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HomeMy WebLinkAbout96-15 CC Ordinance' ORDINANCE NO. 96 -15 AN ORDINANCE OF TIIE CITY COUNCIL OF TIIE CITY OF TEMECULA, CALIFORNIA, APPROVING AN AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT NO. 5 BETWEEN THE CITY OF TEMECULA AND COSTAIN HOMES, INC. FOR FINAL TRACT MAPS NO. 22916 AND 22916 -3, WITHIN SPECIFIC PLAN NO. 199 (PLANNING APPLICATION NO. PA94 -0107) TIIE CITY COUNCIL OF TIIE CITY OF TEMECULA DOES ORDAIN AS FOLLOWS: Section 1. FINDINGS. The City Council hereby finds and determines, with respect to this Agreement by and between the City of Temecula and Costain Homes, Inc. that it: A. Section 65864 .el =. of the Government Code of the State of California and Temecula City Resolution No. 91 -52 authorize the execution of agreements establishing and maintaining requirements applicable to the development of real property; and, B. In accordance with the procedure specified in said Resolution, Costain Homes, Inc. has filed with the City of Temecula an application for a Development Agreement which reflects an amendment and restatement of existing County Development Agreement No. 5 (hereinafter "Agreement "), of a residential housing subdivision on its property for Tracts 22916 and 22916 -3 (39 lots), hereinafter the "Subject Property" which application has been reviewed and accepted for filing by the Community Development Director; and, C. Notice of the City's intention to consider adoption of this Agreement with Costain Homes, Inc. has been duly given in the form and manner required by law, and the Planning Commission and City Council of said City have each conducted public hearings on June 17, 1996 (Planning Commission), and July 9, 1996 (City Council) at which time it heard and considered all evidence relevant and material to said subject. D. The Agreement is consistent with the objectives, policies, general land uses, and programs specified in the City of Temecula's General Plan in that this Agreement makes reasonable provision for the use of certain real property for residential development consistent with the General Plan's land use designation of low- medium density residential; E. The Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Subject Property referred to herein is located as this Agreement provides for residential development pursuant to a Specific Plan; Ords \96 -15 1 F. The Agreement is in conformity with the public convenience, general welfare, and good land use practice because it makes reasonable provision for a balance of land uses compatible with the remainder of the City; G. The Agreement will not be detrimental to the health, safety, or general welfare because it provides adequate assurances for the protection thereof; H. Notice of the public hearing before the Planning Commission was published in a newspaper of general circulation at least ten (10) days before the Planning Commission public hearing, and mailed or delivered at least ten (10) days prior to the hearing to the project applicant and to each agency expected to provide water, sewer, schools, police protection, and fire protection, and to all property owners within six hundred feet (600') of the property as shown on the latest equalized assessment roll; I. Notice of the public hearing before the Planning Commission included the date, time, and place of the public hearing, the identity of the hearing body, a general explanation of the matter to be considered, a general description in text or diagram of the location of the real property that is the subject of the hearing, and of the need to exhaust administrative remedies; J. Notice of the public hearing before the City Council was published in a newspaper of general circulation at least ten (10) days prior to the City Council public hearing, mailed at least ten (10) days prior to the hearing to the project applicant, to each agency expected to provide water, sewer, schools, police protection, and fire protection, and to all property owners within six hundred feet (600') of the property as shown on the latest equalized assessment roll; K. Notice of the City Council hearing included the date, the time, and place of the public hearing, the identity of the hearing body, the general explanation of the matter to be considered, a general description in text or by diagram of the location of the Property that is the subject of the hearing, and the notice of the need to exhaust administrative remedies; L. City Council approved this Agreement by Ordinance based upon evidence and findings of the Planning Commission and new evidence presented at its hearing on this Agreement, giving its reasons therefor and setting their relationship between this Agreement and the General Plan; M. The benefits that will accrue to the people of the City of Temecula from this legislation and this Agreement are as follows: Ords \96 -15 1. Generation of municipal revenue; Construction of public infrastructure facilities; 3. Acceleration of both the timely development of subject property as well as the payment of municipal revenue; 4. Enhancement of quality of life for surrounding residents with the timely development through the elimination of dust and nuisance of partially improved lots; and 5. Payment of Public Facility Fees (fire, library, traffic signal mitigation, development and RSA). Section 2. APPROVAL. This Agreement, attached hereto and incorporated herein by this reference as Attachment "1" is hereby approved. The Mayor is authorized and directed to evidence such approval by executing this Agreement for, and in the name of, the City of Temecula; and the City Clerk is directed to attest thereto. Section 3. SEVERABILITY. The City Council hereby declares that the provisions of this Ordinance are severable and if for any reason a court of competent jurisdiction shall hold any sentence, paragraph, or section of this Ordinance to be invalid, such decision shall not affect the validity of the remaining parts of this Ordinance. Section 4. This Ordinance shall be in full force and effect thirty (30) days after its passage. The City Clerk shall certify to the adoption of this Ordinance. The City Clerk shall publish a summary of this Ordinance and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five days prior to the adoption of this Ordinance. Within 15 days from adoption of this Ordinance, the City Clerk shall publish a summary of this Ordinance, together with the names of the Councilmembers voting for and against the Ordinance, and post the same in the office of the City Clerk. Section 5. PASSED, APPROVED AND ADOPTED this 23rd day of July, 1996. ATTEST: J Greek, CMC City Clerk ' [SEAL] Ords \96 -15 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) CITY OF TEMECULA) I, June S. Greek, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 96 -15 was duly introduced and placed upon its first reading at a regular meeting of the City Council on the 9th day of July, 1996, and that thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City Council on the 23rd day of July 1996, by the following vote, to wit: AYES: 3 COUNCILMEMBERS: Birdsall, Ford, Lindemans NOES: 0 COUNCILMEMBERS: None ABSENT: 2 COUNCILMEMBERS: Roberts, Stone Ords \96 -15 4 Ju . Greek, CMC City Clerk ' RECORDED AT THE REQUEST OF City Clerk City of Temecula WHEN RECORDED RETURN TO City Clerk City of Temecula 43174 Business Park Drive