HomeMy WebLinkAbout95-13 CC OrdinanceORDINANCE NO. 95-13
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TEMECULA, CALIFORNIA, APPROVING AN
AMENDMENT AND RESTATEMENT OF THE
DEVELOPMENT AGREEMENT BETWEEN THE CITY
OF TEMECULA AND BCUCCL VENTURE NO. 1
LIM[TED PARTNERSHIP and BCUCCL VENTURE NO. 2
LIM[TED PARTNERSHIP FOR SPECIFIC PLAN NO. 199,
PLANNING AREA 14, MARGARITA VILLAGE,
PLANNING APPLICATION NO. PA95-0078.
WHEREAS, Section 65864 et se�C . of the Government Code of the State of California
and Temecula City Resolution No. 91-52 authorize the execution of agreements establishing
and maintaining requirements applicable to the development of real property; and,
WHEREAS, in accordance with the procedure specified in said Resolution, BCI/CCL
VENTURE NO. 1 LIMITED PARTNERSHIP and BCI/CCL VENTURE NO. 2 LIMITED
PARTNERSHIP, a California limited partnership, hereinafter "BCI/CCL" has filed with the
City of Temecula an application for a Development Agreement which reflects an amendment
and re -statement of existing County Development Agreement #5 (hereinafter "this
Agreement"), of a residential housing subdivision on its property for Planning Area 14
located at Tracts 23100-1 (8 lots), 23100-2 (15 lots), 23100-3 (28 lots), 23100-4 (23 lots),
23101-2 (28 lots) and 23101-3 (9 lots), hereinafter the "Subject Property" which application
has been reviewed and accepted for filing by the Community Development Director; and,
WHEREAS, notice of the City's intention to consider adoption of this Agreement
with BCI/CCL, has been duly given in the form and manner required by law, and the
Planning Commission and City Council of said City have each conducted public hearings on
October 16, 1995 (Planning Commission), and November 14, 1995 (City Council) at which
time it heard and considered all evidence relevant and material to said subject.
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN AS
FOLLOWS:
Section 1. FINDINGS. The City Council hereby finds and determines, with
respect to this Agreement by and between the City of Temecula and BCI/CCL that it:
A. Is consistent with the objectives, policies, general land uses, and programs
specified in the City of Temecula's General Plan in that this Agreement makes reasonable
provision for the use of certain real property for residential development consistent with the
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General Plan's land use designation of low -medium density residential;
B. Is compatible with the uses authorized in, and the regulations prescribed for,
the land use district in which the Subject Property referred to therein is located as this
Agreement provides for residential development pursuant to a Specific Plan;
C. 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. Will not be detrimental to the health, safety, or general welfare because it
provides adequate assurances for the protection thereof;
E. Notice of the public hearing before the Planning Commission was published in
a newspaper of general circulation at least twenty (20) days before the Planning Commission
public hearing, and mailed or delivered at least twenty (20) days prior to the hearing to the
project applicant and to each agency expected to provide water, sewer, schools, police
protection, and fire protection, and to all property owners within six hundred feet (600')of
the property as shown on the latest equalized assessment roll;
F. Notice of the public hearing before the Planning Commission included the
date, time, and place of the public hearing, the identity of the hearing body, a general
explanation of the matter to be considered, a general description in text or by diagram of the
location of the real property that is the subject of the hearing, and of the need to exhaust
administrative remedies;
G. Notice of the public hearing before the City Council was published in a
newspaper of general circulation at least ten (10) days prior to the City Council public
hearing, mailed at least ten (10) days prior to the hearing to the project applicant, to each
agency expected to provide water, sewer, schools, police protection, and fire protection, and
to all property owners within six hundred feet (600') of the property as shown on the latest
equalized assessment roll;
H. Notice of the City Council hearing included the date, the time, and place of
the public hearing, the identity of the hearing body, the general explanation of the matter to
be considered, a general description in text or by diagram of the location of the real property
that is the subject of the hearing, and the notice of the need to exhaust administrative
remedies;
I. City Council approved this Agreement by Ordinance based upon evidence and
findings of the Planning Commission and new evidence presented at its hearing on this
Agreement, giving its reasons therefore and set forth their relationship between this
Agreement and the General Plan;
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K. The benefits that will accrue to the people of the City of Temecula from this
legislation and this Agreement are as follows:
Generation of municipal revenue;
1. Construction of Public infrastructure facilities;
2. Acceleration of both the timely development of subject property as well
as the payment of municipal revenue;
3. Enhancement of quality of life for surrounding residents with the timely
development through the elimination of dust and nuisance of partially improved lots;
fees; and,
4. Payment of Public Facility, fire, library, and traffic signal mitigation
5. Early completion of the recreation facility required of the project.
Section 2. APPROVAL. This Agreement, attached hereto and incorporated herein
by this reference as Attachment "1" is hereby approved. The Mayor is authorized and
directed to evidence such approval by executing this Agreement for, and in the name of, the
City of Temecula; and the City Clerk is directed to attest thereto; provided, however, that
this Agreement shall not be executed by the City until this Ordinance takes effect and the
City has received from the applicant two executed originals of said Agreement.
Section 3. SEVERABILITY. The City Council hereby declares that the
provisions of this Ordinance are severable and if for any reason a court of competent
jurisdiction shall hold any sentence, paragraph, or section of this Ordinance to be invalid,
such decision shall not affect the validity of the remaining parts of this Ordinance.
Section 4. NOTICE OF ADOPTION. The City Clerk shall certify to the adoption
of this Ordinance and shall cause the same to be posted as required by law.
Section 5. This Ordinance shall be in full force and effect thirty (30) days after its
passage. The City Clerk shall certify to the adoption of this Ordinance. The City Clerk
shall publish a summary of this Ordinance and a certified copy of the full text of this
Ordinance shall be posted in the office of the City Clerk at least five days prior to the
adoption of this Ordinance. Within 15 days from adoption of this Ordinance, the City Clerk
shall publish a summary of this Ordinance, together with the names of the Councilmembers
voting for and against the Ordinance, and post the same in the office of the City Clerk.
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Section 6. PASSED, APPROVED, AND ADOPTED this 28 day of November,
1995.
c
?. Stone,
ATTEST:
Ju Greek, CMC
City Clerk
[SEAL]
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE) SS
CITY OF TEMECULA
I, June S. Greek, City Clerk of the City of Temecula, California, do hereby certify
that the foregoing Ordinance No. 95-13 was duly introduced and placed upon its first reading
at a regular meeting of the City Council on the 14th day of November, 1995, and that
thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City
Council of the City of Temecula on the 28th day of November, by the following roll call
vote:
AYES: 5 COUNCILMEMBERS:
NOES: 0 COUNCILMEMBERS:
ABSENT: 0 COUNCILMEMBERS
Ju . Greek, CMC
City Clerk
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Birdsall, Lindemans, Parks, Roberts
Stone
None
None
' RECORDED AT THE REQUEST OF
City Clerk
City of Temecula
WHEN RECORDED RETURN TO
City Clerk
City of Temecula
43174 Business Park Drive
Temecula, CA 92590
(Space Above Line For Recorder's Use)
0 C T 1 01995
..
.
AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT
SPECIFIC PLAN NO. 199
PLANNING AREA 14
PLANNING APPLICATION No. 94-0078 and 94-0079
"Margarita Village"
BCl/CCL Venture No. I Limited Partnership
BCI/CCL Venture No. 2 Limited Partnership
AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT
' BETWEEN
CITY OF TEMECULA
and
BCl/CCL VENTURE NO. 1 LIMITED PARTNERSHIP
BCUCCL VENTURE NO. 2 LIMITED PARTNERSHIP
This Amendment and Restatement of Development Agreement ("Amendment") is
entered into to be effective on the date set forth in Recital N. and Paragraph 1.7 by and
among the City of Temecula, a California Municipal Corporation ("City") and BCI/CCL
Venture No. 1 Limited Partnership and BCl/CCL Venture No. 2 Limited Partnership, both
California Limited Partnerships (collectively "Owners"):
A. Pursuant to California Government Code Section 65864, et. Sea.
("Development Agreement Statutes"), Kaiser Development, a California Corporation and
' others and the County of Riverside, California ("County") entered into Development
Agreement No. 5 recorded in the Official Records of Riverside County, California on
November 7, 1988, as Instrument No.325515 ("Development Agreement No. 5").
