner will be responsible for all costs of obtaining such additional permits or approvals.
Owner shall be entitled to request that the City support Owner in obtaining such additional
permits and approvals for the Project. Owner shall have the primary responsibility for securing
such permits and approvals, including all communications with the California Department of
Transportation regarding the proposed access to the Project.
4.4 Implementation of Conditions of Approval.
lf Owner believes it is unable to implement any condition required by the
Planning Documents, Owner can request the City to modify or delete the condition or substitute
another condition if substantial evidence exists that the condition is no longer feasible. Owner
bears the burden of providing the substantial evidence to the City that the condition is no longer
feasible and the City shall hold a public hearing prior to modifting, deleting or substituting the
condition, if such a hearing is required by law.
5 PERIODIC REVIEW
City shall review this Agreanent at least once every twelve (12) months from the
Effective Date. During each periodic review, Owner is required to demonstrate good faith
compliance with the terms of this Agreernent, and shall furnish such reasonable evidence of good
faith compliance as the City, in the exercise of its reasonable discretion, may require. Such
periodic review shall be conducted administratively by the City Manager and any appropriate
department heads designated by the City Manager to perform such periodic review. The City
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Manager shall report the results of such periodic review to the City Council within thirty (30)
days after the conclusion thereof. No public hearing shall be held by the City Manager, Planning
Commission or City Council with regard to such periodic review; provided, however, that the
City Council and/or the Owner shall have the right to appeal the City Manager's findings to the
City Council, in which case Owner shall have the right to request a public hearing on the matter.
City shall notift Owner in writing of the date for review at least thirty (30) days prior thereto.
Any failure of either Party to comply with the provisions of this Section 5, will not constitute or
be asserted by either Party as a breach by such Party.
6 DEFAULT AND REMEDIES FOR DEFAULT
6.1 Default.
No Party shall be in default under this Agreement unless it has failed to materially
perform under the Agreement for a period of sixty (60) days after written notice from the other
Party of an event of default. The notice of an event of default shall specify in detail the nature of
the alleged default and the manner in which the default may be satisfactorily cured. If the nature
of the alleged default is such that it cannot reasonably be cured within such 60-day period, the
cofirmencement of the cure within such time period and the diligent prosecution to completion of
the cure shall be deemed to satis$z such requirement.
6.2 Remedies.
After the expiration of the sixty (60) day notice and cure period (or longer, as
applicable) set forth in Section 6.1, if the alleged default is not cured to the reasonable
satisfaction of the Party alleging default, the Party alleging default, at its option,n&y give notice
of intent to terminate the Agreonent pursuant to Califomia Government Code $65868.
Following notice of intent to terminate, the matter shall be scheduled for a public hearing before
the City Council to review and consider the matter within 30 days. Following consideration of
the evidence presented in the review, if the City Council determines that there is substantial
evidence that the Party is then in material default under this Agreement, the Party alleging the
default may give written notice of termination of this Agreement.
6.3 SpecificPerformance.
The Parties acknowledge that monetary damages and remedies at law generally
are inadequate and that specific performance is an appropriate remedy for the enforcement of this
Agreement and shall be available to all Parties for the following reasons:
6.3.1 Due to the size, nature and scope of the Project, it will not be practical, or
possible, to restore the Property to its pre-existing condition once implementation of this
Agreement has begun. After such implementation, Owner may be foreclosed from other choices
it may have had to utilize the Property and provide for other benefits. Owner has invested
significant time and resources and performed extensive planning and processing of the Project in
agreeing to the terms of this Agreement, and will be investing even more significant time and
resources in implementing the Project in reliance upon the terms of this Agreement, and it will
not be possible to determine the sum of money that would adequately compensate Owner for
such efforts. By the same token, City will have invested substantial time and resources and will
have permitted irremediable changes to the land and increased demands on the surrounding
AVSP DA.Final
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infrastructure and will have committed, and will continue to commit to Development in reliance
upon the commitment to provide infrastructure and related improvements and other exactions to
meet the needs of the proposed Development and to mitigate its reliance upon the terms of this
Agreanent, and it would not be possible to determine a sum of money which would adequately
compensate City for such undertakings.
6.3.2 The Property, and the use of the Property for the purposes and uses
described in the Planning Documents are unique.
6.4 CumulativeRemedies.
In addition to any other rights or rernedies, either Party may institute legal action
to cure, correct or remedy any default, to enforce any covenant or agreanent herein, or to enjoin
any threatened or attempted violation, including declaratory relief, specific performance,
injunctive relief, and relief in the nature of mandamus. All of the remedies described above shall
be cumulative and not exclusive of one another, and the exercise of any one or more of the
remedies shall not constitute a waiver of election with respect to any other available ranedy.
6.5 Litieation Expenses.
If the City or Owner brings an action or proceeding (including, without limitation,
any cross-complaint, counterclaim, or third-Party claim) against another Party arising out of this
Agreement, the prevailing Party in such action or proceeding shall be entitled to its costs and
expenses ofsuit, including reasonable attorneys' fees.
6.6 Venue.
Venue for all legal proceedings shall be in the Superior Court for the County of
Riverside.
7 AMENDMENT
7.1 Amendment by Asreement.
This Agreement may be amended in writing from time to time by mutual consent
of the Parties or their successors in interest in accordance with City Code Chapter 19.12 and the
Development Agreement Statutes.
8 TERMINATION
8.1 Termination Upon Voter Approval of Land Use Initiative.
This Agreement shall automatically terminate and be of no further force or effect,
in the event the proposed "Alberhill Villages Initiative" set for a Special Municipal Election on
t/lay 2,2017 or any subsequent Voter Initiative affecting the Project is passed.
8.2 Termination Upon Completion of Development.
This Agreement shall terminate upon the expiration of the term, as more
particularly set forth in Section 1.4 above, or when the Property has been fully developed and all
of Owner's and City's respective obligations under this Agreanent have been fully performed
and satisfied, whichever first occurs. Upon termination of this Agreement, the City shall record
l8
AVSP DA.Final
a notice of such termination in a form satisfactory to the City Attorney that the Agreement has
been terminated. Notwithstanding anything to the contrary contained in this Agreanent, this
Agreement shall automatically terminate and be of no further force or effect as to any single-
family residence or any non-residential building, and the lot or parcel upon which such residence
or building is located, when it has been approved by the City for occupancy.
