HomeMy WebLinkAbout96-24 CC Ordinance' ORDINANCE NO. 96-24
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TEMECULA, CALIFORNIA APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF TEMECULA, FOREST
CITY DEVELOPMENT CALIFORNIA INC., AND LGA -7, INC.,
FOR APPROXIMATELY 179 ACRES LOCATED AT THE
SOUTHEAST CORNER OF WINCHESTER ROAD AND YNEZ
ROAD (PLANNING APPLICATION NO. PA96 -0333)
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN
AS FOLLOWS:
Section 1. The City Council hereby finds determines, and declares as follows:
a. Section 65864 fA =. of the Government Code of the State of California
and Temecula City Resolution No. 91 -52 authorize the execution of development
agreements establishing and maintaining requirements applicable to the development of
real property;
' b. In accordance with the procedure specified in said statutes and
Resolution, Forest City Development California, Inc. ( "Developer ") and LGA -7, Inc.
( "Owner ") have jointly filed with the City of Temecula an application for a
Development Agreement ( "Development Agreement ") for approximately 179 acres
located at the southeast corner of Winchester Road and Ynez Road ( "Property ") for a
regional mall and retail commercial uses consistent with Specific Plan No. 263, which
application has been reviewed and accepted for filing by the Community Development
Director;
C. Notice of the City's intention to consider adoption of the Development
Agreement and to consider the findings under the California Environmental Quality Act
that a Supplemental EIR or Subsequent EIR is not required has been duly given in the
form and manner required by law for both the public hearing before the Planning
Commission and the public hearing before the City Council;
(1) Notice of the public hearings before the Planning Commission
and City Council was published in a newspaper of general circulation at least
ten (10) days before the public hearings, and mailed or delivered at least ten
(10) days prior to the hearings to the project applicants 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;
' (2) Notice of the public hearings before the Planning Commission
and City Council 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 notice of the need to exhaust
administrative remedies;
d. The Planning Commission conducted a duly noticed public hearing on
the Development Agreement on December 16, 1996 at which time the Planning
Commission heard and considered all of the written material and oral comments
presented to it on the proposed environmental findings and the proposed Development
Agreement;
e. The City Council conducted a duly noticed public hearing on the
Development Agreement on December 17, 1996 at which time the City Council heard
and considered all of the written material and oral comments presented to it on the
proposed environmental findings and the proposed Development Agreement;
Section 2. The City Council of the City of Temecula further finds,
determines and declares that:
' a. The Development Agreement is consistent with the objectives, policies,
general land uses, and programs specified in the City of Temecula's General Plan in
that:
(1) The Development Agreement makes reasonable provision for the
use of the Property for commercial development consistent with the General
Plan's land use designation of Community Commercial, Professional Office and
Public /Institutional Facilities for the Property which provide for commercial
development;
(2) The Development Agreement and development on the Property
will provide for the creation of jobs within the City, enhance the balance of
housing and jobs within the City as provided in the Growth Management/Public
Facility, Land Use, and Economic Development Elements of the General Plan;
b. The Development Agreement is consistent with Specific Plan 263 in
which the Property is located in that:
(1) The Development Agreement provides for commercial
development pursuant to and in conformance with the terms of Specific Plan
263;
Ords \96 -24 2
' (2) The specific land uses proposed for the Project as set forth in the
Development Agreement are specifically allowed by Specific Plan No. 263;
(3) The Development Agreement provides for the actual construction
of the regional public improvements by the City as described in Specific Plan
263;
(4) The Applicable Rules set forth in the Development Agreement do
not change the provisions of the Specific Plan, but clarifies the uses to be
allowed and standards to be imposed where the Specific Plan provides for
alternatives;
C. The Development 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;
d. The Development Agreement will not be detrimental to, and in fact
enhances, the health, safety, or general welfare because it provides adequate assurances
for the protection thereof through the implementation of the Applicable Rules;
e. The City Council's approval of the Development Agreement by this
' Ordinance is based upon evidence and findings of the Planning Commission and the
evidence presented at the hearings before the Planning Commission and the City
Council on the Development Agreement;
f. The following benefits, among others, will accrue to the people of the
City of Temecula from the Development Agreement:
Ords \96 -24
(1) Generation of municipal revenue;
(2) Construction of needed 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 providing retail development necessary to serve the
community; and
(5) Payment of Public Facility Fees.
' g. By separate resolution adopted prior to this Ordinance, the City Council
has determined that environmental impacts for the commercial development described
in the Development Agreement were contemplated and fully and properly analyzed in
Environmental Impact Report No. 340, approved July 13, 1993, and the Addendum
thereto approved October 11, 1994 and that none of the findings described in Public
Resources Code Section 21166, 14 Cal. Admin. Code Sections 15162 or 15163
requiring a subsequent environmental impact report for the Development Agreement
exist.
Section 3. The Development Agreement is hereby approved in substantially the
form attached and incorporated herein by this reference as Exhibit A. The Mayor is hereby
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 4. The City Clerk shall certify to the adoption of this Ordinance and
shall cause the same to be posted as required by law.
PASSED, APPROVED AND ADOPTED this 23th day of December, 1996.
Imans, Giayor
ATTEST:
J n . Greek, CMC
City Clerk
[SEAL]
Ords \96 -24
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, June S. Greek, City Clerk of the City of Temecula, do hereby certify that the
foregoing Ordinance No. 96 -24 was duly introduced and placed upon its first reading at a
regular meeting of the City Council on the 17th day of December, 1996, and that thereafter,
said Ordinance was duly adopted and passed at a regular meeting of the City Council on the
23rd day of December 1996, the following vote, to wit:
AYES: 5 COUNCILMEMBERS: Birdsall, Ford, Roberts, Stone,
Lindemans
NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
' Jun S. eek, CMC
City Clerk
Ords \96 -24 5
EXEMPT FROM RECORDER'S FEES
Pursuant to Government
Code §§ 6103, 27383
Recording Requested By
and When Recorded Return to:
CITY CLERK CITY OF TEMECULA
43200 Business Park Drive
Temecula, CA 92590 -3606
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF TEMECULA,
FOREST CITY DEVELOPMENT CALIFORNIA, INC., A CALIFORNIA
CORPORATION, AND LGA -7, INC., AN ILLINOIS CORPORATION
Development Agreement
No. DV96
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE § § 65868.5
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�1
LL
TABLE OF CONTENTS
AGREEMENT
1.
Recitals
1
2.
Definitions
3
3.
Interests of Owner and Developer
4
4.
Binding Effect
4
5.
Negation of Agency
4
6.
Development Standards for the Property;
Applicable Rules
5
7.
Regional Public Improvements
7
8.
Acknowledgments, Agreements and Assurances on
the Part of the Developer
12
9.
Acknowledgments, Agreements and Assurances on
the Part of the City
13
10.
Cooperation and Implementation
15
11.
Compliance; Termination; Modifications And Amendments.
17
12.
Proceedings Upon Termination
18
13.
Modification, Amendment or Cancellation
18
14.
Operation Agreements
18
15.
Term of Agreement
19
16.
Legal Action
19
17.
Administration of Agreement and
Resolution of Disputes
20
18.
Transfers and Assignments to Parties
Other Than Owner
20
19.
Mortgage Protection
21
20.
Notices
22
21.
Severability and Termination
23
22.
Time of Essence
23
23.
Force Majeure
23
24.
Waiver
24
25.
Constructive Notice and Acceptance
24
26.
No Third Party Beneficiaries
24
27.
Attorney's Fees
24
28.
Incorporation of Exhibits
24
29.
Entire Agreement; Conflicts
25
i
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IEXHIBITS
EXHIBIT A LEGAL
Exhibit A -1 Property
Exhibit A -2 Developer's Parcels- -Mall Parcel
Exhibit A -3 Developer's Parcels- -Power Center Parcel
Exhibit A -4 Property
p:lq.\l480121.ma1
EXHIBIT B
CITY OF TEMECULA
INFRASTRUCTURE
Exhibit B-1
Street Improvements
Exhibit B-2
Traffic Signals
Exhibit B-3
Underground Power Lines
Exhibit B-4
Storm Drain Improvements
ii
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p:lq.\l480121.ma1
DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement ") is made this 17th day of
December, 1996, by and between the CITY OF TEMECULA, a general law city in the State
of California (the "City"), FOREST CITY DEVELOPMENT CALIFORNIA, INC., a
California corporation (the "Developer "), and LGA -7, INC., an Illinois Corporation (the
"Owner "). In consideration of the mutual covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
1. Recitals. This Agreement is made with respect to the following facts
and for the following purposes, each of which is acknowledged as true and correct by the
parties:
a. The City is authorized pursuant to Government Code Sections 65864
through 65869.5 (the "Development Agreement Statute ") to enter into binding
agreements with persons or entities having legal or equitable interests in real property
for the development of such property in order to establish certainty in the development
process.
b. The property which is the subject of this Development Agreement (the
"Property ") consists of approximately 179 acres. Developer is contractually entitled to
acquire from the Owner approximately 120 acres of the Property, which shall be
known as the "Developer's Parcels." The remaining approximately 59 acres will
remain owned by the Owner and shall be known as the "Owner's Parcel." The
Property is legally described on Exhibit A -1, the Developer's Parcels are legally
described on Exhibits A -2 and A -3, and the Owner's Parcel is legally described on
Exhibit A4. All such exhibits are attached to this Agreement. In the event the
Developer does not purchase the Developer's Parcels from Owner and Developer's
rights to purchase the Developer's Parcels expires or are terminated, Section 3 of this
Agreement provides that the Owner may elect to terminate this Agreement or to assume
all rights and obligations of the Developer.
C. The parties desire to enter into this Agreement in conformance with the
Development Agreement Statutes and Resolution 91 -52 of the City of Temecula in
order to achieve the development of the "Temecula Regional Center" ( "Regional
Center ") on Developer's Parcels in order to achieve the retail development of an as yet
unidentified project on the Owner's Parcel. As of the date of this Agreement, no
specific project is planned for the Owner's Parcel. The parties likewise desire to
provide land uses on the Property consistent with Specific Plan 263 and provide public
services and urban infrastructure, all in the promotion of the health, safety, and general
welfare of the residents of the City of Temecula.
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d. The development of the of the Regional Center on Developer's Parcels
includes a regional shopping mall (anchored by department stores and containing retail
shops, and other commercial uses and a separate power center), all in accordance with
the provisions of this Agreement and with Specific Plan 263 (together "Developer's
Project "). Owner's Parcel shall be allowed to develop in accordance with the
Applicable Rules described in Section 6 of this Agreement. The Developer's Project
and the terms of this Agreement are consistent with the land uses and amenities
described in Specific Plan 263. The Developer's Project will be the largest commercial
development within the City of Temecula and requires the assurances set forth in this
Development Agreement with respect to the identification of specific development
standards and requirements in order to accommodate the development of the
Developer's Parcels and the development on the Owner's Parcel.
e. On December 16, 1996, the Planning Commission of the City of
Temecula held a duly noticed public hearing on the Developer's and Owner's
application for the Development Agreement (Planning Application No. PA96- 00333)
and by Resolution No. recommended to the City Council approval of this
Agreement.
f. On December 17, 1996, the City Council of the City of Temecula held a
duly noticed public hearing on the Developer's and Owner's application for the
Development Agreement (Planning Application No. PA96- 00333) and on
, 1996 the City Council adopted Ordinance No.
approving this Agreement.
g. An environmental review has been conducted and approved for this
Agreement in accordance with the California Environmental Quality Act.
h. The City desires to obtain the binding agreement of the Developer and
Owner for the development of the Property in accordance with the provisions of this
Agreement.
i. The Developer desires to obtain the binding agreement of the City to
permit the Developer to develop the Developer's Project on the Developer's Parcels in
accordance with the "Applicable Rules" (as hereinafter defined) and this Agreement.
j. The Owner desires to obtain the binding agreement of the City to permit
the Owner to develop the Owner's Parcel in accordance with the "Applicable Rules"
(as hereinafter defined) and this Agreement.
k. Developer and Owner have applied to the City in accordance with
applicable procedures for approval of this mutually binding Agreement. The Planning
Commission and City Council of the City have given notice of intention to consider the
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Agreement, have conducted public hearings thereon pursuant to the Government Code,
and have found that the provisions of this Agreement are consistent with the Specific
Plan 263 and the City's General Plan.
