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10-0323_CONTINUING LIFE COMMUNITES_Agr for ReimbursementL AGREEMENT FOR REIMBURSEMENT OF RAILROAD PUBLIC AT -GRADE CROSSING EXPENSES This Agreement is made and entered into as of the 23`d day of March, 2010, by and between the City of San Juan Capistrano ("City") and Continuing Life Communities Management, LLC, (Developer") (collectively referred to as the "parties"). RECITALS A. Developer is in escrow to purchase property (the "Property") with private access over an active railroad right-of-way in the City of San Juan Capistrano; and B. Developer seeks to develop a retirement community ("Developer's Project") on portions of the Property; and C. Developer has granted City an option to purchase portions of the Property for open space uses, which option is subject to the successful negotiation of a Joint Access Agreement between the seller of the Property and City, among other property owners, for access to the Property through an improved at -grade crossing over the railroad; and D. Developer has agreed to be responsible for the costs of design, permitting, all associated fees, and construction associated with the at -grade railroad crossing; and E. City has agreed to submit applications (the "Applications") to the various governmental agencies and bodies having jurisdiction over the at -grade crossing (the "Agencies") for approval of crossing improvements; and F. Developer agrees to reimburse City for the costs incurred by City in connection with the Applications. AGREEMENT Reimbursement to Citv. Developer shall deposit 100% of the estimated total cost of completing and submitting the Applications for the at -grade railroad crossing to the Agencies. City shall not be required to perform any work until Developer has deposited such money with City. City shall keep the money deposited in a separate non-interest bearing account. When City has depleted the funds in the account, City shall immediately notify Developer of the additional funds necessary to complete the work. If Developer fails to provide additional funds to City, no further work shall be performed. The amounts reimbursed by Developer shall include all consultant and administrative costs incurred by City, including, without limitation, staff time, fees and services, which shall be reimbursed on a time and materials basis based on current City reimbursement rates. 2. Examination of Bills. Developer shall have the right to examine all invoices of consultants that are submitted to City. Once Developer has made the request to review 66943].1 the invoices from the consultant, City shall have 10 days to copy and produce such invoices for inspection by Developer. 3. Authority of City. City shall guide any consultant as to the work. If environmental or technical studies are required as a result of comments received from internal and external agencies, Developer is solely responsible for the costs of such studies. Nothing in this Agreement is meant to be a guarantee that the work contemplated herein or Developer's project will be approved or that the Applications will be issued. Further, nothing in this Agreement specifies or guarantees the timing of completion of the work contemplated herein. Indemnity. Developer agrees to defend, indemnify and hold harmless the City, its officers, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all related costs and expenses in connection therein), arising out of the performance of this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers. Amendment. This Agreement may be modified or amended only by a written document executed by both Developer and City and approved as to form by the City Attorney. 6. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder. 7. Attorney's Fees . In the event of the bringing of any action or suit by either party hereto against the other party hereunder to enforce or interpret any of the provisions, covenants or conditions of this Agreement, the prevailing party in such action or suit shall be entitled to recover all costs and expenses of suit, including reasonable attorney's fees. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Orange, California. 9. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Developer. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 10. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 11. Termination. This Agreement may be terminated by any party with thirty (30) days notice. Upon termination, Developer shall be responsible for compensation of any of 669437.1 2 consultant's services and City staff work performed up to the effective date of termination. 12. Insolvency; Receiver. Either the appointment of a receiver to take possession of all or substantially all of the assets of Developer, or a general assignment by Developer for the benefit of creditors, or any action taken or offered by Developer under any insolvency or bankruptcy action, will constitute a breach of this Agreement by Developer, and in such event this Agreement will automatically cease and terminate subject to Section 11 above. 13. Developer Default. Should Developer fail to perform any of its obligations under this Agreement, then City may, at its option, pursue any one or more or all of the remedies available to it under this Agreement, at law or in equity. Without limiting any other remedy which may be available to it, if Developer fails to perform any of its obligations under this Agreement, City may cease performing its obligations under this Agreement and may bring an action to recover all costs and expenses incurred by the City in completing the Studies, together with interest thereon from the date incurred at the rate of 10% per annum. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above. CITY: 66965].1 DEVELOPER: Richard D. Aschenbrenner Chief Executive Officer