HomeMy WebLinkAbout02-10 CC OrdinanceORDINANCE NO. 02-10
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TEMECULA ADOPTING A MITIGATED NEGATIVE
DECLARATION FOR, AND APPROVING THE DEVELOPMENT
AGREEMENT WITH, ADVANCED CARDIOVASCULAR
SYSTEMS, INC, A SUBSIDIARY OF GUIDANT CORPORATION
(PLANNING APPLICATION NO. 02-0217)
WHEREAS, Section 65864 et seq. 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 City Resolution 91-52 and the
Development Code, the City of Temecula has initiated said Development Agreement with
Advanced Cardiovascular Systems; and,
WHEREAS, notice of the City's intention to consider adoption of this Agreement with
Advanced Cardiovascular Systems 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, 2002 and October 22, 2002, respectively, at which time it heard and
considered ail 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 Advanced Cardiovascular
Systems, Inc, that:
A. The Development Agreement is consistent with the objectives, policies,
general land uses, and programs specified in the City of Temecula General Plan in that the
Development Agreement makes reasonable provision for the use of certain real property for
industrial, commercial and residential development; and
B. The Development Agreement complies with the goals and objectives of
the Circulation Element of the General Plan and the traffic impacts of the development over the
period of the Development Agreement will be substantially mitigated by the mitigation measures
and conditions of approval imposed; and,
C. The project subject to the Development Agreement is compatible with the
uses authorized in, and the regulations prescribed for the zoning district in which the Property
subject to the Development Agreement is located, and that this Development Agreement is
consistent with good planning practices by providing for the opportunity to develop the Property
consistent with the General Plan; and,
D. 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; and,
E. The Development Agreement will not be detrimental to the health, safety,
or general welfare because it provides adequate assurances for the protection thereof; and,
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F. Notice of the public hearing before the Planning Commission was
published in a newspaper of general circulation at least ten (10) days before the Planning
.Commission public hearing, and mailed or delivered at least ten (10) days prior to the hearing to
· the project applicant and to each agency expected to provide water, sewer, and police and fire
protection, and to all property owners within six hundred feet (600') of the property as shown on
the latest equalized assessment roll; and,
G. 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 and text or diagram of the
location of the real property that is the subject of the hearing, and of the need to exhaust
administrative remedies; and,
H. The benefits that will accrue to the people of the City of Temecula from
this legislation and this Development Agreement are an increase in higher paying jobs and
increased local employment opportunities from an established local company. These
community benefits also satisfy the requirements of Municipal Code Section 17.08.050.A.
Section2, APPROVAL. The Development Agreement, attached hereto and
incorporated herein by this reference as Exhibit "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. ENVIRONMENTAL DETERMINATION. A detailed Initial Environmental
Study (lES) checklist was prepared for this project. Based upon the analysis contained in the
checklist, a Mitigated Negative Declaration was prepared. The analysis identified potentially
significant impacts in the areas of Aesthetics, Biologic Resources, Cultural Resources, Geology
and Soils, Noise, Transportation/Traffic, and Utilities and Service Systems. However, because
of the mitigation measures identified in the lES, all the potential impacts will be mitigated to a
level of insignificance. The lES and Notice of Intent to Adopt a Negative Declaration was
circulated for public review between April 1 and April 30, 2002. As a result, the City Council
hereby adopts a Mitigated Negative Declaration, including the Mitigation Monitoring Program,
for this project. The approved Mitigation Monitoring Program is contained in Exhibit "2".
Section 4. 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 5. 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 6. 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 7.
PASSED, APPROVED AND ADOPTED this 12t' day of November, 2002.
ATTEST:
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Susan Jones, City Clerk of the City of Temecula, do hereby certify that the foregoing
Ordinance No. 02-10 was duly introduced and placed upon its first reading at a regular meeting
of the City Council on the 22nd day of October, 2002, and that thereafter, said Ordinance was
duly adopted and passed at a regular meeting of the City Council on the 12t' day of November
2002, by the following vote, to wit:
AYES:
4 COUNCILMEMBERS: Comerchero, Naggar, Pratt, Roberts
NOES: 0 COUNCILMEMBERS: None
ABSENT: 1 COUNCILMEMBERS: Stone
ABSTAIN: 0 COUNCILMEMBERS: None
/~~ Sus~an nes, C~--'~=~M C
~.~ City Clerk
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· DEVELOPMENT AGREEMENT
between
THE CITY OF TEMECULA,
a California Municipal Corporation
and
ADVANCED CARDIOVASCULAR SYSTEMS, INC.,
a Subsidiary of Guidant Corporation
TABLE OF CONTENTS
SECTION AND TITLE
PAGE NO.