1. This Agreement is consistent with the public health, safety, and welfare
needs of the residents of the City and the surrounding region. The City has specifically
considered and approved the impact and benefits of the development of the Property in
accordance with this Agreement upon the welfare of the region.
M. This Agreement will bind the City to the terms and obligations specified
in this Agreement and will limit, to the degree specified in the Agreement and under
State law, the future exercise of the City's ability to delay, postpone, preclude or
regulate development on the Property, except as provided for herein.
n. In accordance with the Development Agreement Statutes, this Agreement
eliminates uncertainty in the planning process and provides for the orderly development
of the Property. Further, this Agreement eliminates uncertainty about the validity of
exactions imposed by the City, allows installation of necessary improvements, provides
for public services necessary for the region with incidental benefits for the Property,
and generally serves the public interest within the City of Temecula and the
surrounding region.
Definitions. In this Agreement, unless the context otherwise requires:
a. "Applicable Rules" means the development standards and restrictions set
forth in Section 6 of this Agreement which shall govern the use and development of the
Property and shall amend and supersede any conflicting or inconsistent provisions of
zoning ordinances, regulations or other City requirements relating to development of
property within the City.
b. "Discretionary Actions; Discretionary Approvals" are actions which
require the exercise of judgement or a discretionary decision, and which contemplate
and authorize the imposition of revisions or additional conditions, by the City,
including any board, commission, or department of the City and any officer or
employee of the City; as opposed to actions in the process of approving or disapproving
a permit or other entitlement merely requires the City, including any board,
commission, or department of the City and any officer or employee of the City, to
determine whether there has been compliance with applicable statutes, ordinances,
regulations, or conditions of approval.
C. "Effective Date" is the date the ordinance approving this Agreement
becomes effective.
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d. "Future Approvals" means any action in implementation of development
of the Property which requires Discretionary Approvals pursuant to the Applicable
Rules, including, without limitation, parcel maps, tentative subdivision maps,
development plans, and conditional use permits. Upon approval of any of the Future
Approvals, as they may be amended from time to time, they shall become part of the
Applicable Rules, and Developer or Owner, as the case may be, shall have a "vested
right," as that term is defined under California law, in and to such Future Approvals by
virtue of this Agreement.
a. The Owner represents to the City that, as of the Effective Date, it
is the owner of the entire Property, subject to encumbrances, easements, covenants,
conditions, restrictions, and other matters of record. Owner and Developer represent
to the City that as of the Effective Date of this Agreement, Developer is contractually
entitled to acquire the Developer's Parcels.
b. In the event the Developer does not purchase the either or both
Developer's Parcels from Owner and Developer's rights to purchase either or both the
Developer's Parcels expires or terminate, Owner may, as to the property not purchased
by Developer, elect, in its discretion, to terminate this Agreement or to assume all
rights of the Developer pursuant to this Agreement for the benefit of the Owner and to
' assume all obligations of the Developer under this Agreement. Such an election shall
be effective upon written notice from the Owner to the City and Developer, in which
event Developer shall no longer be a party to this Agreement nor have any rights,
duties or obligations hereunder. The notice shall contain a representation of the Owner
to the City, that Developer has not purchased the applicable Developer's Parcels,
Developer is no longer entitled to purchase the applicable Developer's Parcels, and that
Owner elects to either terminate the Agreement as to such parcels or to assume and be
bound by of all the benefits and obligations of Developer as to such parcels as set forth
in the Agreement. If Owner elects to assume and be bound by all of the benefits and
obligations of Developer, then at such time all references in this Agreement to
Developer shall mean and include only Owner.
4. Binding Effect. This Agreement, and all of the terms and conditions of
this Agreement, shall run with the land comprising the Property and shall be binding upon and
inure to the benefit of the parties and their respective assigns, heirs, or other successors in
interest.
5. Negation of Agency. The parties acknowledge that, in entering into and
performing under this Agreement, each is acting as an independent entity and not as an agent
of the other in any respect. Nothing contained herein or in any document executed in
connection herewith shall be construed as making the City, Developer, and Owner joint
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venturers, partners, agents of the other, or employer /employee. Developer is not the agent of
the Owner. Except as otherwise set forth in Section 3.b. above, neither Owner nor Developer
shall be entitled to bind the other nor to modify this Agreement without the express written
consent of the other and nothing contained herein or in any document executed in connection
herewith shall be construed as allowing Developer or Owner to bind the other or to modify this
Agreement without the express written consent of the other. Developer and Owner each
acknowledge that this consent requirement may cause delays in modifying or amending this
Agreement and implementing the development proposed thereby.
6. Development pment Standards for the Property: Applicable Rules. The
following development standards and restrictions set forth in this Section shall govern the use
and development of the Project and the Developer's Project, Developer's Parcels, and the
Owner's Parcel and shall constitute the Applicable Rules, except as otherwise provided herein,
and shall amend and supersede any conflicting or inconsistent provisions of existing zoning
ordinances, regulations or other City requirements relating to development of Property and any
subsequent changes to the applicable Rules as specifically described in Section 9.b.:
Rules:
a_ The following ordinances and regulations shall be part of the Applicable
(1) The City's General Plan as it exists on the Effective Date;
(2) Specific Plan No. 263, as it exists on the Effective Date;
(3) The Mitigation Plan of Environmental Impact Report No. 340, as
it exists on the Effective Date;
(4) The City's Development Code, which is set forth in Title 17 of
the Temecula Municipal Code, as it exists on the Effective Date;
(5) Those portions of Riverside County Ordinance No. 348, Zoning,
adopted by the City by City Ordinance No. 90-04, which have not been
superseded by the City's Development Code;
(6) Those portions of Riverside County Ordinance No. 460,
Subdivisions, adopted by the City by City Ordinance No. 90-04, which have not
been superseded by the City's Development Code or other City Ordinances;
(7) The Uniform Building Code as adopted by the City of Temecula
and are applicable generally to structures within the City, which are in effect on
the date of issuance of building permits for structures on the Property and as
may be in effect on the date of issuance of building permits for subsequent
modifications of those structures;
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(8) Such other ordinances, rules, regulations and official policies
governing permitted uses of the Property, density, design, improvement,
development fees, and construction standards and specifications applicable to the
development of the Property in force at the time of the Effective Date, which
are not in conflict with the development standards set forth in this Section;
(9) The land uses permitted on the Developer's Parcels and the
Owner's Parcel include all of the allowable land uses permitted in Specific Plan
No. 263 or those permitted by the Planning Director (Director of Community
Development) pursuant to Paragraph a. at page 11I -56, Vol. I of Specific Plan
No. 263. The parties acknowledge and are aware of that the Planning
Commission in approving a development on the Property will apply the
standards set forth in Specific Plan 263 and are also aware of the language set
forth in Paragraph c. 1) at page III -42, Vol. I of Specific Plan 263 which
provides:
"It is important to note that not all uses allowed in Planning Area 1 are
necessarily expected to occur. For this reason, some of the above design
features may not be appropriate nor economically feasible. For this
reason, only the concept of a 'Main Street' is discussed in depth above.
Additional options for possible development in Planning Area I are
discussed in Section IV, Design Guidelines, in this Specific Plan."
b. The following development standards and procedures shall also govern
the development of the Property and shall be part of the Applicable Rules:
(1) The number of parking spaces required by the Development Code
may be reduced by the Planning Commission upon a finding that a lesser
number of parking spaces would be adequate for the Property based on the
results of a parking study utilizing generally accepted methodologies for shared
parking studies and conducted by a qualified consultant;
(2) The Director of Community Development may approve
alternatives to the lighting requirements of the Development Code, if requested
by the Developer, so long as the Director finds that the alternatives will mitigate
the light pollution to the same extent as the Development Code requirements
and the proposed lighting program is consistent with Palomar Lighting District
requirements;
(3) Developer and Owner shall pay a maximum Development
Mitigation Fee in the amount of two dollars ($2.00) per square foot of gross
leasable building area in lieu of all other City development fees for structures on
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I
the Property or any other City fees or charges related to development, except as
otherwise provided herein in accordance with the following provisions;
i. The Development Mitigation Fee shall be applicable to all
areas of the Property, including retail space, except for the department
store anchors for the Mall on the Developer's Parcels, to which no City
development fees shall apply;
ii. The Development Mitigation Fee shall be in effect for the
duration of this Agreement;
iii. The Development Mitigation Fee shall be paid at the time
of issuance of a building permit for the structure; and
iv. Developer and Owner shall pay the Development fee only
for their respective parcels and neither Developer nor Owner shall be
responsible for the payment of the fee for the other party's parcel(s).
(4) Developer and Owner shall pay all building plan check and
building inspection fees for work on their respective parcels on the Property in
effect at the time an application for a grading permit or building permit is
applied for;
(5) The public works plan check fee and public works inspection fee
for public improvements constructed and installed by the Developer shall be the
actual costs to the City to conduct the plan check and inspections plus ten
percent (10'%) of those actual costs for administrative overhead;
(6) The Developer shall be entitled to install a major site identity sign
identifying the Project in accordance with the following regulations;
i. The sign shall be located on property with a perpetual
easement in favor of Developer and shall be located within 50 feet of the
right of way for the I -15 Freeway and within an area of 2500 feet north
or south of the right of way for Winchester Road or such other location
permitted by the City and accepted by the Developer;
ii. Upon the acquisition of the sign property by Developer,
Developer shall notify the City Manager and the City Manager is hereby
authorized to and shall enter in to an amendment to this Development
Agreement adding the sign property to the legal description of the
Developer's Parcels and causing the sign property to be subject to the
terms of this Agreement;
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' iii. The sign shall not exceed ninety four (94) feet in height.
The minimum area of the sign shall be five hundred (500) square feet of
sign area, subject to future approval of additional sign area by the
Director of Community Development;
iv. The design of the sign shall he of high architectural
quality, compatible with the area surrounding it, and shall be consistent
with the sign program for the Property adopted by the Planning
Commission;
V. The sign shall be an identification sign for the
Developer's Project which shall contain only the names of the anchor
tenants and project name and shall not contain changeable messages;
vi. The location, size and design of the sign shall be subject
to Development Plan approval and all applicable governmental permit
requirements and City shall be the lead agency in obtaining all required
permits and approvals for the sign, including, without limitation,
environmental review, permits from CalTrans and all other
governmental agencies, and a building permit for construction of the
sign;
' (7) Developer and Owner, as to their respective Parcels, shall
construct and install all public improvements set forth in Specific Plan 263 and
in the Conditions of Approval of Specific Plan 263 as applicable to the
development it actually undertakes except for those Regional Public
Improvements being constructed and installed by the City pursuant to Section 7
of this Agreement; and
(S) Subsequent development plans submitted for individual users that
are substantially in conformance with the Specific Plan 263 may be approved by
the Director of Community Development.
C. Prior to the Effective Date, City and Developer shall use reasonable
efforts to identify, assemble and copy three identical sets of the Applicable Rules, for
the City, Developer, and Owner so that if it becomes necessary in the future to refer to
any of the Applicable Rules, there will be a common set of the Applicable Rules
available to all parties.