B. Development Agreement No. 5 encompasses a project formerly located within
County approved Specific Plan No. 199 known as "Margarita Village", a mixed use
subdivision, (the "Original Project") to be developed on property which came within the
municipal boundaries of the City when the City incorporated on December 1, 1989. This
Agreement encompasses only a portion of the Original Project, located in Planning area 14,
Tract Nos. 23100-1 (8 Lots); 23100-2 (15 Lots); 23100-3 (28 Lots); 23100-4 (23 Lots); 23101-
2 (28 Lots); and 23101-3 (9 Lots) for a total of 111 Lots (collectively the "Project"). The
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balance of the Original Project covered by Development Agreement No. 5 not included
within the above referenced Project (*Lots") is not.amended or impacted by this Agreement.
C. Pursuant to the provisions of the Development Agreement Statutes, the City
became the successor -in -interest to the County under Development Agreement No. 5 upon
incorporation of the City.
D. Pursuant to Section 65868 of the Development Agreement Statutes, the City
and Owner propose to restate and amend Development Agreement No. 5 to substitute this
Agreement for the portion of Development Agreement No. 5 pertaining to the Project.
E. Pursuant and subject to the Development Agreement Statutes, the City'spolice
powers and City Resolution No. 91-52, City is authorized to enter into binding agreements
with persons having legal or equitable interest in real property located within the City's
municipal boundaries or sphere of influence thereby establishing the conditions under which
I
such property may be developed. in the City.
F. By electing to enter into this Agreement, City shall bind future Members of
the City Council of City by the obligations specified herein and further limit the future
exercise of certain governmental and proprietary powers of Members of the City Council.
Likewise, Owner shall bind its successors in interest to the obligations specified in this
Agreement.
G. The terms and conditions of this Agreement have undergone extensive review
by the staff of the City, the Planning Commission of the City, and the City Council of City
and have been found to be fair, just, and reasonable.
H. City finds and determines -that it will be in the best interest of its citizens and
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the public health, safety and welfarewill be served by entering into this Agreement.
I. All of the procedures and requirements of the California Environmental
Quality Act have been met with respect to this Agreement.
J. Riverside County ordinance No. 659, as adopted by the City, establishes
public facilities impact fees for residential development within City ("RSA Fees"). City
requires these revenues to mitigate the impact of development. City requires RSA Fees
from development of the Property in order to complete capital projects to mitigate the
impact of the development.
K. Development Agreement No. 5 provided for public facilities and services
impact fees ("County Impact Fees") higher than the RSA Fees. These higher fees,
particularly during the present economic situation, unduly discourage and delay development
and thereby prevent City from ever receiving the County Impact Fees or RSA Fees.
' Consequently, the City desires to reduce the County Impact Fees for residential
development in the Project to a level comparable to the RSA Fees.
L. City and Owner acknowledge that development of the Project will result in the
generation of municipal revenue, for public infrastructure facilities and the enhancement of
the quality of life, including recreation facilities for present and future residents of the City.
The benefits to the City and Owner contemplated by development of the Project
include:
(1) completion of the Recreation Facility required incident to the approval
of the Project;
(2) completion of vacant lots in Project;
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(3) payment of fire mitigation fees;
' (4) participation in special assessment districts to finance City and regional
infrastructure improvements; and
(5) additional real property tax increment from the completed Project.
M. The City and Owner knowledge that due to the present economic situation,
none of these benefits to the City are possible unless the Project proceeds with development.
N. City Council of City has approved this Agreement by Ordinance No.
adopted on , and effective on ("Effective Date"). On
the Effective Date, Development Agreement No. 5 shall be terminated as to the Project
only and of no further force and effect with respect to the Project, having been replaced by
this Agreement.
NOW, THEREFORE in consideration of the above Recitals and of the mutual
' covenants hereinafter contained and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged and incorporated herein, the parties agree:
1. Definitions. In this Agreement, unless the context otherwise requires, the
following words and phrases shall have the meaning set forth below:
1.1 "City"is the City of Temecula.
1.2 "City Public Facility Fee" is an amount to be established by Ordinance
of City.
1.3 "County" is the County of Riverside.
1.4 "County Public Facilities and Services Fee" means the County
Development Agreement Fee as set forth in Section 4.2 of Development Agreement No. 5.
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1.5 "Development Exactions" means any requirement of City in connection
' with or pursuant to any Land Use Regulation or Existing Development Approval for the
dedication of land, the construction of improvements or public facilities, or the payment of
fees in order to lessen, offset, mitigate or compensate for the impacts of development on
the environment or other public interests.
1.6 "Development Plan" means the Existing Development Approvals
defined in Section 1.8 below which are applicable to development of the Project.
1.7 "Effective Date" means the date upon which the Ordinance approving
this Agreement becomes effective, which date is thirty (30) days following the date the City
Council adopted such Ordinance absent a referendum challenge.
1.8 "Existing Development Approval(s)" means those certain development
approvals in effect as of the effective date of this Agreement with respect to the Property,
including, without limitation, the Existing Development Approvals" listed in Exhibit A,
attached hereto and incorporated herein by this reference, which were approved by the
County or the City.
1.9 "Financing District" means a Community Facilities District formed
pursuant to the Mello -Roos Community Facilities Act of 1982, (California Government
Code Section 53311 et M. as amended); an assessment district formed pursuant to the
Landscaping and Lighting Act of 1972, (California Streets and Highways Code Section 22500
et gQ, as amended); a special assessment district formed pursuant to the Improvement Act
of 1911, (California Streets and Highways Code Section 10102, as amended); or any other
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special assessment district existing pursuant to State law formed for the purposes of
' financing the cost of public improvements, facilities, services and/or public facilities fees
within a specific geographical area of the City.
1.10 "Interim Public Facilities Fee" means an amount of Three Thousand
Dollars ($3,000) per each residential unit developed in the Project.
1.11 "Land Use Regulations" means all ordinances, resolutions, codes, rules,
regulations, and official policies of City, governing the development and use of land
including without limitation, the permitted use of land; the density or intensity of use;
subdivision requirements; the maximum height and size of proposed buildings; the provisions
for reservation or dedication of land for public purposes; and the design, improvement, and
construction standards and specifications applicable to the development of the Property
listed on Exhibk B, attached hereto and incorporated herein by this reference, which are
' a matter of public record on the Effective Date of this Agreement. "Land Use Regulations"
does not include any County or City ordinance, resolution, code, rule, regulation, or official
policy, governing:
(a) The conduct of businesses, professions, and occupations;
(b) Taxes and assessments;
(c) The control and abatement of nuisances'
(d) The granting of encroachment permits and the conveyance of
rights and interests which provide for the use of or the entry upon public property;
(e) The exercise of the power of eminent domain.
1.12 "Owner" means the person having a legal or equitable interest in the
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Project;
' 1.13 "Project" is the development of the Property in accordance with the
Development Plan.
1.14 *property" is the real property described in Exhibit C, attached hereto
and incorporated herein by this reference.
1.15 "RSA Fee" means the fee established by County Ordinance No. 659,
as adopted by City.
1.16 "Subsequent Development Approvals" means all development approvals
required subsequent to the Effective Date in connection with development of the Property.