Recitals .......................................................................................................... 1
1. Definitions .................................................................................................. 4
2. Development of Project .............................................................................. 8
2,1. Ownership Interests ......................................................................... 8
2.2. Vested Rights ................................................................................... 8
2.3. Project .............................................................................................. 8
2.3.1, Floor Area Ratio ........................................................................... 8
2.3.2. Location and Size of Improvements ............................................. 9
2.3.3. Design Guidelines; Architectural and Landscape Palette ............. 9
2,3.4, Height Limitation ........................................................................... 9
2.3.4.1. Rooftop Equipment ................................................................ 9
2.3.4.2. Underground Structure .......................................................... 9
2.4. Allowed Uses ................................................................................... 9
2.4..1. Consistent Development Standards ............................................ 10
2.4.2. Use for Parking ............................................................................ 10
2.5. Perimeter Fencing and Landscaping ............................................... 10
2.6, Access ................................................................................ ; ............ 10
2.7. Modifications ................................................................................... 10
2.8. Off-Site Public Improvements .......................................................... 10
2.9. On-Site Public Improvements.,,; ...................................................... 10
2.10.Dedication or Reservation Requirements ........................................ 11
2.10.1. Public Utility Easements ............................................................ 11
2.10,2. Motor Car Parkway .................................................................... 11
2.10.3. Margarita Road .......................................................................... 11
2.11, Motor Car Parkway .......................................................................... 11
2.12. Margarita Road ................................................................................ 11
2.12.1. Restriction on Improvements ..................................................... 11
2.12,2, Acquisition ................................................................................. 11
2,12.3. Compliance with Landscaping Standards ................................. 12
2.12.4. Compliance with Height and Other Requirements ..................... 12
2.13. Pedestrian Bddge ........................................................................... 12
2.13.1. Owner's Discretion .................................................................... 12
2.13.2. Location and Design; City Review ............................................. 12
2.13.3. Grant of Property Interest; Permits ............................................ 12
2.13.4. Costs, Ownership and Maintenance .......................................... 13
2.14. Development Plans ........................................................................ 13
2.14.1. Processing Application .............................................................. 13
2.14.2. Approval of Application .............................................................. 13
2.14.3. Phasing ............................... ~ ..................................................... 14
SECTION AND TITLE PAGE NO.
2.14.4. Environmental Review ............................................................... 14
2.14.5. Development Plan Modifications ............................................... 14
2.15. Term of Map .................................................................................... 14
2.16. Substitute Tentative Pamel Map ...................................................... 14
2.17. Lot Line Adjustment ......................................................................... 14
3. Development Fees .................................................................................... 15
3.1. Development Processing Fees ........................................................ 15
3.2. Expedited Review ............................................................................ 15
3.3. Development Impact Fees .............................................................. 15
3,4. Landscaping Bond ........................................................................... 15
4. Rules and Regulations .............................................................................. 15
4.1. Applicable Rules and Laws ............................................................. 15
4.2. Applicability to Future Development Approvals ......... .. ..................... 16
4.3. Model Codes ................................................................................... 16
4.4. Future Enactments .......................................................................... 16
4.5. Enforceability.. ................................................................................. 16
4.6. Representation ................................................................................ 17
4.7. Amendment to Rules ....................................................................... 17
4.8. Future Mitigation Measures ............................................................. 17
4.9. Districts ........................................................................................... 17
4.10.Phasing ........................................................................................... 17
4.11.Non-conformities ............................................................................. 17
4.12.Abatement and Revocation after the Term
of the Agreement Lapses ................................................................ 18
4.13. Other Agencies ................................................................................ 18
5. Term .......................................................................................................... 18
5.1. Commencement .............................................................................. 18
5.2. Duration ........................................................................................... 18
5.3. Termination ..................................................................................... 18
5.3.1. Termination under Agreement ..................................................... 18
5.3.2. Completion of Project .................................................................. 18
5.3.3. Judgment ..................................................................................... 18
5.4. Effect of Termination ....................................................................... 19
5.5. Effect of Agreement on Title ............................................................ 19
Amendments; Administration of Agreement ............................................. 19
6.1. Amendment .............. ; ...................................................................... 19
6.2. Operating Memoranda .................................................................... 19
6.$. Administration of Agreement ........................................................... 19
Amendment to Authorizing Statute or Change in Law .............................. 20
7.1. Development Agreement Legislation ............................................... 20
7.2. Change in'State or Federal Law .................................................. :...20
7.2.1. Notice ........................................................................................... 20
7.2.2. Hearing and Determination ........................................................... 20
Transfers and Assignments ..................................................................... 20
8.1. Transfers ........................................................................................ 20
8.2. Assignment ..................................................................................... 21
2
SECTION AND TITLE PAGE NO.