7. Regional Public Improvements_, In accordance with the schedule of
completion described in Section 7.c., City agrees to and shall, at its own cost and expense,
except as otherwise provided herein, design, construct, install and finally complete, in a
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diligent, timely and workmanlike manner, and in conformance with the Applicable Rules, the
following regional public infrastructure improvements ( "Regional Public Improvements "):
a. Obligation to Construct- The City shall construct, install, finally
complete and thereafter maintain all perimeter road improvements for the Property in
accordance with all requirements of Specific Plan 263, the Applicable Rules and as
shown in Exhibit B -1, and as described in further detail as follows:
(1) Construct, install and finally complete all Winchester Road
improvements, including, but not limited to, adding and upgrading street
lighting, transit facilities and turn outs if required, all required signalization or
signal upgrades, landscaping, permanent irrigation systems between street curb
and sidewalks, Class II bike lanes, signs, striping, turning lanes, driveway
approaches, and sidewalks on the south side of the roadway from Ynez Road to
Margarita Road.
(2) Construct, install and finally complete all Ynez Road
improvements, including, but not limited to, adding and upgrading street
lighting, landscaping, permanent irrigation systems in medians if required,
transit facilities and turn outs if required, all required signalization or signal
upgrades, signs, turning lanes, Class lI bike lanes, driveway approaches, and
sidewalks on the east side of the roadway from Overland Drive to Winchester
Road.
(3) Construct, install, and finally complete full width Margarita Road
from Winchester Road to Solana Way improvements in a manner consistent
with and pursuant to existing Margarita Road improvement plans including, but
not limited to, landscaped medians and irrigation systems, slopes, driveway
approaches, transit facilities and turn outs if required, all required signalization
or signal upgrades, storm drainage facilities, Class 11 bike lanes, and sidewalk
and street lights on the west side of the roadway from Winchester Road to
Overland Drive. Notwithstanding anything to the contrary in Specific Plan 263,
neither Developer nor Owner shall be required to issue, provide or post any
bond, collateral or other security for the work of improvement contemplated by
this Section 7.a.(3) nor for any of the other Regional Public Improvements.
(4) Construct, install, and finally complete full width Overland Drive
road improvements, including, but not limited to, driveway approaches, transit
facilities and turn outs if required, all required signalization or signal upgrades,
storm drainage facilities, Class H bike lanes, and a sidewalk and street light on
the north side of the roadway from Margarita Road to Ynez Road.
IFhW: December 12, 1996 1108600006 pt 1480121.3 —9— p:Xvg.XI480121.md
(5) Cause the completion of the overcrossing of the I -15 Freeway
from Ynez to Jefferson at Overland Road ( "Overland Overpass ") in accordance
with existing Community Facilities District 88 -12 ( "CFD 88 -12 ") plans and
subject to the funding of the land acquisition and construction costs of the
Overland Overpass by CFD 88 -12; the parties acknowledge and agree that City
shall have no obligation to fund the Overland Overpass through its General
Fund, development impact fees it may have collected for traffic improvements
or other funds it may control;
(6) Construct, install and finally complete new, or upgrade or
remodel existing, traffic signals and all necessary or associated street
improvements as may be required at the intersections of Solana Way and
Margarita Road, all traffic signals to be used in conjunction with the Overland
Drive freeway overpass, as well as the traffic signals at the other locations
illustrated in Exhibit B-2.
(7) Underground the overhead power and communications lines on
the south side of Winchester Road from Ynez to Margarita Roads as illustrated
in Exhibit B -3.
(8) Construct, install and finally complete regional storm drainage
systems and courses through the Property as illustrated in Exhibit B-4 and which
are further described as:
A. Two (2) main underground storm drains equivalent to a
forty eight (48) inch pipe or greater, running through the Property and
discharging at the box culvert in Ynez Road.
B. A detention basin on the east side of Margarita Road.
C. An underground storm drain on the east side of Margarita
Road.
D. Box culverts and associated approaches and outlet
structures for the open channel crossing at Margarita Road and Overland
Drive including any remedial grading to the interim open channel
between the two streets.
b. Permits and Approvals- Release of Owner and Developer, Prior to
commencement of construction of any portion or segment of the Regional Public
Improvements the City shall, at its own costs and expense, obtain all grading permits,
building permits, construction permits, development permits and other licenses,
permits, approvals, or consents which are required, either by or from the City or any
IFinal: Dxmla r 12. 1996 1108600006 a 1490121.3 -10- p:V..X1480121.m
department thereof, or by or from CalTrans, Riverside County or the San Diego
County Regional Water Quality Control Board, or by or from the Sate of California
Department of Fish and Game, the State of California Water Resources Control Board,
the U. S. Army Corps of Engineers, the U. S. Fish and Wildlife Service, the National
Pollutant Discharge Elimination System or any other govemmental or quasi-
governmental agency asserting jurisdiction over the Property. If, and to the extent, that
the City's obligation pursuant to this Agreement to construct the Regional Public
Improvements conflicts with the obligation of the "Developer" or "Applicant" pursuant
to Specific Plan 263 to construct the same items, the provisions of this Agreement shall
prevail.
C. City's Time me to Complete. The City shall finally complete all of the
Regional Public Improvements, at its own cost and expense, pursuant to the following
schedule:
(1) The City shall award design contracts for the Regional Public
Improvements (excluding the Overland Overpass) promptly following the
Effective Date.
(2) On condition that the Developer delivers written notice to the
City at least thirty (30) days prior to commencement of any major grading by
Developer on any portion of Developer's Parcels, the City shall, prior to actual
commencement of major grading by Developer: (A) Take all actions, adopt all
resolutions, make all findings and adopt all ordinances as are necessary or
required to approve the final plans and specifications for the construction and
installation of all Regional Public Improvements (excluding the Overland
Overpass); and (B) complete advertising all required Notices Inviting Bids for
the construction of the Regional Public Improvements (excluding the Overland
Overpass). Developer shall diligently pursue major grading once it has
commenced.
(3) The City shall construct and finally complete installation of all
Regional Public Improvements (except the Overland Overpass) prior to the date
the Developer opens the Regional Center for business, provided, however, the
City shall not be required to commence construction of said Regional Public
Improvements until such time as the Developer commences construction of the
Regional Center. Developer shall notify City of the completion of all
contingencies to its financing of the construction of the Mall Portion of the
Developer's Parcels, that financing is ready to close, and the date construction
of the Regional Center is expected to commence within five (5) working days of
the completion of the final contingency for financing of the Regional Center.
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(4) City shall use its reasonable best efforts to cause the
commencement of construction of the Overland Overpass within thirty six (36)
months following opening of the Regional Center, subject to the funding of the
Overland Overpass through CFD 88 -12 and the conditions of approval for
Specific Plan 263. Provided, however, all traffic signals which are intended to
operate in conjunction with the Overland Overpass shall be constructed and
installed by the City pursuant to Section 7.a.(4) above, at the time required by
Section 7.c.(3) above.
d. Cooperation. City and the Developer recognize that the design and
construction of all Regional Public Improvements (including the Overland Overpass),
the Regional Center, and (when finally approved) the project on the Owner's Parcel,
will require close coordination between all of the parties. Each of the parties agrees to
coordinate the design and construction of their respective projects and improvements
with each other, to the extent reasonably practicable, in order to facilitate the orderly
development of the Property and to avoid conflicts in design and construction. In this
regard: (i) the City, Developer, and Owner shall use their respective best efforts to
create working procedures whereby each gives notice to the other in a timely manner of
their respective activities that impact on the other, and (ii) Developer and Owner shall
have the opportunity to review and comment upon the design and construction contracts
for all Regional Public Improvements, but shall do so in an expeditious manner so as
not to impede the City's design and construction schedule for the Regional Public
' Improvements. Developer and Owner acknowledge that City will bid the Regional
Public Improvements in accordance with the bidding requirements of the Public
Contract Code and will require payment of prevailing wages for the construction of the
Regional Public Improvements pursuant to Labor Code Sections 1770, et seq.
e. City'% Failure to Complete Regional Public ImprovemenLc. The City's
failure to timely complete construction and installation of the Regional Public
Improvements in accordance with the terms of this Agreement shall constitute a
material breach of this Agreement. In said event, Developer and Owner shall have all
of the rights and remedies granted to them in this Agreement. In addition, in such an
event, Developer and Owner shall have the right to require the City, at no cost or
expense to the Developer or Owner, to amend the Applicable Rules (including, but not
limited to, this Agreement and Specific Plan 263), in accordance with law, to provide
that Developer and Owner may proceed with the development, construction, and
installation of their respective projects on the Property, without any requirement that
the unfinished Regional Public Improvements be completed.
f. Coordination and Relocation of Utility Systems- Dedication of Land,
The City agrees to coordinate installation of all utility delivery systems required by the
Regional Public Improvements with the installation of planned utility delivery systems
in the Property, as well as coordinate the required relocation of any existing utility
Find: Dmca*e 12. 19% /108600006 pt 1480121.3 -12- p:'.g C %1480121.md
delivery systems and that construction delays may occur as a consequence thereof.
Developer, Owner, and the City Agree in good faith to mutually determine which
portions of the Property are required for construction and installation of the Regional
Public Improvements (except for the Overland Overpass which is to be constructed on
land not owned by the Developer or Owner). In this regard, all parties agree to use
their best efforts to have the planned utility delivery systems to be installed within the
dedicated roads. When mutually determined as aforesaid, Developer and Owner, as
appropriate, shall dedicate the land required for the Regional Public Improvements to
the City, and City agrees to accept and thereafter operate and maintain said land at no
cost to the Developer or Owner. Provided, however, if the portion(s) of the Property
to be dedicated are encumbered with liens securing repayment of any Mello-Roos
Community Facilities District bonds or any City of Temecula, County of Riverside, or
State of California real property taxes, special taxes or assessments, then Developer and
Owner, as appropriate, shall (1) cause the liens to be reallocated to the remaining
portions of the Property or the remaining portions of the applicable community
facilities district or assessment district or (2) in the event the liens cannot be so
reallocated, be obligated to pay the taxes or assessments on the portion of the Property
dedicated to the City. Developer and Owner shall not be required to pay such liens and
shall not be required to secure a lien -free release from the Agency or entity holding the
referenced liens. City shall be entitled to take the dedicated property either free and
clear of all encumbrances, assessments or liens, or, in the event the Developer or
Owner, as appropriate, cannot so deliver the dedicated land, the City shall take the land
subject only to the lien or assessment of the governmental entity and Developer or
Owner, as appropriate, shall continue to pay the taxes or assessment on the dedicated
land.
g. Agreement Re Owner's Parcel. In recognition of certain regional
benefits associated with the storm drain planned to carry storm runoff across the
Owner's property from Margarita Road to the southwesterly side of Overland Drive,
City and Owner agree that at the time a master plan is submitted by Owner for the full
Owner's Parcel, the City agrees to negotiate in good faith with the Owner in an attempt
to fund a portion of the costs of said storm drain based on the potential tax benefits to
be realized by the City from the proposed project on the Owner's Parcel.
a. Devel :cer's Faithful Performance. The parties acknowledge and agree
that Developer's faithful performance in developing the Developer's Project on the
Developer's Parcels and in constructing and installing certain public improvements and
complying with the Applicable Rules and Owner's development of a project on the
Owner's Parcel in accordance with the Applicable Rules will fulfill substantial public
needs. The City acknowledges and agrees that there is good and valuable consideration
IFinal: Dwc bc, 12, 1996 1108600006 pt 1480121.3 -13- p:\grtcmco \1480121 =W
to the City resulting from Developer's and Owner's assurances and faithful
performance thereof and that same is in balance with the benefits conferred by the City
on the Developer's Project. The parties further acknowledge and agree that the
exchanged consideration hereunder is fair, just and reasonable. Developer and Owner
each acknowledge that the consideration is reasonably related to the type and extent of
the impacts of their respective projects on the community and the Property, and further
acknowledge that the consideration is necessary to mitigate the direct and indirect
impacts caused by the development on the Property. The parties further acknowledge
that development of the Owner's Parcel alone without the development of the Regional
Center on the Developer's Parcels will not provide the benefits to the City described
above and would not in and of themselves justify the commitments of the City pursuant
to this Agreement.
b. Developer's Agreement to Develop. In consideration of the foregoing
and the City's assurance set out in Section 9 below, Developer hereby agrees to use its
reasonable best efforts, in accordance with its own reasonable business judgement,
taking into consideration market conditions, financing and other economic factors, to
develop the Mall Parcel and, if acquired, the Power Center Parcel in accordance with
the terms and conditions of this Agreement and the Applicable Rules. Notwithstanding
anything in this Agreement to the contrary, Owner shall have the right, but shall not be
obligated to construct a project on the Owner's Parcel during the term of this
' Agreement.