8.3 Land Use Entitlements Followine Termination.
Termination of this Agreement shall not affect the General Plan and Zoning
Amendments referenced in Recital E, the Amended and Restated AVSP, any applicable zoning,
subdivision map, permits or other land use entitlements approved with respect to the Property.
8.4 Fees Followine Termination.
Upon termination of this Agreernent, Owner shall be required to pay the Alberhill
Park Fee and all development impact fees then imposed by City on and in connection with new
Development at the rate in effect as of the date of issuance of each building permit in the Project;
provided, however, Owner shall not be required to pay the Affordable Housing In Lieu Fee for
Development in the Project. In addition, the obligation to pay DAG Fees shall cease upon
termination of this Agreement.
9 GENERAL PROVISIONS
9.1 Notices.
Any notice or communication required hereunder between or among City or
Owner must be in writing, and may be given either personally or by registered or certified mail,
retum receipt requested to the addressees listed below. If given by registered or certified mail,
the same shall be deemed to have been given and received on the first to occur of (i) actual
receipt by the addressees designated below as the Party to whom notices are to be sent, or (ii)
thres (3) days after a registered or certified letter containing such notice, properly addressed,
with postage prepaid, is deposited in the United States mail. If personally delivered, a notice
shall be deemed to have been given when delivered to the Party to whom it is addressed. Any
notices or cornmunications shall be glven to the Parties at their addresses set forth below:
If to City:City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attn: City Manager
Facsimile: (951) 67 4-2392
Leibold McClendon & Mann PC
9841 Irvine Center Drive, Suite 230
lrvine, CA926l8
Attention: Barbara Leibold
Facsimile: (949) 585-6305
Pacific Clay Products, Inc.
14741 Lake Street
Lake Elsinore, CA 92530
With a copy to:
If to Owner:
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With a copy to:
Attention: Legal Department
Pacific Clay Products, Inc.
c/o Castle & Cooke Alberhill Home Building, Inc.
10000 Stockdale Highway, Suite 300
Bakersfield, CA 9331I
Attn: Laura Whitaker
Jones & Beardsley, P.C.
Attn: Mark A. Jones
10000 Stockdale Highway, Suite 395
Bakersfield, CA 93311
And with a copy to:
Any Party hereto may at any time, by giving written notice to the other Party as provided
in this Section, designate any other address in substitution of the addresses listed above.
9.2 Third Party Claims.
Owner shall defend, at its expense, including costs and attorneys' fees, indemnifu,
and hold harmless City, its agents, officers, officials, commissions, councils, committees, boards
and employees from any claim, action or proceeding against City, its agents, officers, officials,
commissions, councils, committees, boards or anployees to attack, set aside, void, or annul the
approval of this Agreement, the validity of any provision of this Agreement, any breach
hereunder, or any action taken or decision made hereunder, including the approval of any permit
granted pursuant to this Agreement, excluding only such claims, actions or proceedings which
arise from City's sole negligence, willful misconduct or breach of its obligations under this
Agreement. City shall promptly notiff Owner of any such claim, action or proceeding, and City
shall cooperate in the defense. In any defense of City and/or Owner against such an action,
Owner shall have the right to select legal counsel and any experts or consultants deerned
necessary and appropriate by Owner, subject to City's approval which shall not be unreasonably
withheld. Owner's obligation to indemniff City hereunder shall survive any termination of this
Agreement.
9.3 Further Actions.
Each Party shall take such further actions and execute and deliver to the other
such further instruments and documents as may be reasonably necessary to carry out this
Agreement in order to provide and secure to the other Party the full and complete enjoyment of
its rights and privileges hereunder.
9.4 No Joint Venture or Partnership or Third Party Beneficiar,v.
City and Owner agree that no joint venture or partnership exists between thern
and agree that nothing contained in this Agreanent or in any document executed in connection
herewith shall be construed as making City and Owner joint venturers or partners.
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9.5 Recitals.
The Recitals in this Agreement are material and are incorporated herein by
reference as though fully set forth herein.
9.6 Exhibits.
The Exhibits to this Agreement is incorporated herein by reference as though fully set
forth herein
9.7 Applicable Law.
This Agreanent shall be construed and enforced in accordance with the laws of
the State of Califomia.
9.8 Severability.
If any of the provisions contained in this Agreement are determined to be void,
invalid or unenforceable, the rernainder of this Agreanent shall rernain in full force and effect.
9.9 Intemretation.
This Agreement was fully negotiated between the Parties hereto and none of the
terms of this Agreement shall be interpreted against any Party as the drafter of this Agreement.
9.10 Entire Apreement.
This Agreement sets forth and contains the entire understanding and agreement of
the Parties with respect to the subject matter of this Agreement. Without limiting the generality
of the foregoing, this Agreernent supersedes and replaces that certain Preannexation and
Development Agreement by and between the City of Lake Elsinore and Pacific Clay Products,
lnc. recorded November 10, 2003 as Document No. 2003-889128 in the Official Records of
Riverside County, California, and all rights and obligations of the Parties thereunder.
s IGNATURE PAGE FOLLOI|/SI
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IN WITNESS WHEREOF, Owner and the City have executed this Agreement as of the
date first hereinabove written.
CITY: C
a murucl
ATTEST:
OWIIER: PACIFIC CLAY PRODUCTS,
INC., a Delaware corporation
By:
Name:
Title:
Attachments:
ExhibitA- LegalDescription
Exhibit B - Assignment and Assumption Agreement
ExhibitC- ReimbursementAgreement
N o t ary Ac lcnow I e dgme nt s Att ac he d
By:
By:
Lei
AVSP DA.Final
22
AS TO FORM:
City Attorney
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
County of RtVelat/<- )
on -T& // LE t,c o t Y , before me, Lq:Fe ilo t,taurl a
Notary Pu6lic, personally appeared Kct i f ln in who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/resubscribed to the
within instrument and acknowledged to me that he/she#hey executed the same in hisAres4hoir
authorized capacity(ks), and that by his/herltkir signature(+) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
Affix seal here)
STATE OF CALIFORNIA
AVSP DA.Final
EXHIBIT "A"
LEGAL DESCRIPTION
FOR
AtBERHItL VITLAGES PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF IAKE ELSINORE, IN THE COUNry OF
RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOTS 1, 2, 3, 5, 8, 9 AND 10 INCLUSIVE OF TRACT NO. 35OOO, IN THE CIW OF LAKE ELSINORE, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 446, PAGES 88 THROUGH ],05,
INCLUSIVE, OF MAPS, RECORDS OF SAID COUNW.