1.17 "Subsequent Land Use Regulation" means any Land Use Regulation
adopted and effective after the Effective Date of this Agreement.
2. Interest of Owner. Owner represents that it has the fee title interest in the
' Property and that all other persons holding legal or equitable interests in the Property are
to be bound by this Agreement.
3. Exhibits. The following documents are referred to in this Agreement attached
hereto, incorporated herein, and made a part hereof by this reference:
Exhibit Designation Description
A Existing Development Approvals
B Existing Land Use Regulations
C Legal Description of the Property
D Notice From Mortgagee
4. Term.
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4.1 The term of this Agreement shall commence on the Effective Date and
' shall extend for a period of ten (10) years thereafter, unless this Agreement is terminated,
modified or extended by circumstances set forth in this Agreement or by mutual consent of
the parties hereto.
4.2 This Agreement shall terminate and be of no force and effect upon the
occurrence of the entry of a final judgment or issuance of a final order after exhaustion of
any appeals directed against the City as a result of any lawsuit filed against the City to set
aside, withdraw, or abrogate the approval by the City Council of City of this Agreement.
. .7 LI 111
5.1 Right to Assien. The Owner shall have the right to sell, transfer, or
assign the Property in whole or in part (provided that no such partial transfer shall violate
the Subdivision Map Act, Government Code Section 66410, et ma.. or Riverside County
' Ordinance No. 460, as the same was incorporated by reference into the Temecula Municipal
Code by Ordinance No. 90 04,) to any person, partnership, joint venture, firm, or
corporation at any time during the term of this Agreement; provided, however, that any such
sale, transfer, or assignment shall include the assignment and assumption of the rights,
duties, and obligations arising under or from this Agreement and be made in strict
compliance with the following conditions precedent:
(a) No sale, transfer, or assignment of any right or interest under
this Agreement shall be made unless made together with the sale, transfer, or
assignment of all or a part of the Property. Owner agrees to provide specific notice
of this Agreement (which may be by specific exception listed in a Preliminary Title
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Report or Title Insurance Policy), including the record or document number, where
' a true and correct copy of this Agreement may be obtained from the Riverside
County Recorder.
(b) Concurrent with any such sale, transfer, or assignment, or within
fifteen (15) business days thereafter, the Owner shall notify City, in writing, of such
sale, transfer, or assignment and shall provide City with an executed agreement, in
a form reasonably acceptable to the City Attorney, by the purchaser, transferee, or
assignee and providing therein that the purchaser, transferee, or assignee expressly
and unconditionally assumes an the duties and obligations of the owner under this
Agreement.
Any sale, transfer, or assignment not made in strict compliance with the foregoing conditions
shall constituted a default by the Owner under this Agreement. Notwithstanding the failure
' of any purchaser, transferee, or assignee to execute the agreement required by Paragraph
(b) of this Subsection, the burdens of this Agreement shall be binding upon such purchaser,
transferee, or assignee, but the benefits of this Agreement shall not inure to such purchaser,
transferee, or assignee until and unless such agreement is executed.
5.2 Release. of Transferring Owner. Notwithstanding any sale, transfer, or
assignment, a transferring Owner shall continue to be obligated under this Agreement unless
such transferring Owner is given a release in writing by City, which release shall be provided
by City upon the full satisfaction by such transferring Owner of AU of the following
conditions:
(a) The Owner -no longer has a legal interest in an or any
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part of the Property except as a beneficiary under a deed of trust.
(b) The Owner is not then in default under this Agreement.
(c) The Owner or purchaser has provided City with the notice and
executed agreement required under Paragraph (b) of Subsection 5.1 above.
(d) The purchaser, transferee, or assignee provides City with security
equivalent to any security previously provided by Owner to secure performance of its
obligations hereunder.
(e) The Owner has reimbursed City for any and all City costs
associated with owner's transfer of all or a portion of the Property.
iig Public and Completion of Construction. The provisions of Subsection 5.1 shall not apply
to the sale or lease (for a period longer than one year) of any lot which has been finally
subdivided and is individually (and not in "bulk") sold or leased to a member of the public
or other ultimate user. Notwithstanding any other provisions of this Agreement, this
Agreement shall terminate with respect to any lot and such lot shall be released and no
longer be subject to this Agreement without the execution or recordation of any further
document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in
"bulk") sold or leased (for a period longer than one year) to a member of the public
or other ultimate user; and
(b) A Certificate of Occupancy has been issued for a building on a
lot, and the fees set forth in this Agreement have been paid.
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5.4 Subsequent Assignment. Any subsequent sale, transfer, or assignment
' after an initial sale, transfer, or assignment shall be made only in accordance with and
subject to the terms and conditions of this Section.
6. Magee Protection. The parties hereto agree that this Agreement shall not
prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the
Property or any portion thereof or any improvement thereon by any mortgage, deed of trust,
or other security device securing financing with respect to the Property. City acknowledges
that the lenders providing such financing may require certain Agreement interpretations and
modifications and agrees upon request, from time to time, to meet with the Owner and
representatives of such lenders to negotiate in good faith any such request for interpretation
or modification. City will not unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or modification is consistent with
' the intent and purposes of this Agreement. Owner shall reimburse City for any and all of
City's reasonable costs associated with said negotiations, interpretations, and modifications
and shall make reimbursement payments to City within thirty (30) days or receipt of an
invoice from City.
Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement
shall defeat, render invalid, diminish, or impair the lien of any mortgage on the Property
made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee has submitted a request in writing, in the
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form as attached hereto as Exhibit D, attached hereto and incorporated herein by this
reference, to the City in the manner specified herein for giving notices, shall be entitled to
receive written notification from City of any default by the Owner in the performance of the
Owner's obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee, in the form set forth
on Exhibit D, attached hereto and incorporated herein by this reference, requesting a copy
of any notice of default given to the Owner under the terms of this Agreement, City shall
endeavor to provide a copy of that notice of default to the Mortgagee within ten (10) days
of sending the notice of default to the 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) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
' foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall
have an obligation or duty under this Agreement to perform any of the Owner's obligations
or other affirmative covenants of the Owner hereunder, or to guarantee such performance,
provided however, that to the extent that any covenant to be performed by Owner is a
condition precedent to the performance of a covenant by City, the performance thereof shall
continue to be a condition precedent to City's performance hereunder, and further provided
that any sale, transfer, or assignment by any Mortgagee in possession shall be subject to the
provisions of Section 5.1 of this Agreement. The term of the Agreement shall not be
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extended based on the fact that a Mortgagee holds title to the Property for an or any part
' of the term of this Agreement.
(e) Any Mortgagee who comes into possession of the Property, or any
portion thereof, pursuant to subsection (d) above and who elects not to assume the
obligations of the Owner set forth herein shall not be entitled to any rights to develop which
have or may have vested as a result of this Agreement.
7. Bindine Effect of Agreement. The burdens of this Agreement bind and the
benefits of the Agreement inure to the successors -in -interest to the parties to it in
accordance with the provisions of and subject to the limitations of this Agreement.
understood and agreed by and between the parties hereto that the development of the
Project is a private development, that neither party is acting as the agent of the other in any
' respect hereunder, and that each party is an independent contracting entity with respect to
the terms, covenants, and conditions contained in this Agreement. No partnership, joint
venture, or other association of any Idnd is formed by this Agreement. The only relationship
between City and Owner is that of a government entity regulating the development of
private property and the owner of such property.
9. Chances in Proiect. No material change, modification, revision, or alteration
of Existing Development Approvals may be made without the prior approval by those
agencies of the City equivalent to the County agencies that approved the Existing
Development Approvals in the first instance (if the County had granted the approvals) or
by the same City agency that granted the Existing Development Approvals, (if the City
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granted the approval in connection with the adoption of this Agreement). City may expand
' the permitted uses for the Property without amending this Agreement so long as Owner or
Owner's successor retains his/her/their existing entitlements.