C. Obligations to be Non - Recourse. As a material element of this
Agreement, and as an inducement to Owner and Developer to enter into this
Agreement, each of the parties understands and agrees that the City's remedies for
breach of the obligations of Developer and Owner under this Agreement shall be
limited as described in Section 15, below.
9. Acknowledeem n s- Agreements and Assurances on the Part of the City.
In order to effectuate the provisions of this Agreement, and in consideration for the Developer
and Owner to obligate themselves to carry out the covenants and conditions set forth in the
preceding Section 8 of this Agreement, the City hereby agrees and assures Developer that
Developer will be permitted to carry out and complete the development of the Developer's
Project on the Developer's Parcels, and agrees and assures Owner that Owner will be
permitted to develop a project on the Owner's Parcel, each in accordance with the Applicable
Rules, subject to the terms and conditions of this Agreement and the Applicable Rules.
Therefore, the City hereby agrees and acknowledges that:
a. Entitlement to Develop. The Developer is hereby granted the vested
right to develop the Developer's Project on the Developer's Parcels to the extent and in
the manner provided in this Agreement, subject to the Applicable Rules and the Future
Approvals. Owner is hereby granted the vested right to develop a project on the
IFmel: December 12, 1996 11086-00006 pr 1480121.3 -14- p:*rccmm \1480121.md
Owner's Parcel in accordance with the Applicable Rules and the Future Approvals,
provided, however, that said rights of Owner shall not vest until such time as the
Developer has commenced construction of the Regional Center on the Developer's
Parcels.
b. Conflictine Enactm=M. Any change in the Applicable Rules, including,
without limitation, any change in any applicable general area or specific plan, zoning,
subdivision or building regulation, adopted or becoming effective after the Effective
Date, including, without limitation, any such change by means of a Future Approval,
an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted
for any reason whatsoever and adopted by the Council, the Planning Commission or
any other board, commission or department of City, or any officer or employee
thereof, or by the electorate, as the case may be, which would, absent this Agreement,
otherwise be applicable to the Property and which would conflict in any way with or be
more restrictive than the Applicable Rules ( "Subsequent Rules "), shall not be applied
by City to any part of the Property. Developer or Owner may give City written notice
of its election to have any Subsequent Rule applied to such portion of the Property as it
may own, in which case such Subsequent Rule shall be deemed to be an Applicable
Rule insofar as that portion of the Property is concerned.
C. Permitted Conditions. Provided Developer's or Owner's applications for
any Future Approvals are consistent with this Agreement and the Applicable Rules,
City shall grant the Future Approvals in accordance with the Applicable Rules and
authorize development of the Property for the uses and to the density and regulations as
described herein. City shall have the right to impose reasonable conditions in
connection with Future Approvals and, in approving tentative subdivision maps,
impose dedications for rights of way or easements for public access, utilities, water,
sewers, and drainage necessary for the Project or other developments on the Property;
provided, however, such conditions and dedications shall not be inconsistent with the
Applicable Rules in effect prior to implementation nor inconsistent with the
development of the Project as contemplated by this Agreement; and, provided further,
such conditions and dedication shall not impose additional infrastructure or public
improvement obligations in excess of those identified in this Agreement. If the Future
approval is not necessary for the development to occur and operate consistent with
Applicable Rules, the party applying for the Future Approval may elect to reject the
benefits and burdens of this Agreement. The party applying for a Future Approval
may protest any conditions, dedications or fees while continuing to develop the
Property; such a protest by the party applying shall not delay or stop the issuance of
building permits or certificates of occupancy.
d. Term of Maps and Other Project Approvals. Pursuant to California
Government Code Sections 66452.6(1) and 65863.9, the term of any subdivision or
parcel map that may be processed on all or any portion of the Property and the term of
Fod: D...be 12. 19% /108600006 pl 1480121.3 -15- p:%q. \1480121.."1
each of the Project Approvals, including the tentative map and any Future Approvals
shall be extended for a period of time through the scheduled termination date of this
Agreement as set forth in Section 15 below.
e. Timing of Development. Because the California Supreme Court held in
Pardee Construction Co v City of Camarillo, 37 Cal.3d 465 (1984), that failure of the
parties to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over the parties' agreement, it is the
intent of the Developer, Owner, and the City to cure that deficiency by acknowledging
and providing that Developer or Owner shall have the right (without the obligation) to
develop the their respective portions of the Property in such order and at such rate and
at such time as each deems appropriate within the exercise of its subjective business
judgement, subject to the terms of this Agreement.
f. Moratorium. No City - imposed moratorium or other limitation (whether
relating to the rate, timing or sequencing of the development or construction of all or
any part of the Property, whether imposed by ordinance, initiative, resolution, policy,
order or otherwise, and whether enacted by the Council, an agency of City, the
electorate, or otherwise) affecting parcel or subdivision maps (whether tentative,
vesting tentative or final), building permits, occupancy certificates or other entitlements
to use or service (including, without limitation, water and sewer, should the City ever
provide such services) approved, issued or granted within City, or portions of City,
shall apply to the Property to the extent such moratorium or other limitation is in
conflict with this Agreement; provided, however, the provisions of this Section shall
not affect City's compliance with moratoria or other limitation mandated by other
governmental agencies or court- imposed moratoria or other limitation.
g. Permitted Fees and Exactions. Except as otherwise provided in this
Agreement, City shall only charge and impose those fees and exactions, including,
without limitation, dedications and any other fees or taxes (including excise,
construction or any other taxes) relating to development or the privilege of developing
the Property, as are set forth in the Applicable Rules described Section 6 of this
Agreement. This Section shall not be applicable the following fees and taxes and shall
not be construed to limit the authority of City to:
(1) Charge application, processing, and permit fees for land use
approvals, building permits, and other similar permits and
entitlements, which fees are designed to reimburse City's
expenses attributable to such application, provided, however, said
application, processing and permitting fees shall not exceed the
fees that are charged by the City generally to applicants, on a
non - discriminatory basis for similar approvals, permits, or
entitlements are granted by City;
pul: Dccw6er 12, 1996 1 1086 -00006 pt 1480121.3 -16- p: Vycmrn \1480121.md
(2) Impose or levy general or special tastes, including but not limited
to, property taxes, sales taxes, parcel taxes, transient occupancy
taxes, 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 and does not burden the
Property disproportionately to other retail development within the
City; or
(3) Collect such fees or exactions as are imposed and set by
governmental entities not controlled by City but which are
required to be collected by City.
10. Cara ion and Implementation. The City agrees that it will cooperate
with Developer and Owner to the fullest extent reasonable and feasible to implement this
Agreement. Upon satisfactory performance by Developer of all required preliminary
conditions, actions and payments, the City will commence and in a timely manner proceed to
complete all steps necessary for the implementation of this Agreement and the development of
the Developer's Project on the Developer's Parcels or a project on the Owner's Parcel in
accordance with the terms of this Agreement; provided, however, City acknowledges and
agrees that nothing herein shall obligate Owner to construct a project on Owner's Parcel.
Developer and Owner shall, in a timely manner, provide the City with all documents, plans,
and other information necessary for the City to carry out its obligations. Additionally:
' a. Further Assurances, Covenant to Sign Documents. Each party shall
take all actions and do all things, and execute, with acknowledgment or affidavit, if
required, any and all documents and writings, that may be necessary or proper to
achieve the purposes and objectives of this Agreement.
b, Reimbursement and Annortionment. Nothing in this Agreement
precludes City, Developer or Owner from entering into any reimbursement agreements
for the portion (if any) of the cost of any dedications, public facilities and/or
infrastructure that City, pursuant to this Agreement, may require as conditions of the
Future Approvals, to the extent that they are in excess of those reasonably necessary to
mitigate the impacts of the Project or development on the Property.
C. Processing. Upon satisfactory completion by Developer of all required
preliminary actions and payments of appropriate processing fees, if any, City shall,
subject to all legal requirements, promptly initiate, diligently process, and complete at
the earliest possible time all required steps, and expeditiously act upon any approvals
and permits necessary for the development by Developer or Owner of the Property in
accordance with this Agreement, including, but not limited to, the following:
IFiee1: December 12, 19% 1108600006 pt 1480121.3 —17— p:\greemen \1480121...1
(1) the processing of applications for and issuing of all discretionary
approvals requiring the exercise of judgement and deliberation by City,
including without limitation, the Future Approvals;
(2) the holding of any required public hearings;
(3) the processing of applications for and issuing of all ministerial
approvals requiring the determination of conformance with the Applicable
Rules, including, without limitation, site plans, grading plans, improvement
plans, building plans and specifications, and ministerial issuance of one or more
final maps, zoning clearances, grading permits, improvement permits, wall
permits, building permits, lot line adjustments, encroachment permits,
temporary use permits, certificates of use and occupancy and approvals and
entitlements and related matters as necessary for the completion of the
development of the Property ( "Ministerial Approvals ").
d. Processing During Third Partv Litigation. The filing of any third party
lawsuit(s) against City, Developer, or Owner relating to this Agreement or to other
development issues affecting the Property shall not delay or stop the development,
processing or construction of the Developer's Parcel, approval of the Future
Approvals, or issuance of Ministerial Approvals, unless the third party obtains a court
order preventing the activity. City shall not stipulate to the issuance of any such order.
e. State- Fed 1 or Case I aw. Where any state, federal or case law allows
City to exercise any discretion or take any act with respect to that law, City shall, in an
expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in
such a way as to be consistent with, and carry out the terms of, this Agreement and
(ii) take such other actions as may be necessary to carry out in good faith the terms of
this Agreement.
L Defense of Agreement. City agrees to and shall timely take all actions
which are necessary or required to uphold the validity and enforceability of this
Agreement, subject to the indemnification provisions of this Section. If this Agreement
is adjudicated or determined to be invalid or unenforceable, the City agrees, subject to
all legal requirements, to consider and implement all modifications to this Agreement
which are necessary or required to render it valid and enforceable to the extent
permitted by applicable law; provided, however, City shall not be required to construct
or install any additional public improvements beyond those described in this Agreement
as of the Effective Date nor expend funds for items not described in this Agreement as
of the Effective Date. Developer and Owner jointly and severally agree to indemnify,
protect, defend, and hold harmless the City and its agencies, instrumentalities and their
respective officers, employees and agents (collectively, "Indemnified Parties ") from
any and all claims, actions, or proceedings ( "Claims ") brought against any of the
FmW: D..mb., 12, 19% 1108600006 pt 1480121.3 -18- p:\grow 1480121.m"1
' indemnified Parties by any third party or entity not a signatory to this Agreement,
which Claims seek to attack, set aside, void, or annul or seek monetary damages as a
result of, the City's approval of this Agreement or any amendment thereto and which
Claims are not caused by the gross negligence or wilful misconduct of any of the
Indemnified Parties, Each Indemnified Party agrees to and shall promptly notify the
Developer and Owner in writing of any Claims within ten (10) calendar days from their
receipt of any Claim. Each Indemnified Party shall cooperate fully with Owner and
Developer in the defense of all Claims. Developer and Owner shall be entitled to select
legal counsel of their choice (which counsel is/are reasonably acceptable to City) to
conduct such defense and which legal counsel shall represent the City in the defense of
such Claim. Notwithstanding the foregoing:
(1) Upon written notice to the City, Developer and/or Owner shall
have the right in their sole discretion to elect not to defend the City or elect not
to defend the validity of this Agreement. In said event, the electing party shall
be deemed to have consented to the termination of this Agreement as to said
party and City shall take all required actions as my be required by law or by this
Agreement to (A) settle the Claim and (B) terminate this Agreement as to the
electing party.