TOGETHER WITH PARCELS A, B, & C, OF GRANT DEED RECORDED NOVEMBER 23, 2016 AS INSTRUMENT
NO. 2015-0523978 0F OFFTCAL RECORDS.
Page 1 of I
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EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attention: City Clerk
Space above for Recorder's use)
Exanpt from Recording Fees Per Govt Code $27383.)
ASSIGNMENT AND ASSUMPTION AGREEMENT
RELATIVE TO A DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF LAKE ELSINORE AND PACIFIC CLAY
PRODUCTS, [NC. REGARDING THE DEVELOPMENT KNOWN AS
ALBERHILL VILLAGES
This Assignment and Assumption Agreement ("Aereement") is entered into this _
20-, by and between Pacific Clay Products, Inc., aDelawaredayof
corporation ("Owner") and ("Assigree").
RECITALS
A. On the City of Lake Elsinore and Owner entered into
an agreement titled "Development Agreement By and Between the City of Lake Elsinore and
Pacific Clay Products, Inc. Regarding the Development Known as Alberhill Villages
Development AEreement"), pursuant to which the City of Lake Elsinore ("eily") and Owner
agreed to certain matters relating to the Development of certain real property owned by Owner as
more particularly described in said Development Agreement (the "Property''). The Development
Agreement was recorded against the Property in the Official Records of Riverside County,
Califomia, on ,20-, as Document No.
B. Owner entered into a [purchase and sale agreement, erc.] whereby a portion of
the Property will be lsold, etc.) to Assignee, which portion of the Property is identified and
described in Exhibit A attached hereto and incorporated herein by this reference ("Assisned
Parcel(s)").
C. Owner desires to assign to Assignee all of Owner's rights, interests, benefits,
burdens and obligations under the Development Agreement with respect to the Assigned
Parcel(s).
a
20
AVSP DA.Final EXHIBIT B
D. Assignee desires to assume all of Owner's rights, interests, benefits, burdens and
obligations under the Development Agreernent with respect to the Assigned Parcel(s).
NOW, THEREFORE, Owner and Assignee hereby agree as follows:
1. Owner hereby assigns, effective as of Owner's conveyance of the Assigned
Parcel(s) to Assignee; all of the rights, interests, benefits, burdens and obligations of Owner
under the Development Agreement with respect to the Assigned Parcel(s) lif applicable,
reserving to Owner the following righ*/interest/benefits/burdens/obligations, etc.: I
Owner retains all the rights, interest, benefits, burdens and obligations under the Development
Agreonent with respect to all other property within the Property owned by Owner.
2. Assignee hereby assumes all of the rights, interests, benefits, burdens and
obligations of Owner under the Development Agreernent, md agrees to observe and fully
perform all of the duties and obligations of Owner under the Development Agreement, and to be
subject to all the terms and conditions thereof, with respect to the Assigned Parcel(s) [f
applicable, to the extent hereby assigned), it being the express intention of both Owner and
Assignee that, upon the execution of this Agreement and conveyance of the Assigned Parcel(s)
to Assignee, Assignee shall become substituted for Owner as the "Owner" under the
Development Agreement with respect to the Assigned Parcel(s) lif applicable, to the extent
hereby assignedf.
3. All of the covenants, terms and conditions set forth herein shall be binding upon
and shall inure to the benefit of the Parties hereto and their respective heirs, successors and
assigns.
4. The Notice Address described in Section l.l3 of the Development Agreement for
the Assignee with respect to the Assigned Parcel(s) shall be:
5. Under the terms and conditions of the Development Agreement, Owner is hereby
released and relieved of all burdens and obligations under the Development Agreernent with
respect to the Assigned Parcel(s).
ISIGNATURE PAGE FOLLOWSI
EXHIBIT B
2
AVSP DA.Final
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and
year first above written.
OWNER: PACIFIC CLAY PRODUCTS,
INC., a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
ASSIGNEE:
By:
Name:
Title:
By:
Name:
Title:
N o t ary A clcnowl edgment s Att ached
EXHIBIT B
J
AVSP DA.Final
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
LEGAL DESCRIPTION OF ASSIGNED PARCEL(S)
ATTACHED
AVSP DA.Final
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT C
REIMBURSEMENT AGREEMENT
IATTACHED]
AVSP DA.Final EXHIBITC_PAGE 1
FORM
REIMBURSEMENT AGREEMENT
Alberhill Villages Specific Plan
Regional Sports Park
THIS REIMBURSEMENT AGREEMENT ("Reimbursement Agreement"), entered into
this _ day of (the "Effective Date"), between the CITY OF LAKE
ELSINORE, a municipal corporation ("City"), and
Developer"). City and Developer are sometimes hereinafter
referred to individually as "party" and collectively as "parties."
RECITALS
The following Recitals are a substantive part of this Reimbursernent Agreernent. All
capitalized terms set forth in the Recitals shall have the meanings ascribed in the Development
Agreement as defined hereinbelow and as provided in Section t hereof unless otherwise
provided herein.
A. City and Pacific Clay Products, Inc. ("Pac Clay") have entered into that certain
Development Agreement dated for identification as of February 28,2017 (the "Development
Agreement") relating to the development of a mixed-use residential development commonly
known as Alberhill Villages on approximately 1,375 acres of land (the "Properfy") as set forth in
the Amended and Restated Alberhill Villages Specific Plan (the "Project").
B. The development of the Project includes Pac Clay's obligation to dedicate and
construct a 45.9-acre City Regional Sports Park in accordance with the Amended and Restated
Alberhill Villages Specific Plan and the Development Agreernent and provides for the
reimbursement to Pac Clay or its successors in interest for the cost of the on-site park
improvements (the "Park Improvements") from available Alberhill Park Fees paid to City as a
condition to the issuance of residential building permits in the Project.
C. Developer is the owner of all or a portion of the Property and successor in interest
to the Development Agreernent.
D. This Reimbursernent Agreement is entered into (1) for the pu{pose of
coordinating Developer's planning, entitling and constructing of the Park Improvements in
accordance with a conceptual design plan approved by the City Council, (2) to ensure that the
Park Improvernents are designed, engineered, permitted and constructed in accordance with
City standards, and (3) to provide a mechanism to reimburse Developer for reasonable and
customary costs and expenses incurred in the design, engineering and construction of all or any
portion of the Park Improvements (the "Reimbursements"), all as specifically set forth in the
terms and conditions described below.