8.2.1. Assignment to a Guidant Assignee ........................................... 21
8.2.2. Assignment Before Completion of Phase 1 ............................... 21
8.2.3. Assignment After Completion of Phase 1 .................................. 22
8.2.4. Notice and Acknowledgement ................................................... 22
8,2.5. Pedestrian Bridge ...................................................................... 22
9. Representations and Warranties ............................................................ 22
9.1. City's Representations and Warranties .......................................... 22
9.2. Owner's Representations and Warranties ...................................... 23
10. Compliance Review ................................................................................ 24
10.1. Annual Review ................................................................................ 24
10.1.1. Good-Faith Compliance ........................................................... 24
10.1.2. Substantial Compliance ............................................................ 24
10.2. Failure to Conduct Annual Review ................................................ 24
10.3. Initiation of Review by City Council ............................................... 25
10.4. Availability of Documents .............................................................. 25
11. Default ............................. : ....................................................................... 25
11.1. Default by Owner ........................................................................... 25
11.2. Default by City ............................................................................... 25
11.3. Estoppel Certificates ..................................................................... 25
11.3.1. Execution ...................................................................... . .......... 26
11.3.2. Costs; Reliance ....................................................................... 26
12, Judicial Review ....................................................................................... 26
12.1. Reference ...................................................................................... 26
12.1.1. Appointment ........................................................................... 26
12.1.2. Pretrial Matters .......................................................... . ............ 26
12.1.3. Trial ........................................................................................ 26
12.1.4. Judgment ............................................................................... .26
12.1.5. Post-Trial Proceedings ........................................................... 27
12.1.6. Appeal .................................................................................... 27
12.2. Specific Performance ................................................................... 27
12.3. Remedies Cumulative .................................................................. 27
12.4. Applicability of Review .................................................................. 27
12.5. Attomey's Fees ............................................................................ 27
12.6. Third-party Challenge ................................................................... 28
12.6.1. Defense of Litigation .............................................................. 28
12.6.2. Compliance with Judgment ................................................... 28
12.6,3. Review of Future Development Approval ... ............................ 28
12.7. Indemnification ............................................................................. 28
12.8. Validation ..................................................................................... 29
13. Encumbrances and Lenders ................................................................... 29
13.1. Rightto Encumber ........................................................................ 29
13.2; Notice of Defaultto Lender ........................................................... 29
14. Waivers and Delays ................................................................................ 30
14.1. No Waiver ..................................................................................... 30
14.2. Extension by Agreement .............................................................. 30
14.3. Force Majeure .............................................................................. 30
SECTION AND TITLE PAGE NO.
14.4. Extensions .................................................................................... 30
14.4.1. Litigation ................................................................................... 30
14,4.2. Other Delays ............................................................................ 30
14.5. Notice of Delay ............................................................................. 30
15. Notices ................................................................................................... 30
15.1. Manner of Giving Notice ............................................................... 30
15.2, Address for Notices ...................................................................... 31
15.3. Effective Date of Notices .............................................................. 31
15.4. Undeliverable Notice .................................................................... 32
15.5. Change of Address ....................................................................... 32
16. General Provisions ................................................................................. 32
16.1. Opinions of Counsel ..................................................................... 32
16.2. Binding Covenants ....................................................................... 32
16.3. Relationship of Parties ................................................................. 32
16.4. Recording ..................................................................................... 32
16.5. Severability ................................................................................... 32
16.6. Interpretation and Governing Law ................................................ 32
16.7. Section Headings ......................................................................... 33
16.8. Word Usage ................................................................................. 33
16.9. No Joint and Several Liability ....................................................... 33
16.10. Time of Essence ........................................................................... 33
16.11. Counting Days .............................................................................. 33
16.12. Recitals ........................................................................................ 33
16.13. Exhibits ......................................................................................... 33
16.14. Entire Agreement ......................................................................... 33
16.15. Survival of Obligations .................................................................. 34
16.16. Third Party Beneficiaries .............................................................. 34
16.17. Ambiguities ................................................................................... 34
16.18. Counterparts; Duplicate Originals ................................................. 34
16.19. Necessary Acts ............................................................................ 34
Exhibits
4
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the
12th day of November, 2002 ("Agreement Date"), by ADVANCED CARDIOVASCULAR
SYSTEMS, INC., a California corporation ("Owner"), and the CITY OF TEMECULA, a
California municipal corporation ("City"), pursuant to the authority of Sections 65864
through 65869.5 of the California Government Code and Article XI, Section 2 of the
California Constitution.
RECITALS
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized terms, which are
defined in this Agreement. The Parties intend to refer to those definitions in conjunction
with the use of the defined terms in these Recitals.
B. The Development Agreement Legislation authorizes City to enter into
binding development agreements with persons having legal or equitable interests in real
property for the Development of such property. The purposes of the Development
Agreement Legislation include, among other matters:
1. Reducing the uncertainty in the Development approval process.
This uncertainty can result in a waste of resources, discourage investment and escalate
the cost of Development to the consumer.
2. Strengthening the comprehensive planning process to provide for
the most efficient use of public and private resources.
3. Assuring applicants for Development projects that, upon approval
of their projects, they may proceed in accordance with existing policies, rules and
regulations.
facilities.
4. Providing for the financing and/or construction of necessary public
5. Providing a mechanism to allow alternative means of satisfaction of
ordinances or regulations in order to promote flexibility and to respond more selectively
to given proposals.
6. Streamlining and coordinating the Development approval process
by combining discretionary approvals that would otherwise occur in separate processes.
ACS Development Agreement 092002 Page 1
C. In addition to the general purposes listed above, the following are among
the consideration supporting this Agreement:
1. The Owner of the Project has made significant contributions to the
City of Temecula and its citizens, including: (a) creating approximately 3,100 local
jobs, which contribute over $91,000,000 in payroll annually to the area economy; and
(b) establishing a high quality medical device manufacturing facility at Owner's Existing
Facilities.
2. The Agreement authorizes'Owner to improve approximately 28
acres of light industrial and business park zoned real property in close proximity to
residential areas in the City. Completion of the Project would create jobs for the City's
citizens and reduce vehicle miles of travel by creating employment opportunities locally.
3. For both Parties, the Agreement helps provide for: (a) high quality
Development of the Property that is the subject of this Agreement; (b) certainty in the
type of Development to be undertaken on the Property; and (c) the assurance of
adequate public facilities to ensure the good of the community regardless of the City's
legal authority to impose such requirement under constitutional and statutory authority.