(2) Should any Indemnified Party fail to notify Owner and Developer
of the existence of any Claims or fail to fully cooperate with Owner and
' Developer in the defense of any Claims, then Owner and Developer, as
appropriate, may elect to terminate their indemnification obligations under this
Section 10.f and if such an election is made in writing to the parties to this
Agreement, the this Agreement shall terminate, expire and have no further force
or effect.
(3) The Indemnified Parties shall not reject any reasonable
settlement, including, without limitation, the option of not proceeding with any
project. Should any Indemnified Party reject a settlement which is reasonably
acceptable to Developer or Owner or their successors or assign, Owner and
Developer may elect to terminate their indemnification obligations under this
Section 10.f by written notice to all parties. If such an election is made, said
obligations shall, insofar as the rejecting Indemnified Party is concerned,
immediately terminate, expire and have no further force or effect and the
rejecting Indemnified Party shall thereafter be obligated to defend itself against
said Claims at its own cost and expense.
(4) If Owner or Developer are at any time required by this
Agreement to indemnify, defend, protect or hold any Indemnified Party
harmless from any Claims, then said Owner or Developer shall have the right
but not the obligation to terminate and cancel this Agreement as it affects the
IAatl: D=cmkr 12, 19% 1108600" pt 14801213 -19- p:Va& a U480121.m�1
' portion of the Property owned by said terminating party. If Owner or
Developer elect to terminate this Agreement pursuant to this Section 10.17.(4), it
shall do so by written notice to the City and the other party hereto, in which
event this Agreement shall as to the terminating party terminate, expire and
have no further force or effect. Thereafter, the terminating party's indemnity
and defense obligations pursuant to this Agreement shall, as to acts or omissions
occurring after the effective date of said termination, have no further force or
effect.
11. Compliance; Termination; Modifications And Amendments.
a. Review Of Compliance- The Director of Community Development of
the City ( "Director ") shall review this Development Agreement once each year, on or
before each anniversary of the Effective Date ( "Periodic Review "), in accordance with
this Section 11, the Applicable Rules and Resolution 90 -52 of the City of Temecula
( "Resolution 90 -52 ") in order to determine whether or not Developer and Owner are
out -of- compliance with any specific term or provision of this Agreement. At
commencement of each Periodic Review, the Director shall notify Developer and
Owner in writing that said Periodic Review is or has been commenced.
(1) Prima Facie Compliance. During each Periodic Review, the
Director shall request, in writing, that Developer and Owner each demonstrate
' that they have during the preceding twelve (12) month period, been in prima
facie compliance with this Agreement. For purposes of this Agreement, the
phrase "prima facie compliance" shall mean that Developer and /or Owner have
demonstrated that it has acted in a commercially reasonable manner (taking into
account the circumstances which then exist) and in good faith in attempting to
adhere to the substance of this Agreement. Precise or technical adherence to
each term or provision of this Agreement shall not be required in order for a
party to be in prima facie compliance; and the failure of any party to agree with
the City in connection with the determination or implementation of any
Discretionary Approval, Future Approval or Ministerial Approval shall not
demonstrate a lack of prima facie compliance.
(2) Notice Of Non - Compliance; Cure Rights. If during any Periodic
Review, the Director reasonably concludes that (A) either Developer or Owner
has not demonstrated that it is in prima facie compliance with this Agreement,
AND (B) that said party is out of compliance with a specific, substantive term
or provision of this Agreement, then the Director may issue and deliver to that
party a written "Notice of Non - compliance" detailing the specific reasons for
non - compliance (including references to sections and provisions of this
Agreement and Applicable Rules which allegedly have been breached) with a
complete statement of all facts demonstrating such non - compliance. That party
INmd: December 12, 19% 1108600006 q 1480121.3 -20- p:\y,ccme" \1480121.m"1
' shall then have thirty (30) calendar days following their receipt of the Notice of
Non - compliance to cure said failure(s), provided, however, if any one or more
of the item(s) of non - compliance set forth in the Notice of Non - compliance
cannot reasonably be cured within said thirty(30) calendar day period, then that
party shall not be in breach of this Agreement if it commences to cure said
item(s) within said thirty (30) day period and diligently prosecutes said cure to
completion. Upon completion of each Periodic Review, the Director shall
submit a report to the City Council setting forth the Director's determination of
whether or not each Owner and Developer have satisfactorily demonstrated
prima facie compliance with this Development Agreement, and if not, what
steps have been taken by the Director or what steps he/she recommends that the
City subsequently take. A breach or default by one party shall not constitute a
breach or default by the other party.
b. Termination of Development Agreement As To Breaching Party. If
either Owner or Developer fails to timely cure any item(s) of non - compliance set forth
in a Notice of Non - compliance, then the City shall have the right but not the obligation
to initiate proceedings for the purpose to terminating this Agreement as against that
party or the legal remedies described in Paragraph 15 of this Agreement; however,
termination of this Agreement as to one party shall not terminate this Agreement as to
any nonbreaching party. If the City determines to terminate this Agreement as to any
party, it shall give written notice thereof to both Developer and Owner, which notice
shall specify the precise grounds for termination and shall set a date, time and place for
a public hearing on the issue, all in compliance with the Development Agreement
Statutes. At the noticed public hearing, the breaching party and /or its designated
representative, as well as the non - breaching party and /or its designated representatives,
as well as the non - breaching party, shall be given an opportunity to make a full and
public presentation to the City. If, following the taking of evidence and hearing of
testimony at said public hearing, the City finds, based upon substantial evidence, that
the breaching party has not demonstrated prima facie compliance with this Agreement,
and that the breaching party is out of compliance with a specific, substantive term or
provision of this Agreement, then the City may (unless the parties otherwise agree in
writing) terminate this Agreement as to that breaching party.
C. Modification or Amendment. of Development Agreement.
Subject to the notice and hearing requirements of the applicable Development
Agreement Statutes, this Agreement may be modified or amended from time to time
only with the written consent of the Owner, Developer and the City or their successors
and assigns in accordance with the provisions of the Temecula Municipal Code and
Section 65868 of the Government Code. The parties contemplate amending this
Agreement to refine the legal descriptions of the Developer's Parcels and Owner's
Parcel once a parcel map has been approved for the Property. Such an amendment
being contemplated by this Agreement may be approved by the City Manager on behalf
IPmd: Deccmba 12, 19% 1108600006 Vt 1480121.3 -21- p:%grt %1480121.ma1
' of the City without notice and hearing pursuant to Government Code Section 65867.
Any changes to the legal description of the Property will require compliance with
Government Code Section 65867.
12. QWrating Memoranda The provisions of this Agreement require a
close degree of cooperation between City, Developer and Owner. The anticipated refinements
to the Developer's Project and other development activity at the Property may demonstrate that
clarifications to this Agreement and the Applicable Rules are appropriate with respect to the
details of performance of City, Developer, and Owner. If and when, from time to time,
during the term of this Agreement, City, Developer and Owner agree that such clarifications
are necessary or appropriate, they shall effectuate such clarifications through operating
memoranda approved in writing by the City, Developer and Owner, which, after execution,
shall be attached hereto and become a part of this Agreement and the same may be further
clarified from time to time as necessary with future written approval by City, Developer and
Owner. Operating memoranda are not intended to constitute an amendment to this Agreement
but mere ministerial clarifications, therefore public notices and hearings shall not be required.
The City Attorney shall be authorized, upon consultation with, and approval of, Developer and
Owner, to determine whether a requested clarification may be effectuated pursuant to this
Section or whether the requested clarification is of such a character to constitute an amendment
hereof which requires compliance with the provisions of Section 12.c., above. The authority
to enter into such operating memoranda is hereby delegated to the City Manager and the City
Manager is hereby authorized to execute any operating memoranda hereunder without further
' Council action.
13. Term of Agreement. This Agreement shall become operative and
commence upon the Effective Date. It shall remain in effect until ten (10) years from the
Effective Date unless this Agreement is terminated, modified, or extended upon mutual written
consent of the parties hereto or as otherwise provided in this Agreement. Following the
expiration or termination of the term, hereof, this Agreement shall be deemed terminated and
of no further force and effect; provided, such expiration or termination shall not automatically
affect any right of the City, Developer or Owner arising from City approvals on the Property
prior to the expiration or termination of the term and arising from the duties of the parties as
prescribed in this Agreement.
14. Tax Reimbursements. The Property lies within an area defined as
Mello-Roos Community Facilities District 88 -12 ( "CFD 88 -12 "). Pursuant to CFD 88 -12,
under certain conditions, the City has the right, but not the obligation, to reimburse property
owners within CFD 88 -12 for annual special taxes previously paid by that property owner.
The City agrees to implement any existing reimbursement agreements which may be applicable
to the Property and to Developer and Owner by virtue of their acquiring portions of the
Property.
15. Administration of Agreement and Resolution of Disputes.
' Final: D=mber 12. 1996 1108600006 pt 1480121.3 -27' p:.g em 1480121.mN
' a. Administration of D*Sputeq _ All disputes involving the enforcement,
interpretation or administration of this Agreement (including, but not limited to decisions by
the City staff concerning this Agreement and any of the projects or other matters concerning
this Agreement which are the subject hereof) shall first be subject to good faith negotiations
between the parties to resolve the dispute. In the event the dispute is not resolved by
negotiations, the dispute shall then be heard and decided by the Planning Commission. Then,
decisions of the Planning Commission which remain in dispute shall be appealed to the City
Council in accordance with the procedures set forth in the Applicable Rules. Then, decisions
of the City Council which remain in dispute shall be appealable to, heard by, and resolved
pursuant to the Mandatory Alternative Dispute Resolution procedures set forth in Section 15.b
hereinbelow.
b. Mandatory Alternative Dispute Resolution. After the provisions of Section 15.a
above have been complied with, and pursuant to Code of Civil Procedure Section 638. et seq.,
all disputes regarding the enforcement, interpretation of administration of this Agreement
(including, but not limited to, appeals from decisions of the City Council, all matters involving
Code of Civil Procedure Section 1094.5, all Ministerial Approvals, Discretionary Approvals
Future Approvals and the application of Applicable Rules) shall be heard and resolved
pursuant to the alternative dispute resolution procedure set forth in this Section 15.b. All
matters to be heard and resolved pursuant to this Section 15.b shall be heard and resolved by a
single appointed referee who shall be a retired judge from either the California Superior Court,
the California Court of Appeal, the California Supreme Court, The United States District
Court or the United States Court of Appeals, provided that the appointed referee shall have
significant and recent experience in resolving land use and real property disputes. The parties
to this Agreement who are involved in the dispute shall agree and appoint a single referee who
shall then try all issues, whether of fact or law, and report in writing to the parties to the
disputes all findings of facts and issues and decisions of law and the final judgments made
thereon, in sufficient detail to inform each party as the basis of the referee's decision. The
referee shall try all issues as if he/she were a California Superior Court judge, sitting without a
jury, and shall (unless otherwise limited by any term or provision of this Agreement) have all
legal and equitable powers granted a California Superior Court judge. Prior to the hearing,
the parties shall have full discovery rights as provided by the California Code of Civil
Procedure. At the hearing, the parties shall have the right to present evidence, examine and
cross - examine lay and expert witnesses, submit briefs and have arguments of counsel heard, all
in accordance with a briefing and hearing schedule reasonably established by the referee. The
referee shall be required to follow and adhere to all laws, rules an regulations of the State of
California in the hearing of testimony, admission of evidence, conduct of discovery, issuance
of a judgment and fashioning of remedy, subject to such restriction on remedies as set forth in
this Agreement. If the parties involved in the dispute are unable to agree on a referee, any
party to the dispute may seek to have a single referee appointed by a California Superior Court
and the hearing shall be held in Riverside County pursuant to Code of Civil Procedure Section
640. The cost of any proceeding held pursuant to this Section 15.b shall initially be borne
equally by the parties involved in the dispute, and each party shall bear its own attorney's fees.