E. The total cost of the Park Improvements is estimated to be in excess of
milliondollars($-).Subjecttothereimbursementprovisionssetforthinthis
AVSP DA.Final EXHIBITC_PAGE2
Reimbursement Agreement, the Developer will finance and complete that portion of the Park
Improvements described in Attachment No. I attached hereto and incorporated herein by
reference. City agrees to reimburse Developer from available Alberhill Park Fees for the Actual
Cost of that portion of the Park Improvernents completed by Developer.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
Section 1. Definitions
The following terms shall have the meanings ascribed to them in this Section I for
purposes of this Reimbursernent Agreement. Unless otherwise indicated, any other terms,
capitalized or not, when used herein shall have the meanings ascribed to them in the
Development Agreement.
Actual Cost" means the cost of the Park Improvernents incurred by Developer,
which cost may include: (i) the actual hard costs for the construction of such Park
Improvements, including labor, materials and equipment costs; (ii) professional costs associated
with such Park Improvements, such as engineering, inspection, construction staking, materials
testing and similar professional services incurred in preparing the Plans for and constructing such
Park Improvements; (iii) fees paid to govemmental agencies for obtaining Permits (as defined in
Section 4 below), for the issuance of licenses or other governmental approvals, ffiy Existing
Development Impact Fees (as defined in Sections 1.3.14 and 2.6.3 of the Development
Agreernent), any fees for facilities and services including water and sewer connection fees paid
to EVMWD, any gas and electricity connection and facility extension fees, and any mitigation
fees, to the extent such fees are paid for the Park Improvements; (iv) other on-site costs directly
related to the construction and/or acquisition of the Park Improvements including, without
limitation, on-site supervision, on-site equipment and trailer rentals, and on-site portable
sanitation facilities. Actual Cost shall not include any internal or overhead costs of Developer.
Alberhill Park Fee" means the fee to be paid by Developer to City prior to the
issuance of any residential building permit in the Project in an amount equal to $2.00 per square
foot of assessable space. For purposes of this Reimbursement Agreement, "assessable space"
means all of the square footage within the perimeter of a residential structure, not including any
carport, walkway, garage, overhang, patio, detached accessory structure or similar area. The
amount of square footage within the perimeter of a residential structure shall be calculated by the
City's building department in accordance with the City's standard practice of calculating
strucfural perimeters.
Alberhill Park Fund" means the segregated account established by the City in
which all Alberhill Park Fees shall be deposited and which shall be used exclusively to fund the
Park Improvements; provided, however, upon final completion of 45.9 acre City Regional Sports
Park, and City's payment in full of all costs of such improvements from the Alberhill Park Fund,
any remaining balance in the Alberhill Park Fund may be expended by City for park
improvements within the Alberhill District as defined by the City's General Plan.
AVSP DA.Final EXHIBITC_PAGE3
Amended and Restated AVSP" means the Amended and Restated Alberhill
Villages Specific Plan approved by the City Council on February 28,2017 by Ordinance No.
20t7-1369.
City Manager" means City Manager of the City or designee.
Development Agreement" means that certain Development Agreement by and
between the City of Lake Elsinore and Pacific Clay Products, Inc. dated February 28,2017 and
approved by the City Council on February 28,2017 by Ordinance No. 201 7-1370.
Park Improvements" are those on-site improvernents described in Attachment
No. I to this Reimbursement Agreement completed by the Developer and approved in
accordance with the Development Agreernent and the Amended and Restated AVSP.
Plans" means the detailed plans, specifications, schedules and related
construction contracts for the Park [mprovements approved by the City Manager pursuant to
applicable City standards.
Reimbursement Request" means a document, substantially in the form of
Attachment No. 2 hereto, to be used in requesting a payment of a reimbursement amount.
Section 2. Dutv of Developer to Construct. The Developer shall construct or cause
to be constructed at its own cost, expense and liability the Park Improvonents in accordance with
the plans and specifications which have been or will be prepared by or on behalf of Developer
and approved by the City Manager as set forth in this Agreement and in accordance with
applicable federal, state and local laws, regulations and standards. The Developer shall perform
all of its obligations hereunder and shall conduct all operations with respect to the construction
of the Park Improvernents in a good, workmanlike and commercially reasonable manner, with
the standard of diligence and care noffnally employed by duly qualified persons utilizing
commercially reasonable efforts in the performance of comparable work and in accordance with
generally accepted practices appropriate to the activities undertaken.
Section 3. Preparation and Approval of Plans and Specifications. The Developer
has or shall cause such plans and specifications as required by the City Manager (the "Plans") to
be prepared for the Park Improvements and shall obtain the written approval of the Plans from
the City and all other public agencies exercising jurisdiction over such improvements, the
Property or the Project.
Section 4. Licenses and Permits. Prior to commencement of construction,
Developer shall have secured (or shall have caused to be secured) any and all permits
Permits") which may be required by the City or any other governmental agency affected by the
construction of the Park lmprovements. The Developer shall be responsible for paying all
applicable fees and charges to the City to obtain any land use entitlements and permits which are
necessary to construct the Park Improvements.
AVSP DA.Final EXHIBITC_PAGE4
Section5. ConstructionRequirements.
a) The Developer shall require, and the specifications and contract documents
shall require all contractors, subcontractors, vendors, equipment operators and owner operators, in
each such case to the extent such individuals or entities are engaged to perform work on the Park
Improvements, to pay at least general prevailing wage rates to all workers ernployed in the
execution of the contract, to post a copy of the general prevailing wage rates at the job-site in a
conspicuous place available to all ernployees and applicants for ernployment, and to otherwise
comply with applicable provisions of the Califomia Labor Code, the Califomia Government Code
and the California Public Contracts Code relating to general prevailing wage rates as required by the
specifications approved by the City Manager.
O) The Developer shall require each contractor, subcontractor, vendor,
equipment operator and owner operator, in each such case to the extent such individual or entity is
engaged to perform work on the Park Improvernents, to provide proof of insurance coverage
satisffing the requirernents of Section l2 hereof throughout the term of the construction of the Park
Improvements. Rather than requiring its contractors to provide such insurance, the Developer may
elect to provide the same for the benefit of its contractors.
c) The Developer shall comply, and shall cause each contractor, subcontractor,
vendor, equipment operator and owner operator, in each such case to the extent such individual or
entity is engaged to perform work on the Park Improvements, to comply with such other
requirements relating to the construction of the Park Improvernents as the City may impose by
written notification delivered to the Developer, to the extent legally required as a result of changes
in applicable federal, state or City laws, rules or procedures.
d) The Developer shall require, and the specifications and bid and contract
documents shall require, all contractors, subcontractors, vendors, equipment operators and owner
operators, in each such case to the extent such individuals or entities are engaged to perform work
on the Park Improvements, to submit certified weekly payroll records to the City Manager promptly
upon request.