Temecula CA 92590 (Space Above Line For Recorder's Use) AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT LWOC11<6e66.7 SPECIFIC PLAN NO. 199 PLANNING AREA NO. 16 PLANNING APPLICATION NO. Margarita Village" Costain Homes Inc. IEXHIBITS EXHIBIT A EXISTING DEVELOPMENT APPROVALS EXHIBIT B EXISTING LAND USE REGULATIONS EXHIBIT C LEGAL DESCRIPTION EXHIBIT D NOTICE FROM MORTGAGEE LWOCM46466.7 ' AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT BETWEEN CITY OF TEMECULA and COSTAIN HOMES INC., a Delaware corporation This Amendment and Restatement of Development Agreement ( "Agreement ") is entered into to be effective on the date set forth in Recital N and Paragraph 1.7 by and among the City of Temecula, a California municipal corporation ( "City"), and Costain Homes Inc., a Delaware corporation ( "Owner "): RECITALS A. Pursuant to California Government Code Sections 65864 et seq. ( "Development Agreement Statutes "), Tayco, a California general partnership, and others and the County of IRiverside, California ( "County") entered into Development Agreement No. 5 recorded in the Official Records of Riverside County, California on November 7, 1988, as Instrument No. 325515 ( "Development Agreement No. 5 "). B. Development Agreement No. 5 encompasses a project formerly located within County approved Specific Plan No. 199 known as "Margarita Village ", a mixed use subdivision (the "Original Project ") to be developed on property which came within the municipal boundaries of City when City incorporated on December 1, 1989. This Agreement encompasses only a portion of the Original Project, located in Planning Area No. 16 and consisting of Tract Nos. 22916 and 22916 -3, a residential development (the 'Project "). The balance of the Original Project covered by Development Agreement No. 5 is not included within Planning Area No. 16 and is not amended or impacted by this Agreement. Owner is the successor -in- interest of Tayco Iwith respect to the Project. LWOC1146666] 1 ' C. Pursuant to the provisions of the Development Agreement Statutes, City became the successor -in- interest to the County under Development Agreement No. 5 upon incorporation of City. D. Pursuant to Section 65868 of the Development Agreement Statutes, City and Owner propose to restate and amend Development Agreement No. 5 to substitute this Agreement for the portion of Development Agreement No. 5 pertaining to the Project. E. Pursuant and subject to the Development Agreement Statutes, City's police powers and City Resolution No. 91 -52, City is authorized to enter into binding agreements with persons having legal or equitable interests in real property located within City's municipal boundaries or sphere of influence thereby establishing the conditions under which such property may be developed in City. ' F. By electing to enter into this Agreement, City shall bind future Members of the City Council of City by the obligations specified herein and further limit the future exercise of certain governmental and proprietary powers of Members of the City Council. Likewise, Owner shall bind its successors in interest to the obligations specified in this Agreement. G. The tetras and conditions of this Agreement have undergone extensive review by the staff of City, the Planning Commission of City and the City Council of City and have been found to be fair, just and reasonable. H. City finds and determines that it will be in the best interests of its citizens and the public health, safety and welfare will be served by entering into this Agreement. 1. All of the procedures and requirements of the California Environmental Quality Act have been met with respect to this Agreement. LWOCIN6466.7 2 J. Riverside County Ordinance No. 659, as adopted by City, establishes public facilities impact fees for residential development within City ( "RSA Fees "). City requires these revenues to mitigate the impact of development. City requires the RSA Fees from development of Property in order to complete capital projects to mitigate the impact of the development. K. Development Agreement No. 5 provided for public facilities and services impact fees ( "County Impact Fees ") higher than the RSA Fees. These higher fees, particularly during the present economic situation, unduly discourage and delay development and thereby prevent City from ever receiving the County Impact Fees or the RSA Fees. Consequently, City desires to reduce the County Impact Fees for residential development in the Project to a level comparable to the RSA Fees. L. City and Owner acknowledge that development of the Project will result in the generation of municipal revenue, public infrastructure facilities and the enhancement of the quality of life for present and future residents of City. The benefits to City and Owner contemplated by development of the Project include: (1) completion of vacant lots in the Project; (2) payment of traffic signal mitigation fees, fire mitigation fees, drainage fees, school impact fees and library fees; and (3) participation in special assessment districts to finance City and regional infrastructure improvements. M. City and Owner acknowledge that due to the present economic situation, none of these benefits to City are possible unless the Project proceeds with development. N. The City Council of City has approved this Agreement by Ordinance No. ' adopted on and effective on ( "Effective LWOC 146466.7 3 ' Date "). On the Effective Date, Development Agreement No. 5 shall be terminated as to the Project only and of no further force and effect with respect to the Project, having been replaced by this Agreement. NOW, THEREFORE in consideration of the above Recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and incorporated herein, the parties agree: 1. Definitions. In this Agreement, unless the context otherwise requires, the following words and phrases shall have the meaning set forth below: 1.1 "City" is the City of Temecula. 1.2 "City Public Facility Fee" is an amount to be established by Ordinance of City. 1.3 "County" is the County of Riverside. 1.4 "County Development Agreement Fee" means the County Development Agreement public facilities and services mitigation fee as set forth in Section 4.2 of Development Agreement No. 5. 1.5 "Development Exaction" means any requirement of City in connection with or pursuant to any Land Use Regulation or Existing Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. 1.6 "Development Plan" means the Existing Development Approvals defined in Section 1.8 below which are applicable to development of the Project. LWOC14M66.7 4 ' 1.7 "Effective Date" means the date upon which the Ordinance approving this Agreement becomes effective, which date is thirty (30) days following the date the City Council adopted such Ordinance absent a referendum challenge. 