Ilre - December 12, 19% 1108600006 p11490121.3 -23- pAV.a %1490121..4
' Any referee selected pursuant to this Section shall be considered a temporary judge appointed
pursuant to Article 6, Section 21 of the California Constitution. If any party to the dispute
fails to timely pay its fees or costs, or fails to cooperate in the administration of the hearing
and decision process as determined by the referee, the referee shall upon the written request of
any party to the dispute be required to issue a written notice of breach to the defaulting party
and, if the defaulting party fails to timely respond or cooperate with the period of time set
forth in the notice of default (which in any event may not exceed thirty (30) calendar days),
then the referee shall upon the request of any non - defaulting party render a default judgement
against the defaulting party. At the end of the hearing, the referee shall issue a written
judgement (which may include an award of reasonable attorneys' fees and costs as elsewhere
provided in this Agreement), which judgment shall be final and binding between the parties
and may be entered as a final judgment in a California Superior Court. The referee shall use
his/her best efforts of finally resolve the dispute and issue a final judgment within sixty (60)
calendar days from his/her appointment.
(1) Any party to the dispute may, in addition to any other rights or remedies
provided to it by this Agreement, seek, to enjoin any threatened or attempted violation
hereof, or enforce by specific performance the obligations and rights of the parties
hereto, except as otherwise provided herein.
(2) The parties hereto agree that (A) the City would not have entered into
this Agreement if it were to be liable for general, special or compensatory damages for
any default under or with respect to this Agreement or the application thereof, and (B)
Owner and Developer have adequate remedies, other than general, special or
compensatory damages, to secure City's compliance with it's obligations under this
Agreement. Therefore, the undersigned agree that the City, and its officers, employees
and agents, shall not be liable for general, special or compensatory damages to the
Owner and Developer or to any successor or assignee or transferee of the Owner or
Developer, for the City's breach or default under or with respect to this Agreement;
and the Owner and Developer covenant not to sue the City for, or claim against the
City, any right to receive general, special or compensatory damages for default of this
Agreement by City. Notwithstanding the provisions of this subsection (2), City agrees
that Developer and Owner shall have the right to seek a refund or return of a deposit
made with the City or fee paid to the City in accordance with the provisions of the
Applicable Rules.
(3) Notwithstanding the other provisions of this Section to the contrary, City
agrees that its only recourse in the event the Developer does not proceed with
construction of the Regional Center as provided in Section 8., shall be the termination
of this Development Agreement and City shall not have any right to damages or
specific enforcement of the Developer's obligation to complete the Regional Center as
provided in Section 8.
IPied: Dambe 12. 19% 110664)0006 pt 1480121.3 -24- p:\q. \1460121.eW
r.l .1. •lu1
a. Right to As_sien. Developer or Owner shall have the right to sell, assign
or transfer all or portions of the Property and the rights under this Agreement which
they may own to any person at any time during the term of this Agreement without
approval of the City provided Developer has provided to Owner and to the City
Manager thirty (30) days prior written notice of the proposed transfer and Developer
provides to Owner and City with notice of the name and address of the assignee within
ten (10) days of the effective date of the transfer. Should the Owner acquire the rights
of the Developer (as elsewhere provided in this Agreement), the Owner shall have the
right to sell, assign or transfer the rights under this Agreement without the approval of
the City provided the Owner has provided to the City Manager thirty (30) days prior
written notice of the proposed transfer and the name and address of the assignee within
ten (10) days after the effective date of the transfer.
b. Liabilities Upon Transfer- Upon the delegation of all duties and
obligations and the sale, transfer or assignment of all or any portion of the Property,
Developer or Owner, as the case may be, shall be released from its obligations under
this Agreement with respect to the Property, or portion thereof, so transferred arising
subsequent to the effective date of such transfer if (1) Developer has provided to Owner
and City thirty (30) days' prior written notice of such transfer (2) the transferee has
agreed in writing to be subject to all of the provisions hereof applicable to the portion
of the Property so transferred. Upon any transfer of any portion of the Property and
the express assumption of Developer's or Owner's obligations under this Agreement by
such transferee, City agrees to look solely to the transferee for compliance by such
transferee with the provisions of this Agreement as such provisions relate to the portion
of the Property acquired by such transferee. A default by any transferee shall only
affect that portion of the Property owned by such transferee and shall not cancel or
diminish in any way Developer's or Owner's rights hereunder with respect to any
portion of the Property not owned by such transferee. The transferee shall be
responsible for the reporting and annual review requirements relating to the portion of
the Property owned by such transferee, and any amendment to this Agreement between
City and a transferee shall only affect the portion of the Property owned by such
transferee.
C. Owner's Rights. In the event Developer does not purchase the
Developer's Parcels and it right to do so expires or terminates, the Owner's rights with
respect to the Developer's Parcels are set forth at Section 3 of this Agreement.
17. Mortgage Protection. The parties hereto agree that this Agreement shall
not prevent or limit Developer or Owner, in any manner, at Developer's or 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
IFbvl: D..ba 12, 19% 11086-00006 pt 1480121.3 -25- p:1agrc 11480121.m.1
Property. City acknowledges that the lender(s) providing such financing may require certain
Agreement interpretations and modifications and agrees upon request, from time to time, to
meet with Developer or Owner and representatives of such lender(s) 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 intent and purposes of this Agreement. Any mortgagee of a
mortgage or a beneficiary of a deed of trust ( "Mortgagee ") on the Property shall be entitled to
the following rights and privileges:
a. )gage Not Rendered Invalid. Neither entering into this Agreement
nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien
of any mortgage or deed of trust on the Property made in good faith and for value.
b. Request for Notice to Mortgagee. The Mortgagee of any mortgage or
deed of trust encumbering the Property, or any part thereof, who has submitted a
request in writing to City in the manner specified herein for giving notices, shall be
entitled to receive written notification from City of any default by Developer or Owner
in the performance of Developer's or Owner's obligations under this Agreement.
C. Mortgagee's Time Ire. If City timely receives a request from a
Mortgagee requesting a copy of any notice of default given to Developer under the
terms of this Agreement, City shall provide a copy of that notice to the Mortgagee
within ten days of sending the notice of default to Developer or 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.
d. Property Taken Subject to Obligations, 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 foreclosure, shall take the Property, or
part thereof, subject to the terms of this Agreement; provided, however, in no event
shall such Mortgagee be liable for any defaults or monetary obligations of Developer
arising prior to acquisition of title to the Property by such Mortgagee, except that any
such Mortgagee or its successors or assigns shall not be entitled to a building permit or
occupancy certificate until all delinquent and current fees and other monetary
obligations due under this Agreement for the Property, or portion thereof acquired by
such Mortgagee, have been paid to City.
18. Notices. All notices under this Agreement shall be in writing and shall
be deemed delivered when personally received by the addressee, or within three (3) calendar
days after deposit in the United States mail by registered or certified mail, postage prepaid,
return receipt requested, to the following parties and their counsel at the addresses indicated
below, provided, however, if any party to this Agreement delivers a notice or causes a notice
IPing: December 12. 19% 1108600006 p11480121.3 -26- p:\.8¢eme" \1080121.md
r]
to be delivered to any other party to this Agreement, a duplicate of that Notice shall be
concurrently delivered to each other party and their respective counsel.
To City: City of Temecula
Attention: City Manager
43200 Business Park Drive
Temecula, CA 92590 -3606
With a Copy to: Peter M. Thorson, Esq.
Richards, Watson & Gershon
333 South Hope Street, 38th Floor
Los Angeles, CA 90071
To Developer: Forest City Development Inc.
949 South Hope Street, Suite 200
Los Angeles, CA 90015
Attn: Brian M. Jones
With a Copy to: Forest City Enterprises, Inc.
10800 Brookpark Rd.
Cleveland, Ohio 44130
Attention: General Counsel
To Owner: LGA -7, INC.
c/o Kemper Insurance Companies
One Kemper Drive
Corporate Legal Department, C -3
Long Grove, Illinois, 60049 -0001
Attn: Chief Financial Officer and
General Counsel
With a Copy to: Myron Meyers, Esq.
Keith D. Elkins, Esq.
Jeffers, Mangels, Butler & Marmaro,
LLP
2121 Avenue of the Stars, 10th Floor
Los Angeles, California 90067
Notice given in any other manner shall be effective when received by the addressee. The
addresses for notices may be changed by notice given in accordance with this provision.
IN.W: D,..kr 12, 1996 1109&00006 pt 1480121.7 -27- p:1g� 1480121.mu1
19. Severahility and Termination. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable, or if any
provision of this Agreement is superseded or rendered unenforceable according to any law
which becomes effective after the Effective Date, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not rendered impractical to perform, taking
into consideration the purposes of this Agreement.
20. Time of Essenc . Time is of the essence for each provision of this
Agreement of which time is an element.
21. Fore Malec. Changed conditions, changes in local, state or federal
laws or regulations, floods, earthquakes, delays due to strikes or other labor problems,
moratoria enacted by City or by any other governmental entity or agency, injunctions issued
by any court of competent jurisdiction, the inability to obtain materials, civil commotion, fire,
intragalatic invasion, acts of God, or other circumstances which substantially interferes with
the development or construction of the Developer's Parcels or the development of the Owner's
Parcel, or which substantially interferes with the ability of any of the parties to perform its
obligations under this Agreement shall collectively be referred to as "Events of Force
Majeure." If any party to this Agreement is prevented by an Event or Events of Force
Majeure from performing its obligation under this Agreement, then on condition that the party
claiming the benefit of said Event(s) of Force Majeure (a) did not cause said Event(s) and (b)
said Event(s) was beyond said party's reasonable control, the time for performance by said
party of its obligations under this Agreement shall be extended by a number of days equal to
the number of days that said Event(s) of Force Majeure continued in effect, or by the number
of days it takes to repair or restore the damage caused by said Event(s) to the condition which
existed prior to the occupance of said Event(s), which ever is longer; provided, however, that
the termination date of this Agreement as set forth in Section 13 of this Agreement shall not be
extended by this provision.
22. Waiver. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized representative of the party against
whom enforcement of a waiver is sought.
23. No Third Party Beneficiaries. This Agreement is made and entered into
for the sole protection and benefit of the Developer, Owner, the City of Temecula and their
successors and assigns. No other person shall have any right of action based upon any
provision of this Agreement.
24. Attorneys' Fees. If any party commences any action for the
interpretation, enforcement, termination, cancellation or rescission of this Agreement, or for
specific performance for the breach hereof, the prevailing party shall be entitled to its
reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees under this Section
IP6J: D. .d,, 12, 19% 1108600006 a 1480121.7 -28- p:%ag �N1480121.md
shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any
post judgment proceedings to collect or enforce the judgment.
25. incorporation of Exhibits. The following exhibits which are part of this
Agreement are attached hereto and each of which is incorporated herein by this reference as
though set forth in full:
EXHIBIT A
LEGAL DESCRIPTION
Exhibit A -1
Property
Exhibit A -2
Developer's Parcels - -Mall Parcel
Exhibit A -3
Developer's Parcels- -Power Center Parcel
Exhibit A-4
Owner's Parcel
EXHIBIT B CITY OF TEMECULA FURNISHED
INFRASTRUCTURE
Exhibit B -1 Street Improvements
Exhibit B -2 Traffic Signals
Exhibit B -3 Underground Power Lines
Exhibit B-4 Storm Drain Improvements
26. Authority to Execute- Binding fE_fect. Owner and Developer each
represent and warrant that they have the power and authority to execute this Agreement and,
' once executed, this Agreement shall be final and binding on said parties. The City represents
and warrants to Owner and Developer as follows: (a) all public notices have been given and
published, all public hearings have been held, all applicable laws, rules, ordinances and
regulations have been issued as are necessary or required for the approval of this Agreement;
(b) this Agreement is consistent with Specific Plan 263; (c) this Agreement once executed by
the City, shall be final and binding on the City; and (d) this Agreement may not be amended,
modified, changed or terminated in the future by the City except in accordance with the terms
and conditions set forth herein.