10. Timing of Development. The parties acknowledge that Owner cannot at this
time predict when, or at the rate at which the Property will be developed. Such decisions
depend upon numerous factors which are not within the control of Owner, such as market
orientation and demand, interest rates, absorption, completion and other similar factors.
Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo,
37 Ca1.3d 465 (1984), that the failure of the parties therein to provide for the timing of
development resulted in a later adopted initiative restricting the timing of development
resulted in a later adopted initiative restricting the timing of development to prevail over
such parties, it is the parties intent to cure that deficiency by acknowledging and providing
' that the Owner shall have the right to develop the Property in such order, at such rate, and
at such times as the Owner deems appropriate within the exercise of its subjective business
judgment, subject only to any timing or phasing requirements specifically set forth in the
Development Plan.
1Mu i I TIT1 . . aw
11.1 Hold Harmless. Owner agrees to and shall hold City, its officers, employees,
agents, and representatives harmless from liability for damage or claims for damage for
personal injury including death and claims for property damage which may arise from the
direct or indirect operations of the Owner or those of its contractor, subcontractor,
employee, agents, or other person acting on its behalf which relate to the Project (excluding
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actions by any party not related to Owner or authorized to act for Owner). Owner agrees
to and shall indemnify, protect, defend, and hold harmless the City and its officers,
employees, agents, and representatives from actions for damages caused or alleged to have
been suffered by reason of the operations referred to in this paragraph, regardless of
whether or not City prepared, supplied, or approved plans or specifications for the Project.
This indemnification requirement shall extend beyond the termination or expiration of this
Agreement. There are no intended or incidental third party beneficiaries to Owners
obligations under this paragraph 11.1.
11.2 County Litigation Concerning Agreement. In the event the County
seeks to challenge the right of City and Owner to enter into this Agreement or to terminate
Development Agreement No. 5, and institutes an action, suit, or proceeding to challenge this
Agreement or invalidate and/or enjoin the enforcement of this Agreement or the
' amendment of Development Agreement No. 5, City and Owner agree to cooperate and
participate in a joint defense in any action against the parties, their officers, employees, and
agents, from and against any and all such obligations, liability, suit, claim, loss, judgment,
or lien resulting from such action(s) brought by County, (but excluding actions to expunge
any lis pendens) and to share the costs associated with attorneys fees and costs that the
parties may incur as the result of any such action or lawsuit to challenge City and/or
Owner's legal authority to enter into this Agreement and/or terminate Development
Agreement No. 5. If the County action is against all impacted developments for which the
City has lowered the otherwise applicable County fees, then Owner's defense costs herein
shall be its pro rata share among all impacted landowners based on a faction, the numerator
F:\REAL\941\30064004\OEVELOD4.AGN
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of which is the total units owned by Owner which are subject to this Memorandum and the
' denominator is the total number of units within the City in which the City has lowered the
County Fees. If the County action is only against Owner with respect to this Agreement or
the amendment to County Development Agreement No. 5, then Owner's defense costs shall
be one -hundred percent (100%) of the attorneys fees and costs for defense of the litigation.
Damages (including the difference in the amount of any Interim Public Facilities Fee and
the amount of the County Development Agreement Fee paid by Owner to City pursuant to
the terms of this Agreement) shall be the responsibility of Owner. To the extent Owner has
paid Public Facilities Fees and/or County Development Agreement Fees to City of which
it is adjudicated (by final judgment of a court of competent jurisdiction) are lawfully the
funds of County, City shall pay such sums to County and Owner shall have such liability for
the payment of the difference between such fees reduced by the amount paid by the City.
City and Owner shall mutually agree on legal counsel to be retained to defend any such
' action(s) brought by the County as herein provided. City and Owner each reserve the right
to withdraw from the defense of the County litigation in the event the County prevails at
the trial level and there is an appeal. If either party withdraws after the trial and there is
an appeal, the remaining party shall pay all the costs and fees associated with said appeal.
11.3 Public Facilities Fees Shortfall. In the event the County prevails in any
legal action or other proceeding to challenge, set aside, or enjoin the enforcement of this
Agreement and the amendment of Development Agreement No. 5, and a trial court
determines by final judgment or order that the Owner and/or the City is liable to make up
any shortfall between the amount of the Interim Public Facilities Fee or the City Public
F:\REAL VK3\30064004\DEVEL004.AGN
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Facilities Fee, as the case may be, and the County Development Agreement Fee which
Iwould otherwise have been imposed pursuant to Development Agreement No. 5, then
Owner shall be responsible for paying any such shortfall subject to City's payment to
County of any amounts collected and held by City under the terms of .Development
Agreement No. 5 — in excess of that due City under Development Agreement No. 5. Such
payment by City and County shall reduce Owner's liability to County for payment of such
fees by a like amount paid by City.
11.4 Counly Prevails in Litigation - Severability. In the event the County
prevails at the trial court level against the City or the Owner as described in Section 11.2
of this Agreement, the amount of the Interim Public Facilities Fee or the City Public
Facilities Fee, as the case may be, shall revert to the amount of the County Development
Agreement Fee in effect at the time of entry of the final judgment in favor of the County,
' or such lesser amount as determined by the court. In the event this Agreement is held to
be invalid or unenforceable by a trial court of competent jurisdiction, the provisions set forth
in Sections 12.2 and 12.3 of this Agreement shall no longer be enforceable and from the
date of said final judgment or ruling of invalidity, Owner shall thereafter pay the County
Development Agreement Fee as provided in Section 4.2 of Development Agreement No.
5, or such lesser amount as determined by the court. AU other provisions of this
Agreement shall remain valid and enforceable notwithstanding said ruling of invalidity.
11.5 Third Party Litigation Concerning Agreement. Owner shall indemnify;
protect; defend, at its expense—including attorney's fees; and hold harmless City, its officers,
employees, or agents against any loss, cost, expense, claim, or counter -claim, complaint, or
10/04/95 17 17
proceeding to attack, set aside, void, or annul the approval of this Agreement or the
' approval of any permit granted pursuant to this Agreement brought by a third party other
than the County, which claim is based upon this Amendment. City shall promptly notify
owner of any such claim, action, or proceeding, and City shall cooperate in the defense.
If City fails to promptly notify Owner of any such claim, action, or proceeding, or if City fails
to cooperate in the defense, Owner shall not thereafter be responsible to defend, indemnify,
or hold harmless City. City may in its discretion participate in the defense of any such
claim, action, or proceeding.
11.6 Environmental Assurances. Owner shall indemnify, protect, defend
with counsel approved by City, and hold harmless City, its officers, employees, agents,
assigns, and any successor or successors to City's interest from and against all claims, actual
damages (including but not limited to special and consequential damages), natural resources
damages, punitive damages, injuries, costs, response remediation and removal costs, losses,
demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings,
interest, fines, charges, penalties and expenses (including but not limited to attorneys' and
expert witness fees and costs incurred in connection with defending against any of the
foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred, or suffered
by, or asserted against, City or its officers, employees, or agents arising from or attributable
to any repair, cleanup, or detoxification, or preparation and implementation of any removal
remedial, response, closure, or other plan (regardless of whether undertaken due to
governmental action) concerning any Hazardous Substance or hazardous wastes at any place
within the Property which is the subject of this Agreement. The foregoing indemnity
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extends beyond the term of this Agreement and is intended to operate as an agreement
' pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation,
and Liability Act, "CERCLA,"42 U.S.C. Section 9667(e), and California Health and Safety
Code Section 25364, and their successor statutes, to insure, protect, hold harmless, and
indemnify City from liability.