1.8 "Existing Development Approval(s)" means those certain development approvals in effect as of the Effective Date with respect to the Property, including, without limitation, the "Existing Development Approvals" listed in Exhibit A, attached hereto and incorporated herein by this reference, which were approved by the County or City. 1.9 "Financing District" means a Community Facilities District formed pursuant to the Mello -Roos Community Facilities Act of 1982 (California Government Code Sections 53311 et sea., as amended); an assessment district formed pursuant to the Landscaping and Lighting Act of 1972 (California Streets and Highways Code Sections 22500 et sea., as ' amended); a special assessment district formed pursuant to the Improvement Act of 1911 (California Streets and Highways Code Section 10102, as amended); or any other special assessment district existing pursuant to State law formed for the purposes of financing the cost of public improvements, facilities, services and /or public facilities fees within a specific geographical area of City. 1.10 "Interim Public Facilities Fee" means an amount of Three Thousand Two Hundred Dollars ($3,200.00) per each residential unit developed in the Project. 1.11 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of City, governing the development and use of land including without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction LWpC1N6466.7 5 ' standards and specifications applicable to the development of the Property, including without limitation, those listed.on Exhibit B. attached hereto and incorporated herein by this reference, which are a matter of public record on the Effective Date of this Agreement. "Land Use Regulations" does not include any County or City ordinance, resolution, code, rule, regulation, 0 or official policy, governing: (a) The conduct of businesses, professions, and occupations; (b) Taxes and assessments (as opposed to exactions); (c) The control and abatement of nuisances; (d) The granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (e) The exercise of the power of eminent domain. 1.12 "Owner" means the person having a legal or equitable interest in the Project. 1.13 "Project" is defined in Recital B above. 1.14 'Property" is the real property described in Exhibit C, attached hereto and incorporated herein by this reference. 1.15 "RSA Fee" means the fee established by County Ordinance No. _ as adopted by City. 1.16 "Subsequent Development Approvals" means all development approvals required subsequent to the Effective Date in connection with development of the Property. 1.17 "Subsequent Land Use Regulation" means any Land Use Regulation adopted and effective after the Effective Date of this Agreement. LWOC1k46W 7 6 ' 2. Interest of Owner. Owner represents that it has the fee title interest in the Property and that all other persons holding legal or equitable interests in the Property are to be bound by this Agreement. 3. Exhibits. The following documents are referred to in this Agreement attached hereto and made a part hereof by this reference: Exhibit Designation Description A Existing Development Approvals B Existing Land Use Regulations C Legal Description of the Property D Notice From Mortgagee 4. Term. ' 4.1 The term of this Agreement shall commence on the Effective Date and shall extend for a period of ten (10) years thereafter, unless this Agreement is terminated, modified or extended by circumstances set forth in this Agreement or by mutual consent of the parties hereto. 4.2 This Agreement shall terminate and be of no force and effect upon the occurrence of the entry of a final judgement or issuance of a final order after exhaustion of any appeals directed against City as a result of any lawsuit filed against City to set aside, withdraw, or abrogate the approval by the City Council of City of this Agreement. 5. Assignment. 5.1 Right to Assign. Owner shall have the right to sell, transfer, or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision ' Map Act, Government Code Sections 66410, et M., or Riverside County Ordinance No, 460, LW0C146466.7 7 ' as the same was incorporated by reference into the Temecula Municipal Code by Ordinance No. 90 -04) to any person, partnership, joint venture, firm, or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer, or assignment shall include the assignment and assumption of the rights, duties, and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent: (a) No sale, transfer, or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer, or assignment of all or a part of the Property. Owner agrees to provide specific notice of this Agreement, including the record or document number where a true and correct copy of this Agreement may be obtained from the Riverside County Recorder, in any grant deed or other documents purporting to transfer the title or any interest in the Property during the I term of this Agreement. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, Owner shall notify City, in writing, of such sale, transfer, or assignment and shall provide City with an executed agreement, in a form reasonably acceptable to the City Attorney, by the purchaser, transferee, or assignee and providing therein that the purchaser, transferee, or assignee expressly and unconditionally assumes all the duties and obligations of Owner under this Agreement to the extent applicable to the portion of the Property being acquired by the purchaser, transferee or assignee. Any sale, transfer, or assignment not made in strict compliance with the foregoing conditions shall constitute a default by Owner under this Agreement. Notwithstanding the failure of any ' purchaser, transferee, or assignee to execute the agreement required by Paragraph (b) of this LWOClN6466.7 8 ' Subsection, the burdens of this Agreement shall be binding upon such purchaser, transferee, or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee, or assignee until and unless such agreement is executed. 5.2 Release of Transferring Owner. Notwithstanding any sale, transfer, or assignment, a transferring Owner shall continue to be obligated under this Agreement unless such transferring Owner is given a release in writing by City, which release shall be provided by City upon the full satisfaction by such transferring Owner of all of the following conditions: (a) Such Owner no longer has a legal interest in all or any part of the Property except as a beneficiary under a deed of trust. (b) Such Owner is not then in default under this Agreement. (c) Such Owner or purchaser has provided City with the notice and I executed agreement required under Paragraph (b) of Subsection 5.1 above. (d) The purchaser, transferee, or assignee provides City with security equivalent to any security previously provided by such Owner to secure performance of its obligations hereunder. (e) Such Owner has reimbursed City for any and all City costs associated with such Owner's transfer or all or a portion of the Property. 5.3 Termination of Agreement with Respect to Individual Lots upon Sale to Public and Completion of Construction. The provisions of Subsection 5.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in "bulk ") sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement except for the immediately ' succeeding sentence, this Agreement shall terminate with respect to any lot and such lot shall LWOCh4M66.7 9 ' be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions: (a) the lot has been finally subdivided and individually (and not in "bulk ") sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and (b) a Certificate of Occupancy has been issued for a building on a lot, and the fees set forth in this Agreement have been paid. Notwithstanding the foregoing or any other provisions in Development Agreement No. 5 or this Agreement to the contrary , City agrees that Owner's previous payment of the fees set forth in this Agreement with respect to those portions of the Project which have been previously released from Development Agreement No. 5 shall be deemed to satisfy the provisions of Development Agreement No. 5 and this Agreement with respect to such portions of the Project as if such portions of the Project were a part of the Property. ' 5.4 Subsequent Assignment. Any subsequent sale, transfer, or assignment after an initial sale, transfer, or assignment shall be made only in accordance with and subject to the terms and conditions of this Section. 