27. Entire Agreement: Conflicts. This Agreement represents the entire
agreement of the parties. This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous agreements between the
parties or their predecessors in interest with respect to all or any part of the subject matter
hereof. Should any or all of the provisions of this Agreement be found to be in conflict with
any other provision or provisions found in the Applicable Rules, or Subsequent Applicable
Rules, then the provisions of this Agreement shall prevail.
Pmd: Damba 12, 1996 1108600006 pt 1480121.3 -29- p:l.g. \1480121.md
IN WITNESS WHEREOF, the Parties have each executed this Agreement of
the date first written above.
CITY OF TEMECULA
ATTEST:
June S. Greek
City Clerk
APPROVED AS TO FORM:
Peter M. Thorson
City Attorney
KAREL LINDEMANS
Mayor
FOREST CITY DEVELOPMENT, INC., a
California Corporation
M
President
FmW: Dacmw 1z,1996 110964)0006 a 1490121.3 -30- n:1as* \1490121.m
LGA -7, INC., an Illinois Corporation
By:
0
President
Ipmd: Deemhe 12, 19% 11086 -00006 pt 1480121.3 -31- p:\ftrtmmV480121.md
IALL- PURPOSE ACKNOWLEDGMENT
State of California )
County of )
On 1996, before me, personally
appeared
[ ] personally known to me -OR-
[ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she/they
executed the same in his/her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official sea].
SIGNATURE OF NOTARY
CAPACITY CLAIMED
BY SIGNER
[ ] INDIVIDUAL(S)
[ ] OFFICER(S) (TITLE[S]):
[ ] PARTNER(S)
[ ] ATTORNEY -IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN /CONSERVATOR
[ ]
CHAIRPERSON/MAYOR_
[ ] OTHER:
SIGNER IS REPRESENTING:
Fina: Dwcmbc 12, 19% 1108600006 pt 1480121.3 -32- p:lq,e A1480121.mY
fJ
ALL - PURPOSE ACKNOWLEDGMENT
State of California )
County of )
1996, before me,
personally
[ ] personally known to me -OR-
[ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
[ ] INDIVIDUAL(S)
[ ] OFFICER(S) (TITLE[S]):
I
[]
CAPACITY CLAIMED
BY SIGNER
PARTNER(S)
ATTORNEY -IN-FACT
TRUSTEE(S)
SUBSCRIBING WITNESS
GUARDIAN /CONSERVATOR
CHAIRPERSON/MAYOR_
OTHER:
SIGNER IS REPRESENTING:
Pied: December 12, 1996 1108600006 pt 1480121.3 -33- p:'AStecmea11480121.md
v
ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of
On 1996, before me,
appeared
personally
[ ] personally known to me -OR-
[ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he/she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
I CAPACITY CLAIMED
BY SIGNER
[ ] INDIVIDUAL(S)
[ ] OFFICER(S) (TITLE[S]):
[ ]
PARTNER(S)
[ ]
ATTORNEYAN -FACT
[ ]
TRUSTEE(S)
[ ]
SUBSCRIBING WITNESS
[ ]
GUARDIAN /CONSERVATOR
[ ]
CHAIRPERSON /MAYOR_
[ ]
OTHER:
SIGNER IS REPRESENTING:
IProd: Dwcmbv 12, 1996 1108600006 pt 1480121.3 -34- p:\*g r \1480121.aW
ALL- PURPOSE ACKNOWLEDGMENT
State of California )
County of )
On 1996, before me, personally
appeared
[) personally known to me -OR-
[ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
CAPACITY CLAIMED
BY SIGNER
[ ] INDIVIDUAL(S)
[ ] OFFICER(S) (TITLE[S]):
[ ]
PARTNER(S)
[ ]
ATTORNEY -IN -FACT
[ ]
TRUSTEE(S)
[ ]
SUBSCRIBING WITNESS
[ ]
GUARDIAN /CONSERVATOR
[ ]
CHAIRPERSON /MAYOR_
[ ]
OTHER:
SIGNER IS REPRESENTING:
1 F.W: Da .bv 12, 1"6 1108600006 pi 1480121.3 -35
v:\e�\1460121.mW
Robert Bein, William Frost & Associates
27555 Ynez Road, Suite 400
Temecula, CA 92591
LEGAL DESCRIPTION
MALL SITE
OVERALL OWNERSHIP
December 3, 1996
JN 401027 -M5
Page 1 of 1
That certain parcel of land situated in the City of Temecula, County of Riverside, State of
California, being those portions of Lots 115, 117, 140 and 141, Jackson Avenue, Lincoln
Avenue and Monroe Avenue (vacated by Resolution of the Board of Supervisors recorded
December 19, 1951 in Book 1328, Page 67 of Official Records in the Office of the County
Recorder of said Riverside County) and Apricot Street as shown on a Map of the Temecula
Land and Water Company filed in Book 8, Page 359 of Maps in the Office of the County
Recorder of San Diego County, California, together with those portions of Lots 4 through 7
of Tract No. 3334 filed in Book 54, Pages 25 through 30 of Maps in said Office of the Riverside
County Recorder, included within Parcels A, B, C, F, G and H of Lot Line Adjustment No.
PA95 -0111 recorded December 15, 1995 as Instrument No. 416771 of Official Records in said
Office of the Riverside County Recorder.
CONTAINING: 189.17 Acres Gross, more or less.
SUBJECT TO all covenants, rights, rights -of -way and easements of record.
L.S. 3527 ° im 1 Lawrence L. Bacon, PLS 3527
�' Expo ;0 -2000 "Z
EXHIBIT A -I
m
x
x
a
Robert Bein, William Frost & Associates
27555 Ynez Road, Suite 400
Temecula, CA 92591
Revised December 3, 1996
November 5, 1996
JN 401027 -M3
Page 1 of 4
• W •
That certain parcel of land situated in the City of Temecula, County of Riverside, State of
California, being those portions of Lots 115, 117, and 140, Jackson Avenue and Monroe
Avenue (vacated by Resolution of the Board of Supervisors recorded December 19, 1951 in
Book 1328, Page 67 of Official Records in the Office of the County Recorder of said Riverside
County) and Apricot Street as shown on a map of the Temecula Land and Water Company
filed in Book 8, Page 359 of Maps in the Office of the County Recorder of San Diego County,
California, together with those portions of Lots 4, 5 and 6 of Tract No. 3334 filed in Book 54,
' Pages 25 through 30 of Maps in said Office of the Riverside County Recorder (being also
shown as portions of Parcels A, B, F, G and H of Lot Line Adjustment No. PA95 -0111
recorded December 15, 1995 as Instrument No. 416771 of Official Records in said Office of
the Riverside County Recorder, described as a whole as follows:
COMMENCING at the intersection of the centerline of Margarita Road (110.00 feet wide)
as described in Parcel 1 of an easement deed recorded August 18, 1992 as Instrument No.
305607 of Official Records in said Office of the Riverside County Recorder with the
southeasterly line of Winchester Road (60.00 feet wide) as described in a deed recorded April
8, 1930 in Book 722, Page 512 of Deeds in said Office of the Riverside County Recorder;
thence along said centerline of Margarita Road through the following courses:
South 43 °54'46" East 54.68 feet to the beginning of a tangent curve in said centerline concave
southwesterly and having a radius of 2000.00 feet;
thence along said curve southeasterly 931.03 feet through a central angle of 26 °40'19" to the
southerly terminus thereof;
thence leaving said centerline, radially from said curve South 72 °45'33" West 55.00 feet;
thence South 53 °33'19" West 844.53 feet to the TRUE POINT OF BEGINNING;
EXHIBIT A -2
Revised December 3,1996
Robert Bein William Frost & Associates November 5, 1996
Temecula Town Center JN 401027 -M3
Regional Mall - Westerly Portion Page 2 of 4
thence South 41 °46'24" East 486.00 feet to the beginning of a tangent curve concave
southwesterly and having a radius of 350.00 feet;
thence along said curve southeasterly 231.36 feet through a central angle of 37 °52'29';
thence tangent from said curve South 03 °53'55" East 180.01 feet to the beginning of a tangent
curve concave northwesterly and having a radius of 350.00 feet;
thence along said curve southwesterly 318.42 feet through a central angle of 52 °07'31 ";
thence tangent from said curve South 48 °13'36" West 1072.28 feet to the beginning of a tangent
curve concave northwesterly and having a radius of 394.00 feet;
thence along said curve southwesterly 171.91 feet through a central angle of 25 °00'00';
thence tangent from said curve South 73 °13'36" West 138.88 feet to the beginning of a tangent
curve concave northerly and having a radius of 394.00 feet;
thence along said curve westerly 309.45 feet through a central angle of 45 °00'00';
thence tangent from said curve North 61 °46'24" West 136.59 feet to the beginning of a tangent
curve concave southerly and having a radius of 35.00 feet;
thence along said curve westerly 54.98 feet through a central angle of 90 °00'00';
thence tangent from said curve South 28 °13'36" West 42.03 feet to the beginning of a tangent
curve concave northwesterly and having a radius of 281.00 feet;
thence along said curve southwesterly 166.90 feet through a central angle of 34 °01'48';
thence tangent from said curve South 62 °15'24" West 112.31 feet to the beginning of a tangent
curve concave southeasterly and having a radius of 35.00 feet;
thence along said curve southwesterly 41.72 feet through a central angle of 68 °18'02" to the
non - tangent intersection with a curve concave southwesterly and having a radius of 1267.00
feet in the northeasterly line of Ynez Road as described in a document recorded August 28,
1991 as Instrument No. 297822 of Official Records in said Office of the Riverside County
Recorder, a radial line of said curve from said point bears
South 64 °10'44" West;
Robert Bein William Frost & Associates
Temecula Town Center
Regional Mall - Westerly Portion
Revised December 3, 1996
November 5, 1996
JN 401027 -M3
Page 3 of 4
thence non - tangent from said curve South 64 °14'07" West 15.06 feet to the non- tangent
intersection with a curve concave southwesterly and having a radius of 1044.00 feet in the
northeasterly line of Ynez Road (88.00 feet wide) as described in a deed recorded July 12, 1973
as Instrument No. 90991 of Official Records in said Office of the Riverside County Recorder,
a radial line of said curve from said point bears South 64 °14'07" West;
thence along said northeasterly line through the following courses: along said curve
northwesterly 295.80 feet through a central angle of 16 °14'02 ";
thence tangent from said curve North 41 °59'55" West 1143.31 feet to the beginning of a tangent
curve concave easterly and having a radius of 50.00 feet;
thence along said curve northerly 78.65 feet through a central angle of 90 °07'31" to the point
of tangency with said southeasterly line of Winchester Road (60.00 feet wide) as described in
said deed recorded April 8, 1930 in Book 722, Page 512 of Deeds;
thence leaving said northeasterly line, along said southeasterly line of Winchester Road
North 48 °07'36" East 2409.53 feet;
thence South 41 °52'24" East 50.16 feet to a non - tangent intersection with a curve in the
southeasterly line of Winchester Road concave southeasterly and having a radius of 1933.00
feet, said point being the beginning of a non - tangent curve concave easterly and having a radius
of 35.00 feet, a radial line of last said curve from said point bears South 83 °42'51" East;
thence along said curve southerly 29.36 feet through a central angle of 48 °03'33';
thence tangent from said curve South 41 °46'24" East 66.99 feet to the beginning of a tangent
curve concave westerly and having a radius of 260.00 feet;
thence along said curve southerly 174.08 feet through a central angle of 38 °21'42';
thence tangent from said curve South 03 °24'42" East 111.87 feet to the beginning of a tangent
curve concave northeasterly and having a radius of 35.00 feet;
thence along said curve southerly 48.73 feet through a central angle of 79 °46'18" to a point of
' reverse curvature with a curve concave southerly and having a radius of 500.00 feet, a radial
line of said curve from said point bears South 06 °49'00" West;
Revised December 3, 1996
Robert Bein William Frost & Associates November 5, 1996
Temecula Town Center JN 401027 -M3
Regional Mall - Westerly Portion Page 4 of 4
thence along said curve easterly 361.37 feet through a central angle of 41 °24'36';
thence tangent from said curve South 41 °46'24" East 205.91 feet to the TRUE POINT OF
BEGINNING.