4. For City, the Agreement helps provide for: (a) employment growth
anticipated to result from the Project, both during construction and use; (b) an increase
· in tax'revenues anticipated to result from the Development of the Project; and (c) the
achievement of the goals and objectives of its General Plan.
5. For Owner, the Agreement provides for specified limitations on,
without the surrender of, the City's exemise of certain of its governmental and
proprietary powers together with the certainty of Owner's rights to develop the Project.
D. Owner desires to obtain authorization to develop the Property in
.accordance with the provisions of this Agreement. Owner has not made a final decision
on whether to actually develop the Property with the Project, and requires completed
.land use Entitlements as a prerequisite for making that decision.
. E. Owner has applied for and City has approved this Agreement in order to
create a beneficial Project and a physical environment that will conform to and
complement the goals of the City, create a Development project sensitive to human
needs and values, facilitate efficient traffic cimulation, and develop the Property. As
part of the process of granting this entitlement, the City has required the Preparation of
an initial study of environmental impacts and has issued a Mitigated Negative
Declaration as regards any potentially significant effects arising from the project and
has otherwise carried out all requirements of the California Environmental Quality Act of
1970, as amended.
ACS Development Agreement 092002 Page 2
F. On October 16, 2002, following a duly noticed and conducted public
hearing, the City Planning Commission approved the Mitigated Negative Declaration
and recommended that the City Council approve this Agreement.
G. On October 22, 2002, following a duly noticed and conducted public
hearing and pursuant to CEQA, the City Council approved the Mitigated Negative
Declaration.
H. On October 22, 2002, following a duly noticed and conducted public
hearing, the City Council determined that the provisions of this Agreement are
consistent with the City's General Plan. On October 22, 2002, following a duly noticed
and conducted public hearing, the City Council introduced Ordinance No. 02-10
approving and authorizing the execution of this Agreement.
I. On November 12, 2002, the City Council adopted the ordinance, a copy of
which is on file in the office of the City Clerk, and adopted findings and conditions
pertaining thereto, including those relating to the environmental documentation for the
Project.
J. The City has engaged in extensive studies and review of the potential
impacts of the project as well as the various potential benefits to the City by the
Development of the Project and concluded that the Development of the Project, as
provided herein, is in the best interests of the City.
K. In consideration of the substantial public improvements and benefits that
would accrue if the Project moves forward, and the strengthening of the planning
process and reduction of costs of Development which may adversely affect achieving
the goals of the City and the Project, by this Agreement the City intends to give the
Owner assurances that Owner can proceed with the Development of the Project for the
Term of this Agreement pursuant to its terms and in accordance with the City's General
Plan, the Tentative Parcel Map, and the ordinances, rules, regulations and policies
existing as of the Agreement Date, except as may otherwise be agreed to by the City
and Owner during the further planning of the Project.
L. In reliance on the City's covenants in this Agreement concerning
Development of the Property, Owner has incurred substantial costs in planning, design,
environmental review and site preparation, and may incur additional substantial costs
for such purposes as well as for construction and installation of major infrastructure and
facilities in order to complete the Project.
M. Pursuant to Section 65867.5 of the Development Agreement Legislation,
the City Council has found and determined that: (i) this Agreement implements the
goals and policies of City's General Plan, and imposes appropriate standards and
requirements with respect to land Development and usage in order to maintain the
ACS Development Agreement 092002 Page 3
overall quality of life and environment within the City; (ii) this Agreement is in the best
interests of and not detrimental to the public health, safety and general welfare of City
and its residents; (iii) adopting this Agreement is consistent with City's General Plan and
constitutes a present exercise of City's police power; and (iv) this Agreement is being
entered into pursuant to and in compliance with the requirements of Section 65867 of
the Development Agreement Legislation.
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Legislation, as it applies to City, pursuant to Article XI, Section 2 of the
California Constitution, and in consideration of the foregoing recitals of fact, the mutual
covenants set forth in this Agreement and for the further consideration described in this
Agreement, the Parties agree as follows:
1. DEFINITIONS.
The following words and phrases are used as defined terms throughout this
Development Agreement and each defined term shall have the meaning set forth
below.
1.1. "Agreement Date" means the date of first introduction and reading of the
Ordinance approving this Agreement; provided, however, that the Agreement will be in
legal force and effect as of the first date at which the ordinance authorizing the
Agreement is in force and effect pursuant to the provisions of California law.
1.2. "Authorizing Ordinance" means Ordinance No. 02-10 approving this
Agreement.
1.3. "CEQA" means the California Environmental Quality Act (Public
Resources Code Sections 21000, et seq.) and the related California Code of
Regulations sections (the "CEQA Guidelines"), as amended from time to time.
1.4. "City" means the City of Temecula, a California municipal corporation and
general law City, including its officials, council members, employees, consultants,
contractors, agencies and departments.
1.5. "City Council" means the duly elected and constituted city council of City.
1.6. "City Laws" means all codified and uncodified enactments of City and all
laws, regulations and standards of any governmental body having jurisdiction within
City.
1.7. "Days" means calendar days, not business days.
1.8. "Design Guidelines" means the document described in Section 2.3.3.
1.9. "Development" shall have the same definition as in Government Code
Section 65927, as that statute exists on Agreement Date.
ACS Development Agreement 092002 Page 4
1.10. "Development Agreement Legislation" means Government Code Sections
65864 through 65869.5 as they exist on the Agreement Date.