6. Mortgagee Protection. The parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust, or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the r,wociw�1 10 ' intent and purposes of this Agreement. Owner shall reimburse City for any and all of City's reasonable costs associated with said negotiations, interpretations, and modifications and shall make reimbursement payments to City within thirty (30) days of receipt of an invoice from City. Any Mortgagee of the Property shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee has submitted a request in writing, in the form as attached hereto and incorporated herein by this reference as Exhibit D, to City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Owner in the performance of Owner's obligations under this Agreement. (c) If City timely receives a request from a Mortgagee, in the form set forth on Exhibit D, requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall endeavor to provide a copy of that notice of default to the Mortgagee within ten (10) days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. City shall have no liability for damages or otherwise to Owner, Owner's successor or to any Mortgagee or successor thereof for the failure to provide such notice. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. LWOd W6"6J 11 ' Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Owner's obligations or other affirmative covenants of Owner hereunder, or to guarantee such performance, provided however, that to the extent that any covenant to be performed by Owner is a condition precedent to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 5.1 of this Agreement. The term of this Agreement shall not be extended based on the fact that a Mortgagee holds title to the Property for all or any part of the term of this Agreement. (e) Any Mortgagee who comes into possession of the Property, or any portion thereof, pursuant to subsection (d) above and who elects not to assume the obligations of Owner ' set forth herein shall not be entitled to any rights to develop which have or may have vested solely as a result of this Agreement. 7. Binding Effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the successors -in- interest to the parties to it in accordance with the provisions of and subject to the limitations of this Agreement. 8. Proiect As A Private Undertaking /Relationship of Parties. It is specifically understood and agreed between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that LWOCIuN .7 12 ' of a governmental entity regulating the development of private property and the owner of such property. 9. Changes in Project. No change, modification, revision or alteration of Existing Development Approvals may be made without the prior approval by those agencies of City equivalent to the County agencies that approved the Existing Development Approvals in the first instance (if the County had granted the approvals) or by the same City agency that granted the Existing Development Approvals (if City granted the approval in connection with the adoption of this Agreement). City may expand the permitted uses for the Property without amending this Agreement so long as Owner or Owner's successor retains his /her /their existing entitlements and approves such expansion in writing. 10. Timing of Development. The parties acknowledge that Owner cannot at this time ' predict when, or the rate at which, the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties, it is the parties' intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop the Property in such order, at such rate, and at such times as Owner deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan. LWOCIW6466.7 13 ' 11. Indemnity and Cost of Liti ag tion. 11.1 Hold Harmless. Owner agrees to and shall hold City, its officers, agents, employees and representatives harmless from liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of Owner or those of its contractor, subcontractor, agent, employee or other person acting on its behalf which relate to the Project. Owner agrees to and shall indemnify, defend, and hold harmless the City and its officers, agents, employees and representatives from actions for damages caused or alleged to have been caused by reason of Owner's activities in connection with the Project. This hold harmless agreement applies to all of the damages and claims for damages suffered or alleged to have been suffered by reason of the operations referred to in this paragraph, regardless of whether or not City prepared, ' supplied, or approved plans or specifications for the Project. 11.2 County Litigation Concerning Agreement. In the event the County seeks to challenge the right of City and Owner to enter into this Agreement or to terminate the applicable portion of Development Agreement No. 5, and institutes an action, suit or proceeding to challenge this Agreement or invalidate and /or enjoin the enforcement of this Agreement or the termination of the applicable portion of Development Agreement No. 5, City and Owner agree to cooperate and participate in a joint defense in any action against the parties, their officers, agents and employees, from and against any and all such obligations, liability, suit, claim, loss, judgment or lien, resulting from such action(s) brought by County (but excluding actions to expunge any lis pendens) and to share the costs associated with attorneys' fees and costs that the parties may incur as the result of any such action or lawsuit to challenge City Iand /or Owner's legal authority to enter into this Agreement and /or terminate the applicable LwOC1U6466J 14 portion of Development Agreement No. 5. If the County action is against more than one impacted development for which City has lowered the otherwise applicable County fees, then Owner's defense costs herein shall be its pro rata share among all impacted landowners based on a ratio of contribution of the total units owned by Owner which are subject to this Agreement compared to the total number of units within City in which City has lowered the County fees included in such challenge. If the County action is only against Owner with respect to this Agreement or the termination of the applicable portion of County Development Agreement No. 5, then Owner's defense costs shall be one hundred percent (100 %) of the attorneys' fees and costs for defense of the litigation. Damages (including the difference in the amount of the County Development Agreement Fee and any Interim Public Facilities Fee paid by Owner to City pursuant to the terms of this Agreement) shall be the responsibility of Owner. To the ' extent Owner has paid Interim Public Facilities Fees and /or County Development Agreement Fees to City of which it is adjudicated are lawfully the funds of County, City shall pay such sums to County and Owner shall have such liability for the payment of the difference between the total amount of such fees and the amount paid by Owner to City. City and Owner shall mutually agree on legal counsel to be retained to defend any such action(s) brought by the County as herein provided. City and Owner each reserve the right to withdraw from the defense of the County litigation in the event the County prevails at the trial level and there is an appeal. If either party withdraws after the trial and there is an appeal, the remaining party shall pay all of the costs and fees associated with said appeal. 