The Developer shall provide proof to the City Manager, at such intervals and in such
form as the City Manager may require, that the foregoing requirements have been satisfied as to the
Park Improvements.
Section 6. Inspection: Completion of Construction. The City Manager shall have
responsibility for providing inspection of the work of construction of the Park Improvernents to
insure that the work of construction is accomplished in accordance with the Plans approved by the
City Manager. City personnel shall have access to the site of the work construction at all reasonable
times for the purpose of accomplishing such inspection.
No later than ten business days after receiving notification from the City that the Park
Improvements have been constructed in accordance with the Plans, the Developer shall forthwith
file with the Lake Elsinore City Clerk a Notice of Completion pursuant to the provisions of Section
3093 of the California Civil Code.
AVSP DA.Final EXHIBITC_PAGE5
Section 7. Maintenance of Facilities: Warranties. The Developer shall maintain the
Park Improvements in good and safe condition until they are approved and accepted by the City.
Prior to the City's acceptance of the Park Improvements, the Developer shall be responsible for
maintaining the Park Improvernents in proper operating condition, and shall perform such
maintenance as the City Manager reasonably determines to be necessary. As of the date of the
City's acceptance of the Park Improvements, the Developer shall assign to the City all of the
Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of
contingent obligations of third persons with respect to the Park Improvements.
Section 8. Ownership of Park Improvements. Notwithstanding the fact that a portion
or all of the Park Improvements may be constructed on property that has been or will be dedicated
to the City, the Park Improvements shall be and remain the property of the Developer until
acceptable title thereto is conveyed to the City as provided herein. Such ownership by the
Developer shall likewise not be affected by any agreement that the Developer may have entered into
or may enter into with the City pursuant to the provisions of the Subdivision Map Act, Section
66410 et seq. of the Code, and the provisions of this Section shall control.
Section 9. Acquisition of Park Improvements. The Developer hereby agrees to
convey to the City and the City hereby agrees to accept the satisfactorily completed Park
Improvements subject to the terms and conditions hereof. City may accept fully completed portions
as discrete components of the Park Improvements prior to such time as all of the Park
Improvements are complete, which shall not release or modify Developer's obligation to compete
the remainder of the Park Improvements. For purposes of this Agreement, "satisfactorily
completed" shall mean completed by Developer in accordance with all Plans, permits and all
applicable federal, state and local laws, regulations and standards. Notwithstanding the foregoing,
City may not accept any Park Improvements unless and until Developer provides one set of "as
built" or record drawings or plans to the City for such Park Improvements. The drawings shall be
certificated and shall reflect the condition of the Park Improvements as constructed, with all
changes incorporated therein.
Section 10. Pavment of Alberhill Park Fee. Notwithstanding the Developer's
obligation to construct the Park Improvements, Developer (or merchant builder, if applicable) shall
pay the Alberhill Park Fee in the full amount established pursuant to the Development Agreement
and as set forth in Section I of this Reimbursement Agreement. The Alberhill Park Fee shall be
deposited by the City into the Alberhill Park Fund designated for the cost of construction of Park
Improvements which shall be the sole source of funds to pay Reimbursements pursuant to this
Agreernent and the City shall not be obligated to pay any Reimbursernents except from
unencumbered amounts in the Alberhill Park Fund held by the City for such purposes.
Section 11. Reimbursement Request: Reimbursement Notice and Pavment of
Reimbursements.
a) The Developer acknowledges that the Reimbursements paid for the Park
Improvements accepted by the City pursuant to this Agreement shall not exceed the amount of
unencumbered Alberhill Park Fees in the Alberhill Park Fund.
AVSP DA.Final EXHIBITC_PAGE6
b) Upon recordation of a Notice of Completion for Park Improvernents and
acceptance of the Park lmprovernents by the City, the Developer shall submit to the City Manager a
Reimbursement Request in the form of Attachment No. 2 attached hereto and incorporated herein
by this reference, including copies of contracts, invoices, cancelled checks or other documentation
requested by the City Manager evidencing costs actually incurred by Developer ("Reimbursement
Request"). The dollar amount of the Reimbursement Request shall not exceed the Amended. The
City Manager shall use commercially reasonable efforts to determine the amount of the
Reimbursements within thirty (30) days of receipt of the Reimbursement Request submiued by the
Developer. In the event the City Manager determines that he does not have the resources or the
expertise to verifu the Developer's cost of constructing the Park Improvements, the City may in its
sole discretion and at Developer's cost and expense engage a qualified consultant to verify and
calculate such costs. Developer agrees that the actual costs of such qualified consultant, 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, shall be paid first from available funds in the Alberhill Park Fund and, if
Alberhill Park Fees are not available, Developer agrees to deposit funds immediately upon demand
by City to pay for such costs which shall be added as eligible costs to the Reimbursement Request.
c) The City Manager will provide the Developer written notice (the
Reimbursement Notice"), of the approved dollar amount of the Reimbursements. Once completed,
the Reimbursement Notice will be executed and dated by the City Manager and the Developer. If
there are insufficient unencumbered funds in the Alberhill Park Fund to fully pay the
Reimbursements, Developer reserves the right to request City to pay any unreimbursed amounts
approved in the Reimbursement Notice in the future to the extent that the City Manager determines
that unencumbered funds are available in the Alberhill Park Fund. Upon such determination by the
City Manager, the City Manager is authorized to approve paynent of such Reimbursements.
d) All Reimbursements administered by the City pursuant to this Agreement
shall be with the Developer only, unless modified by a separate agreement between the City and the
Developer or other successor in interest to Pac Clay.