1.11. "Development Code" means Title 17 of City's Municipal Code in effect on
the Agreement Date.
1.12. "Development Impact Fee" means fees imposed on Development by City
to mitigate the impacts of Development.
1.13. "Development Moratorium" means any action of City, including actions or
inactions required pursuant to a voter sponsored initiative, which prohibits or delays the
Development of the Project or any portion thereof.
1.14. "Development Plan" Or uPlan" means a plan for the Development of a
particular phase of the Project as described in detail in Section 2.14 of this Agreement.
1.15. "Development Processing Fee" means a fee routinely imposed by City to
pay the administrative costs of reviewing an application for an Entitlement for a
proposed Development.
1.16. "District" means a public improvement district, assessment district,
community facilities district, and any similar mechanism to impose, levy, collect, or
allocate special assessments, improvement distdct fees, reimbursement distdct fees,
general or special taxes, or other similar fees or charges.
1.17. "Encumbrance" means a mortgage, deed of trust or any other device by
which the Owner's interest in the Property secures a loan or indebtedness. To
"Encumber" means to create an Encumbrance.
1.18. "Entitlements" means all grants of authorization to develop real property
issued by City and the statutes, ordinances, plans, decisions, resolutions, permits,
rules, regulations, and official policies that must be complied with and/or issued as a
condition to and in accordance with authorization for Development of real property.
Examples of "Entitlements" include the general plan, zoning designations and
regulations, subdivision maps, use permits, special use permits, conditional use
.permits, temporary use permits, Municipal Code and zoning ordinance provisions, site
;plans, Development Plans, design reviews, variances, building permits, certificates of
occupancy, and amendments to any of the above. The term "Entitlements" is not
dependent on the nature (such as legislative, quasi-judicial, ministerial or
administrative) of the matter in question.
1.19. "Estoppel Certificate" means a writing, signed by the Party issuing it,
~certifying that: (i) this Agreement is in full force and effect.and is a binding obligation of
~the Parties; (ii) this Agreement has not been amended or modified either orally or in
.writing or, if amended or modified, describing the amendments; and (iii) no default in the
performance of the requesting PartT's obligations under the Agreement exists or, if a
default does exist, the nature and amount of any default.
ACS Development Agreement 092002 Page 5
1.20. "Existing Facilities" means Owner's property and facilities at 26531 Ynez
Road (west of Ynez Road across from the Property).
1.21. "Fiscal Year" means the period from July 1 of one year to June 30,
inclusive, of the following year.
1.22. "Floor Area Ratio" or "FAR" means the Gross Floor Area of all buildings on
a lot divided by the gross lot area (Development Code Section 17.34.010).
1.23. "Future Development Approvals" means Entitlements to carry out
Development of the Project that are granted by City and accepted by Owner, following
the Agreement Date, and that may include :City's approval .of a Development Plan, lot
line adjustment, final subdivision map, grading permit, encroachment permit, building
permit and occupancy permit.
1.24. "General Plan" means the General Plan of the City of Temecula in effect
on the Agreement Date.
1.25. "Gross Floor Area" means the total horizontal area of a building, in square
feet, including the exterior walls of all floors (Development Code Section 17.34.010).
1.26. "Indemnified Persons" means City and City's agents, officers, attorneys,
and employees.
1.27. "Law" means any official legislative enactment of a governmental agency,
public body, or court that binds the Parties. Examples of a Law are case law,
constitutional provisions, statutes, ordinances, initiatives, resolutions, policies, orders,
rules and regulations. A matter is a Law regardless of whether it was imposed by a
'legislative body (such as the City Council or State Legislature), an administrative
agency (such as the Califomia Public Utilities Commission or City's Planning
Department), the electorate (as by initiative or referendum), or any other official body,
and regardless of whether it is federal, state or local.
1.28. "Lender" means the mortgagee of a mortgage, the beneficiary of a deed
of trust, or the holder of any other security interest in the Property or any portion
thereof, and its successors andassigns, including the purchaser at a judicial or non-
judicial foreclosure sale or a person or entity which obtains title by deed-in-lieu of
foreclosure.
1.29. "Litigation" means all forms of judicial or quasi-judicial proceedings, such
as complaints (for damages, declaratory relief, or otherwise), arbitrations, judicial
references, petitions (for traditional mandate, administrative mandate, or otherwise),
and judicial appeals, no matter how denominated.
1.30. ~Mitigated Negative Declaration" means the environmental document
under CEQA issued by the City on April 1,2002 and adopted in connection with this
Agreement.
ACS Development Agreement 092002 Page 6
1.31. "Model Codes" means the uniform codes governing construction and
those adopted by the State of California and binding on City, as may be lawfully
amended by City. Examples of Model Codes include the Uniform Building Code,
National Electrical Code, Uniform Fire Code, Uniform Plumbing Code, Uniform
Mechanical Code and the Uniform Code for the Abatement of Dangerous Buildings.
1.32. "Off-Site Public Improvements" means physical infrastructure
improvements or facilities not located on the Property, for dedication to, ownership, use
or benefit of the public or a public entity or utility.
1.33. "On-Site Public Improvements" means physical infrastructure
improvements or facilities located onthe Property, for dedication to, ownership, use or
benefit of the public or a public entity or utility.