11.3 Public Facilities Fees Shortfall. In the event the County prevails in any legal action or other proceeding to challenge, set aside, or enjoin the enforcement of this Agreement and the termination of the applicable portion of Development Agreement No. 5, and LWOCI146466J 15 ' a trial court determines that Owner and /or City is liable to make up any shortfall between the amount of the Interim Public Facilities Fee and the County Development Agreement Fee which would otherwise have been imposed pursuant to Development Agreement No. 5, then Owner shall be responsible for paying any such shortfall subject to City's payment to County of any amounts collected and held by City under the terms of Development Agreement No. 5. Such payment by City to County shall reduce Owner's liability to County for payment of such fees by a like amount paid by City. 11.4 County Prevails in Litigation - Severability. In the event the County prevails at the trial court level against City or Owner as described in Section 11.2 of this Agreement, the amount of the Interim Public Facilities Fee shall revert to the amount of the County Development Agreement Fee in effect at the time of entry of the final judgment in favor ' of the County (or such lesser amounts as determined by the Court). In the event this Agreement is held to be invalid or unenforceable by a trial court of competent jurisdiction, the provisions set forth in Sections 12.2 and 12.3 of this Agreement shall no longer be enforceable and from the date of said final judgment or ruling of invalidity, Owner shall thereafter pay the County Development Agreement Fee as provided in Section 4.2 of Development Agreement No. 5 (or such lesser amounts as determined by the Court). All other provisions of this Agreement shall remain valid and enforceable notwithstanding said ruling of invalidity. 11.5 Third Party Litigation Concerning Agreement. Owner shall indemnify, protect, defend, at its expense, including attorneys' fees, and hold harmless City, its agents, officers and employees from any claim, action or proceeding against City, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement brought by a third party other than the County. LWOCM46466.7 16 City shall promptly notify Owner of any such claim, action, or proceeding, and City shall cooperate in the defense. If City fails to promptly notify Owner of any such claim, action, or proceeding or if City fails to cooperate in the defense, Owner shall not thereafter be responsible to defend, protect, indemnify, or hold harmless City. City may in its discretion participate in the defense of any such claim, action, or proceeding. 11.6 Environmental Assurances. Owner shall indemnify, defend with counsel approved by City, protect, and hold harmless City, its officers, employees, agents, assigns, and any successor or successors to City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damage, punitive damages, injuries, costs, response remediation and removal costs, losses, demands. debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred, or suffered by, or asserted against, City or its officers, employees or agents arising from or attributable to any repair, cleanup, or detoxification, or preparation and implementation of any removal, remedial, response, closure, or other plan (regardless of whether undertaken due to governmental action) concerning any Hazardous Substance or hazardous wastes at any place within the Property which is the subject of this Agreement. Notwithstanding anything to the contrary contained herein, the foregoing indemnity shall not apply to any Hazardous Substance or hazardous waste which becomes located on any portion of the Property after Owner has conveyed such portion of the Property to a governmental or quasi - governmental entity or to a purchaser of a legal lot improved with a house. The foregoing indemnity is intended to operate as an agreement pursuant to Section 1 LWOC7146466.7 17 ' 107(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, "CERCLA ", 42 U.S.C. Section 9607(e) and California Health and Safety Code Section 25364, and their successor statues, to insure, protect, hold harmless, and indemnify City from liability. 12. Public Benefits Public Improvements and Facilities. 12.1 Intent. The parties acknowledge and agree that this Agreement confers private benefits on Owner which should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on Owner by providing more fully for the satisfaction of the public needs resulting from development of the Project. 12.2 Public Facilities Fees (Residential). (a) In lieu of the County Development Agreement Fee, any other fee ' required by Development Agreement No. 5, the RSA Fee or City Public Facility Fee (or any fee which replaces, supplements or is for the same general purpose as any of the foregoing), for a period of five (5) years commencing on the Effective Date, Owner shall pay an Interim Public Facilities Fee of Three Thousand Two Hundred Dollars ($3,200.00) per dwelling unit. The Interim Public Facilities Fee shall be paid as provided in Section 12.3 below. At the conclusion of the five (5) year period, Owner shall either continue to pay the Interim Public Facilities Fee of Three Thousand Two Hundred Dollars ($3,200.00) per dwelling unit or such other public facilities fee as City has then enacted and applied to residential development projects in City. Owner expressly acknowledges the existence and holding in the case of Kaufman and Broad Central Valley. Inc. v. City of Modesto, (1994), 25 Cal.App.4th 1577, as it applies to later adopted fees. Owner hereby waives for itself, and for any successor thereto, the right to ' challenge, pursuant to this Agreement, the validity or amount of any such other public facilities LWOC1u6"6.7 18 ' fees which are enacted and applied to residential development projects in City; provided that such waiver only applies to the Project after the first five (5) years of this Agreement. Owner acknowledges and agrees that City would not have entered into this Agreement if its application or operation would limit in any way City's ability to develop and apply a Comprehensive Public Facilities Fee Program to this Project following the first five (5) years of the term of this Agreement. Finally, Owner agrees that the institution of any legal action by Owner, or any successor thereof, relying on this Agreement to challenge the validity, amount, or application of any public facilities fee after the first five (5) years of this Agreement, including paying such fees "under protest" pursuant to Government Code Sections 66020 et sea., shall constitute a material breach and default under this Agreement entitling City to summary termination thereof. (b) Owner shall also pay all other customary and typical development ' exactions, for a Project of this size and nature, in existence as of the Effective Date and throughout the term of this Agreement, including but not limited to, Traffic Signal Mitigation Fees, fire mitigation fees, drainage fees, school impact fees and library fees pursuant to the provisions of City ordinances and resolutions in existence when paid. 12.3 Timine. Collection of any and all Interim Public Facilities Fees required to be paid by Owner pursuant to this Agreement shall be deferred until such time as a certificate of occupancy has been obtained for the first production home built on the Property. Thereafter, the Interim Public Facilities Fees shall be paid at the time of issuance of building permits for each residential unit constructed on the Property. 