11.7 Release. Except for nondamage remedies, including the remedy of
specific performance and judicial review as provided for in Sections 19, 20, and 21 hereof,
City, for itself, its successors and assignees, hereby releases the City, its officers, agents, and
employees from any and all claims, demands, actions, or suits of any kind or nature arising
out of any liability, known or unknown, present or future, including, but not limited to, any
claim or liability, based or asserted, pursuant to Article 1, Section 19 of the California
Constitution, the Fifth Amendment of the United States Constitution, or any other law or
' ordinance which seeks to impose any other liability or damage, whatsoever, upon the City
because it entered into this Agreement or because of the terms of this Agreement.
11.8 Reservation of Riehts. With respect to Sections 11.1 to 11.7 herein,
City reserves the right to either (1) approve the attorney(s) which Owner selects, hires, or
otherwise engages to defend City hereunder, which approval shall not be unreasonably
withheld, or (2) conduct its own defense, provided, however, that Owner shall reimburse
City forthwith for any and all reasonable expenses incurred for such defense, including
attorney's fees, upon billing and accounting therefor.
11.9 Survival. The provisions of this Section 11.1 to 11.9, inclusive, shall
survive the termination of this Agreement.
F:\NEIL\863\30064004\OEVELOP4.AGM
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!�I
' 12.1 Intent. The parties acknowledge and agree that this Agreement confers
private benefits on the Owner which should be balanced by commensurate public benefits.
Accordingly, the parties intend to provide consideration to the public to balance the private
benefits conferred on the Owner by providing more fully for the satisfaction of the public
needs resulting from development of the Project.
MW 1 :hIyl1. 9 17 !( 1
(a) In Lieu of the County Development Agreement Fee, RSA Fee
or City Public Facility Fee, for a period of five (5) years commencing on the Effective Date,
Owner shall pay an Interim Public Facilities Fee of Three Thousand Dollars ($3,000.00)per
dwelling unit. The Interim Public Facilities Fee shall be paid as provided in Section 12.5
below. At the conclusion of the five (5) year period, Owner shall either continue to pay the
Interim Public Facilities Fee of Three Thousand Dollars ($3,000.00) per dwelling unit or
' such other public facilities fee as the City has then enacted and applied to residential
development projects in the City. Owner expressly acknowledges the existence and holding
in the case of Kaufman and Broad Central Valley. Inc. v. City of Modest , (1994), 25
Cal.App.4th 1577, as it applies to later adopted fees. Owner hereby waives for himself, and
for any successor thereto, the right to challenge the validity or amount of any such other
public facilities fees which are enacted and applied to residential development projects in
the City. Such waiver applies to the Project af= the first five (5) years of this Agreement.
Owner acknowledges and agrees that City would not have entered into this Agreement if
its application or operation would limit in any way the City's ability to develop and apply
F:\REAL\643\30064004\DEVELOV4.AGM
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a Comprehensive Public Facilities Fee Program to this Project following the first five (5)
' years of the term of this Agreement. Owner further acknowledges and agrees that the
waiver provided herein applies not only to this Agreement, but to any rights Owner may
have under any vesting map filed and deemed complete under the vesting maps statutes,
Government Code Section 66498.1 et seq. Finally, Owner agues that the institution of any
legal action by Owner, or any successor thereof, to challenge the validity, amount, or
application of any public facilities fee after the first five (5) years of this Agreement,
including paying such fees "under protest" pursuant to Government Code Section 66020 et
seq., shall constitute a material breach and default under this Agreement entitling the City
to summary termination thereof.
(b) Owner shall also pay all other lawful customary and typical
development exactions, for a Project of this size and nature, in existence as of the Effective
Date and throughout the term of this Agreement, including but not limited to, Fire, Traffic
Signal Mitigation, and K -Rat Fees pursuant to the provisions of City ordinances and
resolutions in the existence when paid.
(c) Owners shall provide the public benefits stated in Recital L.
hereof, which are incorporated herein and made a part hereof. As to the Recreation
Center, Owner shall be subject to the performance schedule set forth on Exhibit E, attached
hereto and incorporated herein by this reference.
12.3 Timing. Collection of any and all Interim Public Facilities Fees and/or
City Public Facilities Fees, if any,•required to be paid by Owner pursuant to this Agreement
shall be deferred until such time as a certificate of occupancy has been obtained for the first
F:\REAL\843\30064004\DEVELOV4.AGM
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production home built on the Property. Thereafter, the Interim Public Facilities Fees shall
' be paid at the time of issuance of building permits for each residential unit constructed on
the Property. Collection of any and all Interim Public Facilities Fees and/or City Public
Facilities Fees paid by the Owner for the model home units in surplus to those fees
contained herein shall be credited to Owner.
12.4 Other Anolicable Fees. The patties hereto agree that to the extent the
fees set forth below have not ben paid prior to the execution of this Agreement by both
parties, the Stevens Kangaroo Rat, library, fire, drainage, and traffic signal mitigation fees
remain applicable to the Project. In the event City establishes a permanent public facility
fee program which is specifically designed to include one or more of the fees listed above.
Owner, or Owner's successor, shall not be obligated to pay such fee or applicable part
thereof more than once.
' 12.5 Public Works. If Owner is required by this Agreement, or any other
obligation; to construct any public works facilities which will be dedicated to City or any
other public agency upon completion, and if required by applicable laws to do so, Owner
shall perform such work in the same manner and subject to the same requirements as would
be applicable to City or such other public agency should it have undertaken such
construction.
13.1 Limitations, Reservations and Excc2tions. Notwithstanding any other
provision of this Agreement, the following Subsequent Land Use Regulations shall apply to
F:\REAL\845\50064004WEVEIOD4.Ad
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the development of the Property:
' (a) Processing fees and charges imposed by City to cover the
estimated actual costs to City of processing applications for Subsequent Development
Approvals.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals, and any
other matter of procedure.
(c) Regulations imposing Development Exactions; provided,
however, that no such subsequently adopted Development Exactions shall be applicable to
development of the Property , unless such Development Exactions are applied uniformly to
development throughout the City. No such subsequently adopted Development Exaction
shall apply if its application to the Property would physically prevent development of the
' Property for the uses and to the density or intensity of development set forth in the
Development Plan. In the event any such subsequently adopted Development Exaction
fulfills the same purposes, in whole or in part, as the fees set forth in this Agreement, City
shall allow a credit against such subsequently adopted Development Exaction for the fees
paid under this Agreement to the extent such fees fulfill the same purposes.
(d) Regulations governing construction standards and specifications
including without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code, and Fire Code.
(e) Regulations which are in conflict with the Development Plan.
Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of
F:\REAL\943\300"004\DEVELOP4.AGN
10/04/95 23
development of the Property shall be deemed to conflict with the Development Plan and
shall therefore not be applicable to the development of the Property.
(f) Regulations which are in conflict with the Development Plan
provided Owner has given written consent to the application of such regulations to
development of the Property.
13.2 S bsMuent Development ARprovals. This Agreement shall not prevent
City, in acting on Subsequent Development Approvals, from applying the Subsequent land
Use Regulations which do not conflict with the Development Plan, nor shall this Agreement
prevent City from denying or conditionally approving any Subsequent Development
Approval on the basis of the Existing or Subsequent Land Use Regulations not in conflict
with the Development Plan.
13.3 Modification or Suspension by State or Federal Lw. In the event that
State or Federal laws or regulations enacted after the Effective Date of this Agreement
prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such State or Federal laws or regulations, provided, however, that this Agreement shall
remain in full force and effect to the extent it is not inconsistent with constitutional
provisions preventing application of such law or regulation, such laws or
regulations and to the extent such laws or regulations do not render such remaining
provisions impractical to enforce.