1.34. "Owner" is Advanced Cardiovascular Systems, Inc., a California
corporation and a subsidiary of Guidant Corporation, and includes any assignee
authorized under this Agreement.
1.35. "Party" means City or Owner. "Parties" means City plus Owner.
1.36. "Phase I" means the Development of the Property under a Development
Plan that includes construction of at least one of the five (5) office buildings allowed
under this Agreement. The remainder of the Project may be built in one or more
additional phases.
1.37. "Planning Commission" means the duly appointed and constituted
planning commission of City.
1.38. "Processing Moratoria" means any significant delay in the City's
consideration of Owner's requested Entitlements to advance Development where such
delay is caused by other than: (i) the temporary unavailability of staff or staff time
required to consider requested Entitlements, or (ii) the failure of Owner to respond to
City's request for information, or similar causes. Processing moratoria shall include
moratoria imposed by a voter sponsored initiative measure.
1.39. "Project" means the Development of the Property as described in Section
2 of this Agreement.
1.40. "Property" means the real property described in Exhibits "A" and "A-i."
The real property described in Exhibit "A" consists of approximately seven (7) acres,
and is owned in fee by Owner. The real property described in Exhibit "A-1" consists of
approximately twenty (20) acres held and controlled by Owner under a synthetic lease.
1.41. "Rules, Regulations and Policies Affecting Development" or "Rules,
Regulations and Policies" shall mean City's General Plan and all applicable elements
thereof, City's Zoning Ordinance, the Tentative Parcel Map, a final subdivision map
(once adopted) based upon the Tentative Parcel Map, each Future Development
ACS Development Agreement 092002 Page 7
Approval, and the City's ordinances, policies, roles, regulations and written policies
existing as of the Agreement Date, all as more specifically defined in Exhibit "B."
1.42. "Tentative Pamel Map" means that certain Tentative Parcel Map No.
30107, approved by City on November 8, 2001, and applicable to the property
described in Exhibit "A-I." If Owner files an application for a substitute tentative parcel
map application under Section 2.16, then thereafter the term "Tentative Parcel Map"
shall mean such substitute map except where the context requires otherwise.
1.43. "l-erin" means the period of time which extends from the Agreement Date
through and including June 30"' of the f~eenth (15th) full City of Temecula Fiscal Year
from the date a certificate of occupancy is issued for the first building to be built on the
Property under this Agreement, unless extended by force majeure as described in
Section 14.3. In no event shall Owner's construction on or use of any portion of the
Property for parking purposes be considered to commence the referenced fifteen (15)
year pedod.
2. DEVELOPMENT OF PROJECT.
2.1. Ownership Interests. Owner represents that it owns approximately seven
(7) acres of the Property in fee. Owner further represents that it holds approximately
twenty (20) acres of the Property pursuant to a lease agreement with Atlantic Financial
Group, Ltd., and that pursuant to the lease agreement, Owner holds all such beneficial
rights of ownership as are necessary for Owner to enter into and meet its obligations
under this Agreement. The Parties agree that Owner's interests in the Property
constitute legal or equitable interests within the meaning of Government Code Section
65865.
2.2. Vested Ri.qhts. While this Agreement is in effect, Owner shall have the
· vested right to implement the Development of the Property and the Project in the
manner described herein, and as further authorized by: (i) the Rules, Regulations and
Policies affecting Development of the Project; (ii) the Entitlements; and (iii) Future
Development Approvals. City shall have the rights granted to it as set forth in this
Agreement, including the approval of Development Plans. Except as othenNise
specified in this Agreement, the Rules, Regulations and Policies affecting Development
and the Project shall control Development, Future Development Approvals, On-Site
Public Improvements and Off-Site Public Improvements relating to the Property.
2.3. Project. "Project" means the Development of the Property with up to
481,260 square feet of occupiable space contained in up to five buildings, plus up to
two parking structures, along with necessary public and private infrastructure, all as
further described in this Section 2.
2.3.1. Floor Area Ratio. The Project as a whole shall not exceed a Floor
Area Ratio of 0.40, exclusive of parking structures. Individual legal parcels within the
Property shall not be required to meet a specific FAR standard, provided the entire
ACS Development Agreement 092002 Page 8
Project meets the FAR of 0.40, exclusive of parking structures. In approving this
Agreement, City has made the findings set forth in Section 17.08.050(A) of the
Development Code.
2.3.2. Location and Size of Improvements. The location of
improvements, and the size and number of buildings (up to five), shall be in .Owner's
discretion, subject to the standards contained in this Section 2.3.2. If Owner develops
the maximum authorized amount of square footage, such square footage shall be
contained in a minimum of three buildings. Each of the two parking garages, if
constructed, shall contain between 125,000 and 200,000 square feet, but in no event
less than the square footage required to meet or exceed the City's parking standard or,
at Owner's option, to provide up to five spaces per 1,000 square feet of occupied space
(estimated at 500 to 750 spaces per garage) when combined with surface parking on
the Property. Except as otherwise expressly provided here, the total square footage
and number of stories in each building and parking garage shall be in Owner's
:discretion. In its discretion, Owner may provide more parking than five spaces per
1,000 square feet of occupied space, by way of combined surface parking and the
· parking structures permitted by this Agreement. The location of p~rking within the
Property for any specific building shall be at Owner's discretion, without regard to parcel
lines, provided that the building has'legal access to the required parking.