12.4 Public Works. If Owner is required by this Agreement, or any other obligation, to construct any public works facilities which will be dedicated to City or any other ' public agency upon completion, and if required by applicable laws to do so, Owner shall LWGCM6466.7 19 ' perform such work in the same manner and subject to the same requirements as would be applicable to City or such other public agency should it have undertaken such construction. 13. Reservations of Authori ty. 13.1 Limitations. Reservations, and Exceotions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Property: (a) Processing fees and charges imposed by City to cover the estimated actual costs to City of processing applications for Subsequent Development Approvals. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure. ' (c) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exactions shall be applicable to development of the Property unless such Development Exactions are applied uniformly to development throughout City. No such subsequently adopted Development Exaction would apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. If any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees paid by Owner pursuant to this Agreement, City shall allow a credit against such subsequently adopted Development Exaction for such fees paid to the extent such fees fulfill the same purpose. LWOCP46466.7 20 I(d) Regulations governing construction standards and specifications including without limitation, City's Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code. (e) Regulations which are not in conflict with the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property. (f) Regulations which are in conflict with the Development Plan provided Owner has given written consent to the application of such regulations to development of the Property. 13.2 Subsequent Development Approvals. This Agreement shall not prevent ' City, in acting on Subsequent Development Approvals, from applying the Subsequent land Use Regulations which do not conflict with the Development Plan, nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing or Subsequent Land Use Regulations not in conflict with the Development Plan. 13.3 Modification or Suspension by State or Federal Law. 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 of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. LWOC146466.7 21 ' 13.4 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of City possess authority to regulate aspects of the development of the Property separately from or jointly with City and this Agreement does not limit the authority of such other public agencies. 13.5 Tentative Tract Man Extension. Pursuant to the provisions of Section 66452.6 of the Government Code, the tentative subdivision map(s) or tentative parcel map(s) (vested or regular) approved as part of implementing the Development Plan shall be extended to expire at the end of the term of this Agreement. 13.6 Vestine Tentative Mans. If any tentative or final subdivision map, or tentative or final parcel map, heretofore or hereafter approved in connection with development of the Property, is a vesting map under the Subdivision Map Act (Government Code Sections ' 66410, et se q). and Riverside County Ordinance No. 460, as the same was incorporated by reference into the Temecula Municipal Code by Ordinance No. 90 -04, and if this Agreement is 1 determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to develop to Owner, then and to that extent the rights, obligations, and protections afforded Owner and City respectively, under the laws and ordinances applicable to vesting maps shall supersede the provisions of this Agreement. Except as set forth immediately above, development of the Property shall occur only as provided in this Agreement, and the provisions in this Agreement shall be controlling over conflicting provisions of law or ordinances concerning vesting maps. LWOC IN6166 .7 22 ' 13.7 Intent. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority which cannot be restricted by contact. No. 5. 14. Development of the Property. Vesting. Termination of Development Agreement 14.1 Rights to Develop. Subject to terms of this Agreement, including payment of the Interim Public Facilities Fee, Owner shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by ' the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan. In exchange for the vested right to develop pursuant to this Agreement, Owner expressly waives for itself and for any successor thereto, the right to challenge or contest the validity of any condition of approval attached to any entitlement which is a part of the Development Plan. 14.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, including the payment of the Interim Public Facilities Fee, the rules, regulations, and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of Iproposed buildings, and the design, improvement and construction standards and specifications LWOC14&66.7 23 ' applicable to development of the Property shall be the Existing Land Use Regulations. City shall exercise its lawful reasonable discretion in connection with Subsequent Development Approvals in accordance with the Development Plan, and as provided by this Agreement including, but not limited to, payment of the Interim Public Facilities Fee. City shall accept for processing, review, and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters. City may, at the request of Owner, contract for planning and engineering consultant services to expedite the review and processing of Subsequent Development Approvals, the cost of which shall be borne by Owner. 14.3 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event Owner finds that a change in the Existing Development Approvals is necessary or appropriate, Owner shall apply for a Subsequent Development Approval to effectuate such change. If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to this Agreement and may be further changed from time to time as provided in this Section. Owner, shall, within thirty (30) days of written demand by City, reimburse City for any and all reasonable costs associated with any amendment or change to this Agreement that is initiated by Owner or Owner's successor without regard to the outcome of the request for amendment or change to this Agreement. Unless otherwise required by law, as determined in City's reasonable discretion, a change to the Existing Development Approvals shall be deemed "minor" and not require an amendment to this Agreement provided ' such change does not: LWOCIV606.7 24 (a) Alter the permitted uses of the Property as a whole, except as permitted in Section 9 hereof; or, (b) Increase the density or intensity of use of the Property as a whole; or, (c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or, (e) Constitute a project requiring a subsequent or a supplemental Environmental Impact Report pursuant to Section 21166 of the Public Resources Code. 14.4 Termination of Development Agreement No. 5. Both City and Owner agree that on the Effective Date of this Agreement, Development Agreement No. 5 shall be terminated and of no further force or effect as to this Project only, having been ' replaced by this Agreement. 