13.4 Regulation by Other Public Agencies. It is acknowledged by the parties
that other public agencies not within the -control of City possess authority to regulate aspects
F:\REAL\843\30064004\DEVELOV4.AGM
. 10/04/95 24
of the development of the Property separately from or jointly with City and this Agreement
does not limit the authority of such other public agencies.
13.5 Tentative Tract Man Extension. Pursuant to the provisions of Section
66452.6 of the Government Code, the tentative subdivision map(s) or tentative parcel
map(s) (vested or regular) approved as a part of implementing the Development Plan shall
be extended to expire at the end of the term of this Agreement.
13.6 Vesting Tentative AM. If any tentative or final subdivision map, or
tentative or final parcel map, heretofore or hereafter approved in -connection with the
development of the Property, is a vesting map under the Subdivision Map Act (Government
Code Section 66410, et IN. and Riverside County Ordinance No. 460, as the same were
incorporated by reference into the Temecula Municipal code by Ordinance No. 90-04, and
if this Agreement is determined by a final judgment to be invalid or unenforceable insofar
as it grants a vested right to develop to the Owner, then and to that extent the rights,
obligations, and protection afforded the Owner and City respectively, under the laws
and -ordinances applicable to vesting maps shall supersede provisions of this Agreement.
Except as set forth immediately above, development of the Property shall occur only as
provided in this Agreement, and the provisions in this Agreement shall be controlling over
conflicting provisions of law or ordinances concerning vesting maps.
� ..1, � � inn. L► i • im � . . � t. .. u i
14.1 Rights to Develop: Subject to the terms of this Agreement, including
F:\REAL\843\300"004\DEVELOD4.AGN 25
10/04/95
payment of the Interim Public Facilities Fee, the Owner shall have a vested right to develop
' the Property in accordance with, and to the extent of the Development Plan. The Project
shall remain subject to all Subsequent Development Approvals required to complete the
Project as contemplated by the Development Plan. Except as otherwise provided in this
Agreement, the permitted uses of the Property, the density and intensity of use, the
maximum height and size of proposed buildings, and provisions for reservation and
dedication of land for public purposes shall be those set forth in the Development Plan. In
exchange for the vested right to develop. pursuant to this Agreement, Owner expressly waives
for himself and for any successor thereto, the right to challenge or contest the validity of any
condition of approval attached to any entitlement which is a part of the Development Plan.
provided under the terms of this Agreement, including the payment of the Interim Public
Facilities Fee, the rules, regulations, and official policies governing permitted uses of the
Property, the density and intensity of use of the Property, the maximum height and size of
proposed buildings, and the design, improvement and construction standards and
specifications applicable to development of the Property shall be the Existing Land Use
Regulations. City shall exercise its lawful reasonable discretion in connection with
Subsequent Development Approvals in accordance with the Development Plan, and as
provided by this Agreement including, but not limited to, payment of the Interim Public
Facilities Fee and/or the City Public Facilities Fee, as the case may be. City shall accept
for processing, review, and action all applications for Subsequent Development Approvals,
and such applications shall be processed- in the normal manner for processing such matters.
f:\REAL\943\300"004\DEVELOP4.Arm
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1
City may, at the request of Owner, contract for planning and engineering consultant services
to expedite the review and processing of Subsequent Development Approvals, the cost of
which shall be borne by Owner.
14.3 Changes and Amendments. The parties acknowledge that refinement
and further development of the Project will require Subsequent Development Approvals and
may demonstrate that changes are appropriate and mutually desirable in the Existing
Development Approvals. In the event the Owner finds that a change in the Existing
Development Approvals is necessary or appropriate, the Owner shall apply for a Subsequent
Development Approval to effectuate such change. If approved, any such change in the
Existing Development Approvals shall be incorporated herein as addendum to this
Agreement and may be further changed from time to time as provided in this Section.
Owner, shall, within thirty (30) days of written demand by City, reimburse City for any and
' all reasonable costs, associated with any amendment or change to this Agreement that is
initiated by Owner or Owner's successor -- without regard to the outcome of the request for
amendment or change to this Agreement. Unless otherwise required by law, as determined
in City's reasonable discretion, a change to the Existing Development Approvals shall be
deemed "minor" and not require an amendment to this Agreement provided such change
does not:
(a) Alter the permitted uses of the Property as a whole, except as provided
in Section 9 hereof, or,
(b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or,
F:\REAL\843\30064004\DEVELOP4.Ap1
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27
(d) Delete a requirement for the reservation or dedication of land for
Ipublic purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or a supplemental
Environmental Impact Report pursuant to Section 21166 of the Public Resources Code.
14.4 Minimum Unit Size. Owner agrees that the units to be constructed on
the Property shall be a minimum of one thousand (1,000) square feet in size.
i ' yul 1. ! � 1 � � a - ail nr l • L-- a al • • :. � •
agree that on the Effective Date of this Agreement, Development Agreement No. S shall
be terminated and of no further force or effect as to this Project only, having been replaced
by this Agreement.
(a) Pursuant to City Resolution No. 91-52, as it may be subsequently
amended, City shall review this Agreement at least once during every twelve (12) month
period from the Effective Date of this Agreement. The Owner or successor shall reimburse
City for the reasonable and necessary costs of this review, within thirty (30) days of written
demand from City.
(b) During each periodic review by City, the Owner is required to
demonstrate good faith compliance with the terms of this Agreement. The Owner agrees
to furnish such evidence of good faith compliance as City in the exercise of its discretion
may require.
16. Financing District. Upon the request of Owner, the parties shall cooperate
in exploring the use of special assessment districts and other similar Financing Districts for
F:\REAL\843\30064004\OEVELOG4.AGM
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C
the financing of the construction, improvement, or acquisition of public infrastructure,
facilities, lands, and improvements to serve the Project and its residents, whether located
within or outside the Property. It is acknowledged that nothing contained in this Agreement
shall be construed as requiring City or City Council to form such a district or to issue or sell
bonds.
17. Amendment or Cancellation of Agreement. This Agreement may be amended
or canceled in whole or in part only by mutual consent of the parties and in the manner
provided for in Government Code Sections 65868, 65867 and 65867.5. If an Amendment
is requested by the Owner or its successor, the Owner/successor agrees to pay City any
Development Agreement Amendment fee then in existence as established by City Council
Resolution, or if no such fee is established, to reimburse City for the actual and reasonably
necessary costs of reviewing and processing said Amendment within thirty (30) days of
written demand from City—without regard to City's action on such amendment.
18. Enforcement. Unless amended or canceled as herein provided, this
Agreement is enforceable by any party to it notwithstanding a change in the applicable
general or specific plan, zoning, subdivision, or building regulations adopted by the City
which alter or amend the rules, regulations, or policies governing permitted uses of the land,
density, design, improvement, and construction standards and specifications.
19. Events of Default. Owner is in default under this Agreement upon the
happening of one or more of the following events or conditions:
(a) If a warranty, representation, or statement made or furnished by Owner
to City is false or proves to have been false in any material respect when it was made;
is\REAL\643\30064004\DEVELOV4.AGM
10/04/95
29
(b) More than forty-five (45) days have passed since City's making of a
' written request to Owner for payment or reimbursement for a fee or service authorized or
agreed to pursuant to this Agreement.
(c) A finding and determination by City that upon the basis of substantial
evidence the Owner has not complied in good faith with one or more of the terms or
conditions of this Agreement.
20. Procedure Upon Default.
(a) Upon the occurrence of an event of default, City may terminate or
modify this Agreement in accordance with the procedure adopted by the City.
(b) City does not waive any claim of defect in performance by Owner
implied if on periodic review the City does not propose to modify or terminate this
Agreement.
(c) Non-performance shall not be excused because of a failure of a third
' person.
(d) Non-performance shall be excused only when it is prevented or delayed
by acts of God or an emergency declared by Governor.