2.3.3. Design Guidelines; Architectural and Landscape Palette.
Development of the Project, including colors, materials and landscaping, shall be
consistent with the Design Guidelines attached as Exhibit "C.'
2.3.4. Height Limitation. No structure on the Property shall exceed a
maximum height of 80 feet from finished grade of building pad. Additionally, no
structure along Solana Way and Margarita Road shall exceed the height of the Setback
Planes as defined and illustrated in Exhibits D-l, D-2 and D-3.
2.3.4.1. Rooftop Equipment. The height limitations contained in
Section 2.3.4 shall be exclusive of rooftop mechanical enclosures and
telecommunications equipment, and related screening. Nothing in this
Agreement shall authorize any third party to construct rooftop
telecommunications equipment absent compliance with the City's normal
approval process.
2.3.4.2. Underground Structure. The height of an underground
structure shall not be counted toward the height of any above-ground portion of
that structure for purposes of determining compliance with a height limitation.
2.4. Allowed Uses. Allowed uses of the Property shall include Business Park
as defined in the Development Code (including office, research and manufacturing,
compounding of pharmaceuticals, and further including all uses carried out by Owner as
of the Agreement Date at the Existing Facilities; employee day care facility; employee
commissary or cafeteria; educational/training facility; employee gym; and all other
ACS Development Agreement 092002 Page 9
permitted uses in the Business Park zoning district. Owner shall not be required to
obtain a conditional use permit for any use described in this Section 2.4.
2.4.1. Consistent Development Standards. The approximate seven acre
pamel described in Exhibit "A" is zoned Light Industrial. The Development standards
for this portion of the Property shall be the same as set forth in this Agreement for the
remainder of the Property, which is zoned Business Park.
2.4.2. Use for Parking. A portion of the Property is presently used for
parking by employees who work at Owner's Existing Facilities. The Parties agree that
use of any portion of the Property for parking by Owner's employees who work at the
Existing Facilities, and Owner's invitees thereto, is allowed and consistent with this
Agreement.
2.5. Perimeter Fencin.q and Landscapin.q. Owner shall be allowed to fence the
entire Property, and provide controlled access with guard gates at each point of entry
.consistent with the Agreement's provisions for design and landscaping standards and
generally accepted engineering principles with regard to vehicle stacking, and (except
as otherwise agreed between the City and Owner) consistent with City policies.
Fencing and controlled access substantially similar to that utilized at the Existing
Facilities shall be deemed allowed under this Agreement. A Development Plan for
Phase I shall include the provision of perimeter landscaping as described in the Design
Guidelines, and fencing (if proposed by Owner) for the entire Project.
2.6. Access. Access to the Property shall be from Ynez (via Motor Car
Parkway), Margarita Road, Street "A" (as shown on the Tentative Parcel Map) and
Solana Way. Owner intends its primary access to be from Ynez; however, access shall
be authorized from Margarita Road, Street "A" and Solana Way as well. The points of
access to Margarita Road, Street "A" and Solana Way shall be as described in Exhibit
"E," and as otherwise approved by the City Engineer upon Owner's request.
2.7. Modifications. The Planning Director has the authority to approve minor
modifications to the Development standards and Design Guidelines required for the
'Project under this Agreement. The Planning Director may determine that a particular
modification requires an operating memorandum as described in Section 6.2, or an
amendment to this Agreement.
2.8. Off-Site Public Improvements. As a condition to receiving a certificate of
occupancy for Phase I, Owner shall construct the City-required Off-Site Public
Improvements specifically described in Exhibit "F." Other than by payment of existing
Development Impact Fees as specifically identified in and required by this Agreement,
Owner shall not be required to contribute financially toward the cost of, or construct or
· cause to be constructed any City-required Off-Site Public Improvements that are not
specifically listed in Exhibit "F."
2.9. On-Site Public Improvements. As a condition to receiving a certificate of
occupancy for Phase I, Owner shall construct the City-required On-Site Public
ACS Development Agreement 092002 Page 10
Improvements specifically described in Exhibit "G." Owner shall not be required to
contribute financially toward the cost of, or construct or cause to be constructed any
City-required On-Site Public Improvements that are not specifically listed in Exhibit "G.'
2.10. Dedication or Reservation Requirements. There shall be no dedication or
reservation of land for public purposes, except as provided in this Section 2.10.
2.10.1. Public Utility Easements. Owner shall convey to City or
other appropriate public agencies such easements and rights-of-way reasonably
necessary and customarily required to accommodate any On-Site Public Improvements
described in Section 2.9 which Owner dedicates or COnveys to a public agency for
public services (such as storm drains and public utility lines).
2.10.2. Motor Car Parkway. Potential dedication of Motor Car
Parkway to the City shall be subject to the provisions of Section 2.11, below.
2.10.3. Mar,qarita Road. Dedication or City acquisition of additional
right of way along Margarita Road shall be subject to the provisions of Section 2.12,
below.
2.11. Motor Car Parkway. Motor Car Parkway is a private street, under the
control of a private owners', association of which Owner is a member. Upon Owner's
request, City shall accept an offer of dedication for Motor Car Parkway and thereafter
own and maintain it as a public street. As a COndition precedent to City's obligation to
· accept the offer of dedication, Owner shall cause Motor Car Parkway to be upgraded to
public street standards as 'described in Exhibit "H." Owner shall be responsible for
obtaining any COnsents or authorizations required for the validity of the offer of
dedication. Upon Owner's request and with the concurrence of adjacent property
owners, City shall rename Motor Car Parkway to "Guidant Parkway" or some other
mutually agreeable name including the word "Guidant."