CONTAINING: 102.20 Acres Gross, more or less.
99.36 Acres Net, more or less.
SUBJECT TO all covenants, rights, rights -of -way and easements of record.
�----------------
�`� vc Lawrence L. Bacon, PLS 3527
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Robert Bein, William Frost & Associates
27555 Ynez Road, Suite 400
Temecula, CA 92591
Revised December 3, 1996
November 5, 1996
JN 401027 -M2
Page 1 of 3
• ►Y.
That certain parcel of land situated in the City of Temecula, County of Riverside, State of
California, being those portions of Lots 140 and 141 and Lincoln Avenue (vacated by
Resolution of the Board of Supervisors recorded December 19, 1951 in Book 1328, Page 67
of Official Records in the Office of the County Recorder of said Riverside County) as shown
on a map of the Temecula Land and Water Company filed in Book 8, Page 359 of Maps in the
Office of the County Recorder of San Diego County, California (being also shown as Portions
of Parcels B and C of Lot Line Adjustment No. PA95 -0111 recorded December 15, 1995 as
Instrument No. 416771 of Official Records in said Office of the Riverside County Recorder)
described as a whole as follows:
BEGINNING at the intersection of the centerline of Margarita Road (110.00 feet wide) as
described in Parcel 1 of an easement deed recorded August 18, 1992 as Instrument No. 305607
of Official Records in said Office of the Riverside County Recorder with the southeasterly line
of Winchester Road (60.00 feet wide) as described in a deed recorded April 8, 1930 in Book
722, Page 512 of Deeds in said Office of the Riverside County Recorder;
thence along said centerline of Margarita Road through the following courses:
South 43 °54'46" East 54.68 feet to the beginning of a tangent curve in said centerline concave
southwesterly and having a radius of 2000.00 feet;
thence along said curve southeasterly 931.03 feet through a central angle of 26 °40'19" to the
southerly terminus thereof;
thence leaving said centerline, radially from said curve South 72 °45'33" West 55.00 feet;
thence South 53 °33'19" West 844.53 feet;
thence North 41 046'24" West 205.91 feet to the beginning of a tangent curve concave
southwesterly and having a radius of 500.00 feet;
EXHIBIT A -3
' Revised December 3, 1996
Robert Bein, William Frost & Associates November 5, 1996
Temecula Town Center Regional Mall JN 401027 -M2
Power Center Page 2 of 3
thence along said curve northwesterly 361.37 feet through a central angle of 41 °24'36" to a
point of reverse curvature with a curve concave northeasterly and having a radius of 35.00 feet,
a radial line of said curve from said point bears North 06 °49'00" East;
thence along said curve northwesterly 48.73 feet through a central angle of 79 °46'18';
thence tangent from said curve North 03°24'42" West 111.87 feet to the beginning of a tangent
curve concave westerly and having a radius of 260.00 feet;
thence along said curve northerly 174.08 feet through a central angle of 38 °21'42';
thence tangent from said curve North 41 °46'24" West 66.99 feet to the beginning of a tangent
curve concave easterly and having a radius of 35.00 feet;
thence along said curve northerly 29.36 feet through a central angle of 48 °03'33" to the non-
, tangent intersection with a curve concave southeasterly and having a radius of 1933.00 feet in
the southeasterly line of Winchester Road as described in a document recorded April 23, 1991
as Instrument No. 132834 of Official Records in said Office of the Riverside County Recorder,
a radial line of said curve from said point bears South 35 °11'03" East;
thence non - tangent from said curve North 41 °52'24" West 50.16 feet to said southeasterly line
of Winchester Road (60.00 feet wide);
thence along said southeasterly line through the.following courses: North 48 °07'36" East 3.29
feet to the beginning of a tangent curve therein concave southeasterly and having a radius of
925.37 feet;
thence along said curve northeasterly 233.45 feet through a central angle of 14 °27'16';
thence tangent from said curve North 62 °34'52" East 269.57 feet to the beginning of a tangent
curve concave northwesterly and having a radius of 985.37 feet;
thence along said curve northeasterly 283.66 feet through a central angle of 16 °29'38';
' Revised December 3, 1996
Robert Bein, William Frost & Associates November 5, 1996
Temecula Town Center Regional Mall JN 401027 -M2
Power Center Page 3 of 3
thence tangent from said curve North 46 °05'14" East 280.78 feet to the POINT OF
BEGINNING.
CONTAINING: 22.81 Acres Gross, more or less.
20.64 Acres Net, more or less.
SUBJECT TO all covenants, rights, rights -of -way and easements of record.
Lawrence L. Bacon, PLS 3527
LS. 3527 z �
Exp.
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Robert Bein, William Frost & Associates
27555 Ynez Road, Suite 400
Temecula, CA 92591
December 3, 1996
JN 401027 -M4
Page 1 of 4
• C Y•
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That certain parcel of land situated in the City of Temecula, County of Riverside, State of
California, being those portions of Lots 115, 117, 140, 141, Lincoln Avenue and Monroe
Avenue (vacated by Resolution of the Board of Supervisors recorded December 19, 1951 in
Book 1328, Page 67 of Official Records in the Office of the County Recorder of said Riverside
County) and Apricot Street as shown on a Map of the Temecula Land and Water Company
filed in Book 8, Page 359 of Maps in the Office of the County Recorder of San Diego County,
California, together with those portions of Lots 4, 5 and 6 of Tract No. 3334 filed in Book 54,
Pages 25 through 30 of Maps in said Office of the Riverside County Recorder (being also
' shown as portions of Parcels A, B, C, F, G and H of Lot Line Adjustment No. PA95 -0111
recorded December 1.5, 1995 as Instrument No. 416771 of Official Records in said Office of
the Riverside County Recorder, described as a whole as follows:
COMMENCING at the intersection of the centerline of Margarita Road (110.00 feet wide)
as described in Parcel 1 of an easement deed recorded August 18, 1992 as Instrument No.
305607 of Official Records in said Office of the Riverside County Recorder with the
southeasterly line of Winchester Road (60.00 feet wide) as described in a deed recorded April
8, 1930 in Book 722, Page 512 of Deeds in said Office of the Riverside County Recorder;
thence along said centerline of Margarita Road through the following courses:
South 43 °54'46" East 54.68 feet to the beginning of a tangent curve in said centerline concave
southwesterly and having a radius of 2000.00 feet;
thence along said curve southeasterly 931.03 feet through a central angle of 26 °40'19" to the
southerly terminus thereof and the TRUE POINT OF BEGINNING;
thence leaving said centerline, radially from said curve South 72 °45'33" West 55.00 feet;
thence South 53 °33'19" West 844.53 feet;
thence South 41 °46'24" East 486.00 feet to the beginning of a tangent curve concave
' southwesterly and having a radius of 350.00 feet;
EXHIBIT A -4
Robert Bein William Frost & Associates
Temecula Town Center Regional Mall
Lumberman Parcel
December 3, 1996
JN 401027 -M4
Page 2 of 4
thence along said curve southeasterly 231.36 feet through a central angle of 37 °52'29';
thence tangent from said curve South 03 °53'55" East 180.01 feet to the beginning of a tangent
curve concave northwesterly and having a radius of 350.00 feet;
thence along said curve southwesterly 318.42 feet through a central angle of 52 °07'31';
thence tangent from said curve South 48 °13'36" West 1072.28 feet to the beginning of a tangent
curve concave northwesterly and having a radius of 394.00 feet;
thence along said curve southwesterly 171.91 feet through a central angle of 25 °00'00';
thence tangent from said curve South 73 °13'36" West 138.88 feet to the beginning of a tangent
curve concave northerly and having a radius of 394.00 feet;
thence along said curve westerly 309.45 feet through a central angle of 45 °00'00';
thence tangent from said curve North 61 °46'24" West 136.59 feet to the beginning of a tangent
curve concave southerly and having a radius of 35.00 feet;
thence along said curve westerly 54.98 feet through a central angle of 90 °00'00';
thence tangent from said curve South 28 °13'36" West 42.03 feet to the beginning of a tangent
curve concave northwesterly and having a radius of 281.00 feet;
thence along said curve southwesterly 166.90 feet through a central angle of 34 °01'48';
thence tangent from said curve South 62 °15'24" West 112.31 feet to the beginning of a tangent
curve concave southeasterly and having a radius of 35.00 feet;
thence along said curve southwesterly 41.72 feet through a central angle of 68 018102" to the
non - tangent intersection with a curve concave southwesterly and having a radius of 1267.00
feet in the northeasterly line of Ynez Road as described in a document recorded August 28,
1991 as Instrument No. 297822 of Official Records in said Office of the Riverside County
Recorder, a radial line of said curve from said point bears
South 64 °10'44" West;
thence non - tangent from said curve South 64 °14'07" West 15.06 feet to the non - tangent
intersection with a curve concave southwesterly and having a radius of 1044.00 feet in the
northeasterly line of Ynez Road (88.00 feet wide) as described in a deed recorded July 12, 1973
as Instrument No. 90991 of Official Records in said Office of the Riverside County Recorder,
Robert Bein William Frost & Associates December 3, 1996
Temecula Town Center Regional Mall JN 401027 -M4
Lumberman Parcel Page 3 of 4
a radial line of said curve from said point bears South 64 °14'07" West;
thence along said northeasterly line and curve southeasterly 283.28 feet through a central angle
of 15 °32'48';
thence South 10 °13'05" East 15.06 feet to the northwesterly line of said Tract No. 3334;
thence along said northwesterly line South 44 054'58" West 53.63 feet to the centerline of Ynez
Road as shown on said map of Tract No. 3334;
thence along said centerline South 10 °13'05" East 265.57 feet to the centerline of Proposed
Overland Drive as shown on said Lot Line Adjustment No. 95 -0111;
thence along said centerline through the following courses: North 79 °46'55" East 90.00 feet to
the beginning of a tangent curve concave southerly and having a radius of 1000.00 feet;
thence along said curve easterly 261.80 feet through a central angle of 15 °00'00';
thence tangent from said curve South 85 °13'05" East 683.49 feet to the beginning of a tangent
curve concave northerly and having a radius of 1000.00 feet;
thence along said curve easterly 117.80 feet through a central angle of 06 °44'57';
thence tangent from said curve North 88 °01'58" East 546.33 feet to said centerline of Margarita
Road;
thence leaving said centerline of Overland Drive, along said centerline of Margarita Road
through the following courses: North 01 *58'41" West 9.71 feet to the beginning of a tangent
curve concave easterly and having a radius of 2000.00 feet;
thence along said curve northerly 986.99 feet through a central angle of 28 °16'31';
thence tangent from said curve North 26 °1750" East 479.08 feet to the beginning of a tangent
curve concave westerly and having a radius of 2000.00 feet;
J
Robert Bein William Frost & Associates
Temecula Town Center Regional Mall
Lumberman Parcel
December 3, 1996
JN 401027 -M4
Page 4 of 4
thence along said curve northerly 1519.75 feet through a central angle of 43 °32'17';
thence tangent from said curve North 17 °14'27" West 293.55 feet to the TRUE POINT OF
BEGINNING;
CONTAINING: 64.19 Acres Gross, more or less.
59.48 Acres Net, more or less.
SUBJECT TO all covenants, rights, rights -of -way and easements of record.
~/1v ^r VC,
L.S. 3527 0}01 Lawrence L. Bacon, PIS 3527
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City of Temecula Furnished Infrastructure
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