Section 12. Insurance Requirements. Without limiting or diminishing the Developer's
obligation to indemnify or hold the City harmless, the Developer shall procure and maintain or
cause to be maintained, at its sole cost and expense, the following insurance coverage during the
term of this Agreement.
i) Commercial General Liability: Developer shall maintain Commercial
General Liability insurance coverage, including but not limited to, premises liability,
contractual liability, products and completed operations, explosion, collages, use of
cranes, and other heavy equipment and underground hazards, personal and
advertising injury covering claims which may arise from or out of Developer's
performance of its obligations hereunder ("Policy''). The Policy shall name by
endorsement the City and its special districts, respective directors, officers, Board of
Supervisors, elected officials, employees, agents or representatives as Additional
Insureds. The Policy's limit of liability shall not be less than $1,000,000 per
occurrence combined single limit. If such insurance Policy contains a general
AVSP DA.Final EXHIBITC-PAGE7
aggregate limit, it shall apply separately to this Agreonent or be no less than two (2)
times the occurrence limit.
ii) Vehicle Liability: Developer shall maintain liability insurance for all owned,
non-owned or hired vehicles in an amount not less than $1,000,000 per occurrence
combined single limit. If such insurance contains a general aggregate limit, it shall
apply separately to this Agreonent or be no less than fwo (2) times the occurrence
limit. Policy shall name by endorsement the City, its special districts, their
respective directors, offrcers, Board of Supervisors, elected officials, employees,
agents or representatives as Additional Insureds.
iii) Worker's Compensation Insurance: Developer shall maintain Workers'
Compensation Insurance (Coverage A) as prescribed by the laws of the State of
Califomia.
Section 13. Representations. Warranties and Covenants of the Developer. The
Developer makes the following representations, warranties and covenants for the benefit of the City,
as of the date hereof and as of the date of the Reimbursement Request is delivered to the City
hereunder:
a) Oreanization. The Developer represents and warrants that the Developer is a
duly organized and validly existing under the laws of the State of
is in good standing under the laws of the State, and has the power and
authority to own its properties and assets and to carry on its business as now being conducted and as
now contemplated.
b) Authority. The Developer represents and warrants that the Developer has the
power and authority to enter into this Agreernent, and has taken all action necessary to cause this
Agreernent to be executed and delivered, and this Agreement has been duly and validly executed
and delivered on behalf of the Developer.
c) Bindine Obligation. The Developer represents and warrants that this
Agreement is a valid and binding obligation of the Developer and is enforceable against the
Developer in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general and by general equity
principles.
d) Oualifications and Licenses. Developer represents that it or its contractors
shall possess the skills, qualifications and experience to perform the work assigned to than, and that
they shall have all licenses, permits, certifications and approvals of whatever nature that are legally
required to perform the work, and that such licenses, permits, certifications and approvals shall be
continuously maintained until all Park Improvements have been accepted by the City.
Notwithstanding the foregoing, nothing set forth in this Agreonent shall be construed to require the
Developer to perform any work requiring a contractor's license, nor shall the Developer be deemed
to be performing construction services pursuant to this Agreonent.
AVSP DA.Final EXHIBITC_PAGE8
e) Comoletion of Park Improvanents. The Developer covenants that it will use
its reasonable and diligent efforts to do all things that may be lawfully required of it in order to
cause the Park Improvements to be completed in accordance with this Agreement.
f) Compliance with Laws. The Developer covenants that at all times prior to
the City's approval and acceptance of the Park Improvements, including the period of construction,
ownership and maintenance by the Developer, Developer will not commit, suffer or permit any of
its agents, employees or contractors to commit any act to be done in, upon or to the Park
Improvements in violation in any material respect of any law, ordinance, rule, regulation or order of
any govemmental authority or any covenant, condition or restriction now or hereafter affecting the
Property or the Park Improvernents, including but not limited to the Americans With Disabilities
Act (ADA) of 1990, (42 U.S.C. l2l0l, et seq.), and regulations and guidelines issued pursuant to
the ADA, and Labor Code Sections 1700-1775, which require prevailing wages to be paid to any
employee performing work covered by Labor Code Section 1720 et seq. Developer hereby agrees
and acknowledges that it has not received, and is not relying on any statements or representations by
City or any of its officers, agents or ernployees in entering into this Agreement, specifically
including but not limited to any statements or representations regarding the applicability of Labor
Code Section 1720, et seq. to the development or construction of the Project or specifically the Park
lmprovements, and Developer hereby expressly waives, releases and relinquishes any and all rights
and interests in and to any claim it has, or may have in the future, against the City in connection
with this Agreement, including specifically but not limited to any right or interest in any claim
pertaining to the payment of, or obligation to pay, prevailing wages pursuant to of Labor Code
Section 1720, et seq.
g) Reimbursement Reouests. The Developer represents and warrants that it will
diligently follow all procedures set forth in this Agreement with respect to Reimbursement Requests
and that all documentation submitted shall be true and accurate.
h) Financial Records. Until the City's final acceptance of the Park
lmprovements, the Developer covenants to maintain proper books of record and account for the
Park Improvernents and all costs related thereto. The Developer covenants that such accounting
books will be maintained in accordance with generally accepted accounting principles, and will be
available for inspection by the City and the City Manager, at any reasonable time during regular
business hours on two business days' prior written notice, subject to mutually acceptable
arrangements regarding the confidentiality of proprietary data.
i) Environmental Matters. The Developer represents and warrants that it has
complied with, has caused compliance with, or will cause compliance with, the Califomia
Environmental Quality Act ("CEQA") and all applicable federal, state and local environmental
laws, regulations and standards as required for the construction of the Park Improvements and its
conveyance to the City.
Section 14. Representations. Warranties and Covenants of Citv. City makes the
following representations, warranties and covenants for the benefit of the Developer:
a) Authority. City represents and warrants that City has the power and authority
to enter into this Agreement, and has taken all action necessary to cause this Agreonent to be
AVSP DA.Final EXHIBTTC_PAGE9
executed and delivered, and this Agreement has been duly and validly executed and delivered on
behalf of the City.
O) Binding Obligation. City represents and warrants that this Agreernent is a
valid and binding obligation of City and is enforceable against City in accordance with its terms,
subject to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general equity principles.
c) Completion of the Park Improvements. The City covenants that it will use its
reasonable and diligent efforts to expeditiously take all actions that may be lawfully required of it in
issuing permits, processing and approving plans and specifications and inspecting the Park
Improvements in accordance with this Agreement.
d) Reimbursement Requests. City represents and warrants that it will diligently
follow all procedures set forth in this Agreement with respect to the evaluation of Reimbursement
Requests and payment of the Reimbursements.