(e) All other remedies at law or in equity which are not otherwise provided
for in this Agreement or in City's regulations governing development agreements are
available to the parties to pursue in the event there is a breach.
21. Damages Upon Termination. It is acknowledged by the parties that City
would not have entered into this Agreement if it were to be liable in damages under or with
respect to this Agreement or the application thereof. Owner, for itself or any successor
F:\REAL\843\30064004\DEVELOP4.AGM
10/04/95 30
thereto, expressly waives the right to seek damages against the City or any officer, employee,
' or agent thereof, for any default or breach of this Agreement. As a matter of agreement
between BCl/CCL No. 1 and BCUCCL No. 2, all costs are associated with indemnity or
liabilities described hereunder, shall be divided between such parties sixty percent (60%)
to BCI/CCL No. 2 and forty percent (40%) to BCI/CCL No. 1.
In general, each of the parties hereto may pursue any remedy at law or equity
available for the breach of any provision of this Agreement, except that City, and its officers,
employees and agents, shall not be liable in damages to Owner or to any assignee,
transferee of Owner, or any other person, and Owner covenants not to sue for or claim any
damages for breach of that Agreement by City.
22. Attorney's Fees and Costs. If legal action by either party is brought because
of breach of this Agreement or to enforce a provision of this Agreement, the prevailing
' party is entitled to reasonable attorneys fees and court costs.
23. Notices. All notices required or provided for under this Agreement shall be
in writing and delivered in person or sent by certified mail, postage prepaid and presumed
delivered upon actual receipt by personal delivery or within three (3) days following deposit
thereof in United States Mail. Notice required to be given to City shall be addressed as
follows:
To City: City of Temecula
43174 Business Park Drive
Temecula, CA 92590
Attn: City Clerk
With A copy to: Peter M. Thorson, Esq.
City Attorney
Burke, Williams & Sorensen
f:\REAL\B43\70066004\DEVEL004.AGN 31
10/04/95
611 W. Sixth Street, Suite 2500
Los Angeles, CA 90017
Notices required to be given to Owner shall be addressed as follows:
To Owner: BCl/CCL Venture No. 1 and
BCl/CCL Venture No. 2
c/o CCL Chardonay Hills, Inc.
2010 Main Street, Suite 960
Irvine, CA 92714
Attention: Joe Richter
With A copy to: Palmieri, Tyler, Wiener, Wilhelm & Waldron
2603 Main St., Fast Tower, Suite 1300
Irvine, CA 92714
Attention: Gregory N. Weiler, Esq.
A party may change the address by giving notice in writing to the other party and thereafter
notices shall be addressed and transmitted to the new address.
24. ,CgMration. City agrees that it shall accept for processing and promptly take
' action on all applications, provided they are in a proper from and acceptable for required
processing for discretionary permits, tract or parcel maps, or other land use entitlement for
development of the Project in accordance with the provisions of this Agreement. City shall
cooperate with Owner in providing expeditious review of any such applications, permits, or
land use entitlement and, upon request and payment of any costs and/or extra fees
associated therewith by Owner, City shall assign to the Project planner(s), building
inspector(s), and/or other staff personnel as required to insure the timely processing and
completion of the Project.
25. Rules of Construction and Miscellaneous Terms.
F:\REAL\643\30064004\DEVEL0V4.A0M
10/04/95 32
(a) The singular includes the plural; the masculine gender includes the
feminine; "shall" is mandatory, "may" is permissive.
(b) If there is more than one signer of this Agreement their obligations are
joint and several.
(c) The time limits set forth in this Agreement may be extended by mutual
written consent of the parties in accordance with the procedures for adoption of the
Agreement.
(d) This Agreement is made and entered into for the sole protection and
benefit of the parties and their successors and assigns. No other person, including but not
limited to third party beneficiaries, shall have any right of action based upon any provision
of this Agreement.
26. Entire Agreement. This Agreement and the exhibits hereto contain the
complete, final, entire, and exclusive expression of the agreement between the parties
hereto, and is intended by the parties to completely state the agreement in full. Any
agreement or representation respecting the matters dealt with herein or the duties of any
party in relation thereto not expressly set forth in this Agreement shall be null and void.
27. Coun arts. This Agreement may be executed in multiple counterparts, each
of which so fully executed counterpart shall be deemed an original. No counterpart shall
be deemed to be an original or presumed delivered unless and until the counterpart
executed by the other party to this Agreement is in the physical possession of the party
seeldng enforcement thereof.
28. Authority to Execute. Each party hereto expressly warrants and represents
f:\REAL\943\30064004\DEVEL074.AGM
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33
that he/she/they has/have the authority to execute this Agreement on behalf of
' his/her/their corporation, partnership, business entity, or governmental entity and warrants
and represents that he/she/they has/have the authority to bind his/her/their entity to the
performance of its obligations hereunder.
IN WITNESS WHEREOF this Agreement has been executed by the authorized
representatives of the parties hereto.
•City.
City of Temecula
By:
Attest:
June S. Greek, City Clerk
I
Approved as to form:
Peter M. Thorson, City Attorney
Jeffrey E. Stone, Mayor
'Owner
BCI/CCL VENTURE NO. 1, L.P.
California limited partnership
and BCI/CCL VENTURE NO. 2, L.P.,a
California limited partnership
BY: CCL CHARDONAY HILLS, INC.,
a California corporation, their
General Partner
By
Its
[Notary Required]
F:\REAL\843\30064004\DEVELOV4.AGM
10/04/95 34
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On October 11. 1995 . before me, Arleen D. Sales,
Notary Public, personally appeared David Chang
personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the
instrument.
WrrNEss my hand and official seal.
ARLEEN D. SUES
A y comm. t 95W7
NOTAW PUBLIC-C"OM
> orwe, 04uft ..
Ky Cemm -,^-n Ln.30.19%
L j_ I �Z
Signature of Notary
❑ Individual
['Corporate Officer
Title(s)
President
(� Partner(s)
❑ Limited O'General
❑ Attomey-In-Fact
❑ Trustee(s)
❑ Guardian/ Conservator
❑ Other
4tGN£R Is REPREsEN iN :
CCL Chardonnay Hills, Inc.,
a California corporation,
General Partner of BCI/CCL
Venture No. 1, L.P. & BCI/CCL
Venture No. Z L.P.
DESCIUMON OF ATTACHED
DOCUMENT
Amendment and Restatement of
Development Agreement
Specific Plan Area 14
Planning Application No. 94-0078
and 94-0079
"Margarita Village
NumpER OF PAGE
Forty-Four(44)
' EXISTING DEVELOPMENT APPROVALS
General Plan - Low -Medium Density Residential
iecific Plan - State Subdivision Map Act No. 460, Specific Plan
No. 199 (Margarita Village), Ordinance No. 348.
Development ereemeM - Development Agreement No. 5
t and Divisions - Tentative Tract 22716
Final Tract Map Nos. 23101-2; 23101-3; 23100-1; 23100-2; 23100-3;
23100-4
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EXHIBIT B
' EXISTING LAND USE REGULATIONS
General Plan Land Use designation is Low -Medium Density Residential.
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EXHMMC
' LEGAL DESCRIPTION
PARCEL 1:
Lots 1 through 9 of Tract No. 23101-3, as shown by Map on file in Book 249, pages 61 and
62 of Maps, Records of Riverside County, California.
Lots 54 through 59, inclusive, and 67 and 68 of Tract No. 23100-1, as shown by Map on file
in Book 214, pages 5 through 11 of Maps, records of Riverside County, California;
EXCEPTING THEREFROM, all mineral, oil and gas rights below the depth of 500.00 feet
below the surface of said land without the right of surface entry as reserved by Kaiser
Development Company, a California corporation, in Deed recorded November 13, 1987 as
Instrument No. 326397 of Official Records of Riverside County, California.