15. Periodic Review of Compliance with Agreement. 15.1 Review. Pursuant to City Resolution No. 91 -52, as it may be subsequently amended, City shall review this Agreement at least once during every twelve (12) month period from the Effective Date of this Agreement. Owner or its successor shall reimburse City for the reasonable and necessary costs of this review, within thirty (30) days of written demand from City. 15.2 Compliance. During each periodic review by City, Owner is required to demonstrate good faith compliance with the terms of the Agreement. Owner agrees to furnish such evidence of good faith compliance as City in the exercise of its discretion may require. 16. Financing District. Upon the request of Owner, the parties shall cooperate in ' exploring the use of special assessment districts, community facilities districts and other similar LWOCIN6e66.7 25 financing districts for the financing of the construction, improvement, or acquisition of public infrastructure, facilities, lands, and improvements to serve the Project and its residents, whether located within or outside the Property. It is acknowledged that nothing contained in this Agreement shall be construed as requiring City or the City Council to form such a district or to issue or sell bonds. 17. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the parties and in the manner provided for in Government Code Sections 65868, 65867 and 65867.5. If an Amendment is requested by Owner or its successor, Owner or its successor agrees to pay City any Development Agreement Amendment fee then in existence as established by City Council Resolution, or if no such fee is established, to reimburse City for the actual and reasonably necessary costs of reviewing and processing said Amendment within thirty (30) days of written demand from City without regard to City's action on such amendment. 18. Enforcement. Unless amended or canceled as herein provided, this Agreement is enforceable by any party to it notwithstanding a change in the applicable general or specific plan, zoning, subdivision, or building regulations adopted by City which alter or amend the rules, regulations, or policies governing permitted uses of the land, density, design, improvement, and construction standards and specifications. 19. Events of Default. Owner is in default under this Agreement upon the happening of one or more of the following events or conditions: (a) If a warranty, representation or statement made or furnished by Owner to City in this Agreement is false or proves to have been false in any material respect when it was made; LWOCIW6W.7 26 (b) More than thirty (30) days have passed since City's making of a written request to Owner for payment or reimbursement for a fee or service authorized or agreed to pursuant to this Agreement, with Owner not having made such payment; (c) A finding and determination by City at a hearing at which Owner is provided an opportunity to present oral and written testimony that upon the basis of substantial evidence Owner has not complied in good faith with one or more of the terms or conditions of this Agreement; provided, however, where the default may be cured, Owner shall be given at least thirty (30) days or such additional time as the City Council determines to be reasonable to cure such default. If the actions required to cure such default will reasonably take more than thirty (30) days to cure, then the City Council shall give Owner such additional time as is reasonably necessary to effect a cure, provided that Owner is making reasonable progress ' towards completing such cure. Such progress on effectuating such cure shall be reviewed by the City Council every thirty (30) days thereafter until any and all defaults are cured. If at any such review, the City Council determines that the Owner is not making good faith efforts to cure 0 any and all defaults, the City Council shall have the authority to terminate this Agreement. If at the end of such cure period, Owner fails to cure any and all defaults, then the City Council may terminate this Agreement, extend the cure period if Owner is making good faith efforts to cure any and all defaults, or with the concurrence of Owner, modify this Agreement. 20. Procedure Upon Default. (a) Upon the occurrence of an event of default, City may terminate or modify this Agreement in accordance with the procedure adopted by City. (b) City does not waive any claim of defect in performance by Owner implied if on periodic review City does not propose to modify or terminate this Agreement. LWOCI \46466.7 27 I(c) Non - performance shall not be excused because of a failure of a third person. (d) Non - performance shall be excused only when it is prevented or delayed by acts of God or an emergency declared by the Governor. (e) All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements are available to the parties to pursue in the event there is a breach. 21. Damages Upon Termination. It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof. Owner, for itself or any successor thereto, expressly waives the right to seek damages against City or any officer, employee, or agent thereof, for any I default or breach of this Agreement. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that City, and its officers. employees and agents, shall not be liable in damages to Owner or to any assignee or transferee of Owner, or any other person, and Owner covenants not to sue for or claim any damages for breach of this Agreement by City. 22. SKcific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non - monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons: (a) Money damages are unavailable against City as provided in Section 21 ' above. LWOC146M6J 28 I(b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural 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 or portions thereof. 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 is not possible to determine the sum of money which would adequately compensate Owner for such efforts. 23. Attorneys' Fees and Costs. If legal action by either party is brought because of breach of this Agreement or to enforce a provision of this Agreement, the prevailing party is entitled to reasonable attorneys fees and court costs. ' 24. Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid and presumed delivered upon actual receipt by personal delivery or within three (3) days following deposit thereof in United States Mail. Notice required to be given to City shall be addressed as follows: To City: City of Temecula 43174 Business Park Drive Temecula, CA 92590 Attention: City Attorney With a copy to: Peter M. Thorson, Esq. City Attorney Burke, Williams & Sorensen 611 W. Sixth Street, Suite 2500 Los Angeles, CA 90017 Lw0C1\4M6 7 29 ' Notices required to be given to Owner shall be addressed as follows: To Owner: Costain Homes Inc. 620 Newport Center Drive Suite 400 Newport Beach, CA 92660 Attu: Julie Hill With a copy to: Latham & Watkins 650 Town Center Drive Twentieth Floor Costa Mesa, CA 92656 Attn: Kenneth A. Wolfson, Esq. A party may change the address by giving notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. 