Section 15. Indemnification. The Developer agrees to protect, indemnifu, defend and
hold the City, and its respective officers, ernployees and agents, and each of them, harmless from
and against any and all claims, losses, expenses, suits, actions, decrees, judgments, awards,
attorney's fees, and court costs (including any claims or liability asserted pursuant to Labor Code
Section 1720, et seq.) which the City, or its respective officers, ernployees and agents, or any
combination thereof may suffer or which may be sought against or recovered or obtained from the
City, or its respective officers, employees or agents, or any combination thereof, as a result of or by
reason of or arising out of or in consequence of (a) the acquisition, construction, or installation of
the Park Improvements occurring prior to the City's acceptance of such Park Improvements by the
City; (b) the untruth or inaccuracy of any representation or warranty made by the Developer in this
Agreement or in any certifications delivered by the Developer hereunder; or (c) any act or omission
of the Developer or any of its subcontractors, or their respective officers, employees or agents, in
connection with the Park Improvements. If the Developer fails to do so, the City shall have the
right, but not the obligation, to defend the same and charge all of the direct or incidental costs of
such defense, including any attorneys' fees or court costs, to and recover the same from the
Developer.
Section 16. Developer as a Private Developer. In performing under this Agreement, it
is mutually understood that the Developer is acting as a private developer, and not as an agent of the
City. The City shall have no responsibility for payment to any contractor, subcontractor or supplier
of the Developer. Accordingly, this Agreement does not constitute a debt or liability of the City.
Except as expressly provided in Section I I regarding Reimbursements, the City shall not be
obligated to advance any of its own funds or any other costs incurred in connection with the Project.
No member, official or ernployee of the City shall be personally liable to the Developer, or any
successor in interest, in the event of any default or breach by the City or for any amount which may
become due to the Developer or its successors, or on any obligations under the terms of this
Agreernent.
Section 17. Other Asreements. Nothing contained herein shall be construed as affecting
the City's or the Developer's respective duty to perform its respective obligations under other
AVSP DA.Final EXHIBITC-PAGE IO
agreements, land use regulations or subdivision requiranents relating to the development of the
Property, which obligations are and shall remain independent of the Developer's rights and
obligations, and the City's rights and obligations, under this Agreement; provided, however, that the
Developer shall use its reasonable and diligent efforts to perform each and every covenant to be
performed by it under any lien or encumbrance, instrument, declaration, covenant, condition,
restriction, license, order, or other agreement, the nonperformance of which could reasonably be
expected to materially and adversely affect the acquisition, construction and installation of the Park
Improvements.
Section 18. Binding on Successors and Assiqns. Neither this Agreanent nor the duties
and obligations of the Developer hereunder may be assigned to any person or legal entity without
the written consent of the City, which consent shall not be unreasonably withheld or delayed.
Neither this Agreernent nor the duties and obligations of the City hereunder may be assigned to any
person or legal entity, without the wriffen consent of the Developer, which consent shall not be
unreasonably withheld or delayed. The agreements and covenants included herein shall be binding
on and inure to the benefit of any partners, permitted assigns, and successors-in-interest of the
parties hereto.
Section 19. Amendments. This Agreement can only be amended by an instrument in
writing executed and delivered by the City and the Developer.
Section 20. Waivers. No waiver of, or consent with respect to, any provision of this
Agreement by a party hereto shall in any event be effective unless the same shall be in writing and
signed by such party, and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given.
Section 21. No Third Partv Beneficiaries. No person or entity, other than the City,
shall be deemed to be a third party beneficiary hereof, and nothing in this Agreernent (either express
or implied) is intended to confer upon any person or entity, other than the City and the Developer
and their respective successors and assigns), any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
Section 22. Notices. Any written notice, statement, demand, consent approval,
authorization, offbr, designation, request or other communication to be given hereunder shall be
gtven to the party entitled thereto at its address set forth below, or at such other address as such
party may provide to the other party in writing from time to time, namely:
Developer:
And with a copy to: Pacific Clay Products, Inc.
c/o Castle & Cooke Alberhill Home Building, Inc.
10000 Stockdale Highway, Suite 300
Bakersfield, CA 93311
Attn: Laura Whitaker
AVSP DA.Final EXHIBITC_PAGE II
And with a copy to:Jones & Beardsley, P.C.
Attn: Mark A. Jones
10000 Stockdale Highway, Suite 395
Bakersfield, CA 93311
City of Lake Elsinore
Attn: City Manager
130 South Main Street
Lake Elsinore, CA 92539
Facsimile: (951) 67 4-2392
City:
And with a copy to: Leibold McClendon & Mann, P.C.
Attn: Barbara Leibold
9841 Irvine Center Drive, Suite 230
Irvine, CA926l8
Each such notice, statement, demand, consent, approval, authorization, offer, designation,
request or other communication hereunder shall be deemed delivered to the party to whom it is
addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic
communication, upon the sender's receipt of an appropriate answerback or other written
acknowledgment, (c) if gtven by registered or certified mail, return receipt requested, deposited
with the United States mail postage prepaid, 72 hours after such notice is deposited with the United
States mail, (d) if given by overnight courier, with courier charges prepaid, 24 hours after delivery
to said overnight courier, or (e) if given by any other means, upon delivery at the address specified
in this Section.
Section 23. Jurisdiction and Venue. City and the Developer (a) aglee that any suit
action or other legal proceeding arising out of or relating to this Agreonent shall be brought in state
or local court in the County of Riverside or in the Courts of the United States of America in the
district in which the City is located, (b) consent to the jurisdiction of each such court in any suit,
action or proceeding, and (c) waive any objection that it may have to the laying of venue or any suit,
action or proceeding in any of such courts and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. Each of the City and the Developer agrees that a final and
non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law.
Section 24. Attornevs' Fees. If any action is instituted to interpret or enforce any of the
provisions of this Agreement, the prevailing party in such action shall be entitled to recover from
the other party thereto reasonable attorney's fees and costs of such suit (including both prejudgment
and post judgment fees and costs) as determined by the court as part of the judgment.
Section 25. Governins Law. This Agreanent and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
Section 26. Incorooration of Recitals. The parties acknowledge the facts as set forth in
the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
AVSP DA.Final EXHIBITC_PAGE12
Section 27. Usage of Words. As used herein, the singular of any word includes the
plural, and terms in the masculine gender shall include the feminine.
Section 28. Counterparts. This Agreernent may be executed in counterparts, each of
which shall be deemed an original.
Section 29. Default Remedies. Failure by either Party to perform any action or covenant
required by this Reimbursement Agreement constitutes a "Default" under this Reimbursement
Agreement. A Party claiming a Default shall give written Notice of Default to the other Party
specifying such Default. Except as otherwise expressly provided in this Reimbursement
Agreernent, the claimant shall not institute any proceeding against any other Purty, and the other
Party shall not be in Default if such party within thirty (30) days from receipt of such Notice
immediately, with due diligence, commences to cure, correct or remedy such failure or delay and
shall complete such cure, correction or remedy with diligence.