PARCEL 4:
Tots 1, 2, 7, 10, 13, and 14 of Tract No. 23100-2, as shown by Map on file in Book 214,
pages 12 through 15 of Maps, records of Riverside County, California;
' EXCEPTING THEREFROM, all mineral, oil and gas rights below the depth of 500.00 feet
below the surface of said land without the right of surface entry as reserved by Kaiser
Development Company, a California corporation, in Deed recorded November 13, 1987 as
Instrument No. 326397 of Official Records of Riverside County, California.
Lots 1 through 23 of Tract No. 231004, as shown by Map on file in Book 249, pages 57
through 60 of Maps, records of Riverside County, California;
Lots 1 through 7, 60 through 68, and 97 through 108, inclusive, of Tract No. 23101-2 as
shown by Map on file in Book 228, pages 15 through 21, inclusive, of Maps, records of
Riverside County, California;
EXCEPTING THEREFROM, all mineral, oil and gas rights below the depth of 500.00 feet
below the surface of said land without the right of surface entry as reserved by Kaiser
Development Company, a California corporation, in Deed recorded November 13, 1987 as
Instrument No. 326397 of Official Records of Riverside County, California and as deeded
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11/06/95
to Midland Investment Corporation in document recorded April 15, 1988 as Instrument No.
' 99500 of Official Records of Riverside County, California.
ALSO EXCEPTING FROM SAID Lots 110 and 111 any and all oil, oil rights, minerals,
mineral rights, natural gas rights and other hydrocarbons by whatsoever name known,
geothermal steam and all products derived from any of the foregoing, that may be within
or under said property, together with the perpetual right of drilling, mining, exploring and
operating therefor and storing in and removing the same from said property or any other
land, including the right to whipstock or directionally drill and mine from lands other than
said property, oil or gas wells, tunnels and shafts into, through or across the subsurface of
said property, and to bottom such whipstocked or directionally drilled wells, tunnels and
shafts under and beneath or beyond the exterior limits thereof, and to redrill, retunnel,
equip, maintain, repair, deepen and operate any such wells or mines without, however, the
right to drill, mine, store, explore or operate through the surface or upper 500 feet of the
subsurface of said property, purportedly reserved by Bramalea California, Inc., in deeds
recorded October 5, 1994 as Instrument No. 385827 and 385828, both of Official Records
of Riverside County, California.
Lots 2 through 28, inclusive, and 60 through 67 inclusive, of Tract No. 23100-3, as shown by
Map on file in Book 222 Pages 44 through 49 of Maps, records of Riverside County,
California;
' EXCEPTING THEREFROM, all mineral, oil and gas rights below the depth of 500.00 feet
below the surface of said land without the right of surface entry as reserved by Kaiser
Development Company, a California corporation, in Deed recorded November 13, 1987 as
Instrument No. 326397 of Official Records of Riverside County, California.
Lot 1 of Tract No. 23100-3 as shown by Map on file in Book 222 pages 44 through 49 of
Maps, records of Riverside County, California, together with that certain portion of Lot 39,
Tract No. 20879, as shown by Map on file in Book 169 pages 16 through 19 of Maps,
records of Riverside County, California, more particularly described as follows:
BEGINNING at the most westerly comer of said Lot 1, said comer also being a point on
the Northeasterly line of said Lot 39; thence Southeasterly, along the Southwesterly line of
said Lot 1, and the Northeasterly line of said Lot 39, South 36° 06' 41" East (South 36"
06'31 "East per M.B. 169/16-19), a distance of 80.00 feet to the Southwest corner of said Lot
1;
thence leaving said Southwesterly line of said Lot I and the Northeasterly line of said Lot
39, South 53° 53'19' West, a distance of 88.46 feet;
thence North 080 06'32" West, a distance of 86.18 feet;
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thence North 17°51101"west, a distance of 50.84 feet to a point on the Northerly line of said
' Lot 39;
thence Northeasterly, along the Northerly line of said Lot 39, North 67° 31'01"Fast (North
67° 31'11"Fast per M.B. 169/16-19) a distance of 33.00 feet to the most Northerly corner
of said lot 39, said point also being a point on the Southwesterly line of Lot 2 of said Tract
No. 23100-3;
thence Southeasterly along the Southeasterly line of said Lot 39 and the Southwesterly line
of said Lot 2, South 36°06'41"Fast (South 36006'3lTmt per M.B. 169/16-19), a distance
of 36.59 feet to the most Westerly corner of said Lot 1, said point also being the point of
beginning. .
Lot 68 of Tract No. 23100-3 as shown by Map on file in Book 222 pages 44 through 49 of
Maps, records of Riverside County, California, together with that portion of Parcel 1 of
Parcel Map No. 22554, as shown by Map on file in Book 147, pages 94 to 98 thereof of
Parcel Maps, records of Riverside County, California, more particularly described as follows:
Beginning at the Northeast corner of said Lot 68, said corner being a point on a curve
concave to the Southwest having a radius of 1770.00 feet to which point a radial line bears
North 52° 35'24"Fast;
thence Southeasterly along the Easterly line of. said Lot 68 and along said curve through a
central angle of 2° 25'130 an arc length of 74.77 feet to the true point of beginning;
thence Southeasterly, leaving said Easterly line, South 34° 59'23" East, a distance of 17.46
feet;
thence South 55°29'05"West a distance of 0.09 feet to the Southeast corner of said Lot 68,
said corner being a point on a curve concave to the Southwest having a radius of 1770.00
feet to which point a radial line bears North 55° 34' 31" East;
thence Northwesterly, along the Easterly line of said Lot 68 and along said curve through
a central angle of 00 33'54",an arc length of 17.45 feet to the true point of beginning.
F:\REAL\843\3OO W4\OEVELOP4.ACR
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' REQUEST FOR NOTICE OF DEFAULT UNDER DEVELOPMENT AGREEMENT
U- Inual �i-'nal R.
:n llual 11 :-� ual
To: City Clerk and Planning Director, City of Temecula
Pursuant to Section 6(b) and (c) of the above -referenced Amendment and
Restatement of Development Agreement, request is hereby made by
as Mortgagee for the property (or portion thereof) to receive copies of any Notice of
Default issued by City against Owner in accordance with the terms and conditions of such
Amendment and Restatement of Development Agreement. Copies of any such Notices
should be mailed to the following address:
(Mortgagee)
(Person/Department)
(Address)
(City/State/Zip)
(Telephone No.)
A copy of this Notice should be filed with the project file to insure proper and timely
notice is given. Under the teams of said Amendment and Restatement of Development
Agreement, as Mortgagee is entitled to receive copies of any Notice of Default within ten
(10) days of sending any such Notice to Owner. Failure to send any such Notice may have
serious legal consequences for the City.
This request is to remain in effect until revoked by as Mortgagee or the Amendment
and Restatement of Development Agreement is terminated.
The person executing this document on behalf of said Mortgagee warrants and
represents that the entity he/she represents is a bonafide Mortgagee of said property and
is entitled to receive copies of Notices of Default under said Amendment and Restatement
of Development Agreement.
F:\REAL\943\30064004\DEVELOP4.A011
10/04/95
The undersigned declares the above information is we and correct under the penalty
' of perjury under the laws of the State of California.
Dated: 1995.
MORTGAGEE
By:
(signature)
(printed name)
Its:
(title)
[Notary required]
This Notice is to be sent to both the City Clerk and Planning Director for the City of
Temecula at 43174 Business Park Drive, Temecula, CA 92590 or such other location as
Temecula City Hall may be located in the future.
F:\REAL\843\3OW4004\DEVELOP4.AG11
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1
PERFORMANCE SCHEDULE FOR RECREATION CENTER
[See attached]
F:AREA1\a43\30064004\DEVELOP4.AGN
10/04/95
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