25. Cooperation. City agrees that it shall accept for processing and promptly take action on all applications, provided they are in a proper form and acceptable for required ' processing, for discretionary permits, tract or parcel maps, or other land use entitlement for development of the Project in accordance with the provisions of this Agreement. City shall cooperate with Owner in providing expeditious review of any such applications, permits, or land use entitlement and, upon request and payment of any costs and /or extra fees associated therewith by Owner, City shall assign to the Project planner(s), building inspector(s), and /or other staff personnel as required to insure the timely processing and completion of the Project. 26. Rules of Construction and Miscellaneous Terms. (a) The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. (b) If there is more than one signer of this Agreement their obligations are joint and several. UYOCH46MM6 7 30 ' (c) The time limits set forth in this Agreement may be extended by mutual written consent of the parties in accordance with the procedures for adoption of this Agreement. (d) This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person, including but not limited to third party beneficiaries, shall have any right of action based upon any provision of this Agreement. 27. Entire Agreement. This Agreement and the exhibits hereto contain the complete, final, entire, and exclusive expression of the agreement between the parties hereto, and is intended by the parties to completely state the agreement in full. Any agreement or representation respecting the matters dealt with herein or the duties of any party in relation ' thereto not expressly set forth in this Agreement shall be null and void. 28. Counterparts. This Agreement may be executed in multiple counterparts, each of which so fully executed counterpart shall be deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterpart executed by the other party to this Agreement is in the physical possession of the party seeking enforcement thereof. 29. Authority to Execute. Each party hereto expressly warrants and represents that he /she /they has /have the authority to execute this Agreement on behalf of his /her /their corporation, partnership, business entity, or governmental entity and warrants and represents that he /she /they has /have the authority to bind his /her /their entity to the performance of its obligations hereunder. twoctu606.7 31 ' IN WITNESS WHEREOF this Agreement has been executed by the authorized representatives of the parties hereto. Attest: June S. Greek, City Clerk Approved as to form: Peter M. Thorson, City Attorney LWOCIN6"6.7 32 "City " City of Temecula By: Jeffrey E. Stone, Mayor "Owner" Costain Homes Inc., a Delawa oration � e By: t— lie Hill (typed name) Its President, CEO (title) / Brent C. Anderson (typed name) Its: CFO, Vice President (title) I STATE OF CALIFORNIA ) ss. COUNTY OF me ) On vy 09 141; �— before me, 2 hc5 -D a notary public in and fo} said State, personally appeared --T, �- I-k personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)G)are subscribed to the within instrument and acknowledged to me that heAgfi-e'Ahey executed the same in his er eir authorized capacity(ies), and that by hi `r/ eir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. DEBORAH. S. BROWN WITNESS m hand and official seal. rt , Con +M. N 1oos122 ; y f . N., . c NOTARY PUSS - CALIFORNIA � t� ..zw My CMM.. Emm D,. 13, 1Y97 Signature `` {1� /�•�•� (Sea STATE OF CALIFORNIA ) ) ss. COUNTY OFQ(��„C ) �1 On j � (c -,'Gtv before me,`�.2��,L.S��,�,� , a notary public in and fo� said State, personally appeared personally known to meAK proved to me on the basis of satisfactory evidence) to be the perso s) whose name(s)4§/Are subscribed to the within instrument and acknowledged to me b;Ahe /they executed the same in tis er/their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of whic _ the person(s) acted, executed the instrument. DEBORAH S. BROWN ; COMM. # 1009122 WITNESS my hand and official seal. o ti NOTARY PUBLIC- CALIFORNIA o ORANGE COIRnY My Comm. E&t jms Ox. 13. 1907 Signatur:bukB -. . C .1 (Seal) LWOC1146466.7 33 IowuNoe5975.1 Exhibit A: Existing Development Approvals General Plan: Low Medium Density Residential (3 -6 dwelling unitslacre) Specific Plan: Ordinance No. 460, Specific Plan No. 199 (Margarita Village), City of Temecula Development Code (as of 2/9/96) Development Agreement: Development Agreement No. 5 Land Divisions: Final Map No. 22916 and Final Map No. 22916 -3 EXHIBIT B: EXISTING LAND USE REGULATIONS ' inance No. 348.2922 nance No. 460.93 Riverside County General Plan R:ISTAFFRM107PA94.PC 617196k16 EXHIBIT C - LEGAL DESCRIPTION ' Lots 1 through 13, inclusive, and 66 through 76, inclusive, of Tract 22916 -3, recorded in Book 225, Pages 57 - 64, Riverside County Records. Lots 56 through 66, inclusive, of Tract 22916, recorded in Book 225, Pages 65 -72, Riverside County Records. IEXHIBIT D REQUEST FOR NOTICE OF DEFAULT UNDER DEVELOPMENT AGREEMENT Amendment and Restatement of Development Agreemen Plannine ADDlieation No To: City Clerk and Community Development Director, City of Temecula Pursuant to Section 6(b) and (c) of the above- referenced Amendment and Restatement of Development Agreement, request is hereby made by as Mortgagee for the property (or portion thereof) to receive copies of any Notice of Default issued by City against Owner in accordance with the terms and conditions of such Amendment and Restatement of Development Agreement. Copies of any such Notices should be mailed to the following address: ' (Mortgagee) (Person /Department) (Address) (City/State/Zip) (Telephone No.) A copy of this Notice should be filed with the project file to insure proper and timely notice is given. Under the terms of said Amendment and Restatement of Development Agreement, as Mortgagee is entitled to receive copies of any Notice of Default within ten (10) days of sending any such Notice to Owner. Failure to send any such Notice may have serious legal consequences for the Citv. This request is to remain in effect until revoked by as Mortgagee or the Amendment and Restatement of Development Agreement is terminated. The person executing this document on behalf of said Mortgagee warrants and represents that the entity he/she represents is a bonafide Mortgagee of said property and is entitled to receive copies of Notices of Default under said Amendment and Restatement of Development Agreement. oc,wce4n6.1 The undersigned declares the above information is true and correct under the penalty of perjury under the laws of the State of California. Dated: _, 1995. MORTGAGEE By: (signature) (printed name) Its: (title) [Notary required] ' This Notice is to be sent to both the City Clerk and Community Development Director for the City of Temecula at 43174 Business Park Drive, Temecula, CA 92590 or such other location as Temecula City Hall may be located in the future. owwaPAS76.1 -2-