Section 30. Integration. This Reimbursement Agreement and the Development
Agreement contain the entire understanding between the parties relating to the transaction
contemplated by this Reimbursement Agreonent. All prior or contemporaneous agreernents,
understandings, representations and statements, oral or written, are merged in this Reimbursement
Agreement and shall be of no further force or effect. Each Party is entering this Reimbursement
Agreement based solely upon the representations set forth herein and upon each Party's own
independent investigation of any and all facts such party deems material. This Agreement
constitutes the entire understanding and agreement of the Parties, notwithstanding any previous
negotiations or agreements between the parties or their predecessors in interest with respect to all or
any part of the subject matter of this Reimbursement Agreement.
Section 31. Severabilitv. If any term, provision, condition or covenant of this
Reimbursement Agreernent or its application to any party or circumstances shall be held, to any
extent, invalid or unenforceable, the remainder of this Reimbursement Agreement, 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.
Section 32. Leeal Advice. Each Party represents and warrants to the other the following:
they have carefully read this Reimbursernent Agreement, and in signing this Reimbursement
Agreement, they do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matter set forth in this
Reimbursement Agreement, or have knowingly chosen not to consult legal counsel as to the matters
set forth in this Reimbursement Agreernent; and, they have freely signed this Reimbursement
Agreement without any reliance upon any agreement, promise, statement or representation by or on
behalf of the other Party, or their respective agents, ernployees, or attomeys, except as specifically
set forth in this Reimbursement Agreeraent, and without duress or coercion, whether economic or
otherwise.
Section 33. Titles and Captions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Reimbursement Agreement
or of any of its terms.
AVSP DA.Final EXHIBITC_PAGE 13
Section 34. Enforced Delav: Extension of Times of Performance. Performance by
either party hereunder shall not be deemed to be in Default, and all performance and other dates
specified in this Agreement shall be extended, where delays or Defaults are due to: war;
insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the
public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation;
govemmental restrictions or priority; unusually severe weather; inability to secure necessary labor,
materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other
party; acts or failures to act of any other public or govenrmental agency or entity. Notwithstanding
anything to the contrary in this Agreement, an extension of time for any such cause shall be for the
period of the enforced delay and shall commence to run from the time of the cornmencement of the
cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days
of the commencement of the cause. Times of performance under this Agreernent may also be
extended in writing by the mutual agreanent of the City Manager the Developer.
Section 35. Authoritv. The Developer has the legal power, right and authority to
execute, deliver and enter into this Agreement and any and all other agreements and documents
required to be executed and delivered by the Developer in order to carry out, give effect to, and
consummate the transactions contemplated by this Agreement, and to perform and observe the
terms and provisions of all of the above. The persons who have executed this Agreement on behalf
of Developer and all other documents or instruments executed and delivered, or to be executed and
delivered, pursuant to this Agreement are authorized to execute and deliver the same on behalf of
the Developer and all actions required under the organizational documents and applicable governing
law for the authorization, execution, delivery and performance of this Agreement and all other
documents or instruments executed and delivered, or to be executed and delivered pursuant hereto
by the persons which have executed them, have been duly taken.
IN WITNESS WHEREOF, the parties have executed this REIMBURSEMENT
AGREEMENT as of the respective dates set forth below.
CITY"
CITY OF LAKE ELSINORE,
a municipal corporation
Dated:By:
Mayor
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
By:By:
City Clerk , City A
AVSP DA.Final EXHIBITC_PAGE14
DEVELOPER"
Dated:
Dated:
By:
Name:
Title:
By:
Name:
Title:
AVSP DA.Final EXHIBIT C _ PAGE 15
ATTACHMENT NO. 1
PARK IMPROVEMENTS
lTo BE ATTACHEDI
AVSP DA.Final ATTACHMENT NO. I _ PAGE I
ATTACHMENT NO.2
FORM OF REIMBURSEMENT REQUEST
REIMBURSEMENT REQUEST NO.
The undersigned
amount of $
the "Developer") hereby requests payment in the total
for certain Park Improvements (as defined in the Park Improvements
Reimbursement Agreonent (Alberhill Villages Specific Plan Regional Sports Park) by and
between the City of Lake Elsinore (the "City") and Developer, and described in Attachment No.
1 to that Agreement), all as more fully described in Exhibit "A" hereto. [n connection with this
Reimbursement Request, the undersigned hereby represents and warrants to the City as follows:
l. He/She is a duly authorized officer of the Developer, qualified to execute this
Reimbursement Request on behalf of the Developer and is knowledgeable as to the matters set
forth herein.
2. To the extent that this Reimbursernent Request is with respect to completed Park
Improvements, the Developer has submitted or submits herewith to the City, if applicable, as-
built drawings or similar plans and specifications for the iterns to be paid for as listed in Exhibit
A" hereto with respect to any such Park Improvements, and such drawings or plans and
specifications, as applicable, are true, correct and complete.
3. All costs of the Park tmprovements for which Reimbursement is requested hereby
are actual costs and have not been inflated in any respect. The iterns for which Reimbursement
is requested have not been the subject of any prior payment request submitted to the City,
including but not limited to, a request for reimbursement by a Community Facilities District.
4. Supporting documentation (such as copies of contracts, third party invoices, lien
releases, cancelled checks and such other documentation requested by City Manager evidencing
costs actually incurred by Developer) is attached with respect to each cost for which
Reimbursement is requested.
5. The Park Improvements for which Reimbursernent is requested was constructed
in accordance with the requirements of the Agreernent and in compliance with all applicable
legal requirements.
6. The Developer is in compliance with the terms and provisions of the Agreernent
and no portion of the amount being requested to be reimbursed was previously paid.
7. The Reimbursement for the Park Improvements (a detailed calculation of which is
shown in Exhibit "A" hereto for each Park Improvement) has been calculated in conformance
with the terms of the Agreement.
AVSP DA.Final ATTACHMENT NO. 2 _ PAGE 1
I hereby declare under penalty of pe{ury that the above representations and warranties
are true and correct.
DEVELOPER:
By:
Authorized Representative of Developer
Date:
CITY APPROVAL:
By:
City Manager
Amount Approved: $
Date:
Reimbursement Request Approved for
Submission an Payment to City's
Administrative Services Department
By:
City Manager
AVSP DA.Final ATTACHMENT NO. 2 -PAGE2