2.12. Mar,qarita Road. Owner is making certain improvements to Margarita
Road as part of the Off-Site Public Improvements. City has indicated its interest in
widening Margarita Road in the future, at City expense, to include a third lane
southbound along the Property. City estimates that the widening would necessitate
City's acquisition of an additional 12 feet of right of way beyond the existing right of way
(the "Additional Right of Way Area").
2.12.1. Restriction on Improvements. In order to accommodate
City's efforts, Owner agrees that any Development Plan it submits shall provide
generally for landscaping of the Additional Right of Way Area. Owner shall not
· construct any buildings or parking facilities within such area.
2.12.2. Acquisition. Upon City's request, Owner shall convey the
Additional Right of Way Area to City. As a condition precedent to Owner's obligation to
make the conveyance, City shall COmpensate Owner for the then-fair market value of
the land. The value of the land shall be determined without regard to the restriction on
improvements or landscaping requirements contained in Section 2.12.1. If the Parties
ACS Development Agreement 092002 Page 11
are unable to agree upon the value, then they shall jointly identity three MAI appraisers.
The Parties shall jointly select one of the three MAI appraisers, who shall conduct an
appraisal of the Additional Right of Way Area. The expense for the third appraiser shall
be divided equally between City and Owner, and that appraiser's determination of value
shall be binding upon the Parties.
2.12.3. Compliance with Landscaping Standards. The Parties
recognize that City's acquisition of the Additional Right of Way Area and construction of
roadway therein will reduce the overall amount of landscaping on the Property. Owner
shall not be required to replace such landscaping elsewhere on the Property in order to
meet City standards for landscape coverage. The Additional Right of Way Area shall
be counted as constituting "minimum required landscaped open space" as set forth in
City's Development Code Section 17.08.040, regardless of ultimate acquisition and use
by City.
2.12.4. Compliance with Heiqht and Other Requirement-~ City's
acquisition of the Additional Right of Way Area shall not change the location of the
Setback Planes as described in Section 2.3.4, nor shall such acquisition affect Project
compliance with any other requirement defined or measured by reference to the size of
the Property. For example, City's acquisition of the Additional Right of Way Area shall
not alter setback requirements in the Development Code, allowed buildable square
footage or allowed parking spaces on the Property.
2.13.. Pedestrian Bdd.qe. Owner owns and operates Existing Facilities on the
west side of Ynez Road. Owner anticipates that there will be considerable pedestrian
traffic between those facilities and the Property. In order to accommodate the
pedestrian traffic, and to minimize the interruption of vehicular traffic on Ynez Road due
to the existing surface pedestrian crossing, the Parties wish to provide for Owner's
; construction of a pedestrian bridge linking the Property with Owner's Existing Facilities.
2.13.1. Owner's Discretion. Owner may construct the pedestrian
bridge at any time, regardless of whether Owner proceeds with the Project. Owner is
.not required to construct the pedestrian bridge as a result of having entered into this
Agreement; provided, however, that if Owner proceeds with the Project and constructs
Phase I, Owner shall complete the pedestrian bridge so that it is available for use by
Owner's employees by the conclusion of the Term.
2.13.2. Location and Desi.qn; City Review. The location and design
of the pedestrian bridge shall be in Owner's discretion, subject to review by City through
the Development Plan process described in Section 2.14. Owner may submit an
application for Development Plan approval for the pedestrian bridge as a stand-alone
project, or as part of the Development Plan for Phase 1. The use of the term
~pedestrian bridge" in this Section 2.13 shall not preclude Owner from designing the
structure for use by small, motorized vehicles, including electdc carts.
2.13.3. Grant of Property Interest; Permits. At Owner's request, the
City shall convey a sufficient property interest (e.g., easement) to Owner at no cost, and
ACS Development Agreement 092002 Page 12
conduct any necessary proceedings to vacate the airspace in which the bridge is to be
located, so that Owner's ownership of the bridge can be the subject of title insurance
reasonably acceptable to Owner. The property interest shall acknowledge and provide
that Owner shall have the exclusive use of the bddge. City shall also issue any permits
required for the pedestrian bddge (e.g., encroachment permit). As a condition to
issuance of such permits, and based upon its review of the specific design and the
proximity of bridge structures to the public right of way, City may require Owner to
indemnify City as to Owner's construction and operation of the bddge. Any such
indemnification language may be implemented in the form of an operating
memorandum as described in Section 6.2, and shall be in a form mutually agreeable to
the Parties.
2.13.4. Costs, Ownership and Maintenance. If Owner constructs
the bridge, Owner shall pay all costs for design, construction (including relocation of
utilities) and maintenance, and for removal upon cessation of use. Owner shall own the
bddge, and City shall have no ownership interest therein.
2.14. Development Plans. At such time as Owner is ready to obtain approval
for specific structures, City shall process an application from Owner for Development
Plan approval.
2.14.1. Processin.q of Application. City shall process the application
so that a final decision is made within three months from the date the application is
deemed complete and assuming timely responses from Owner; provided, however, that
if a timely appeal from the decision is filed, the three month period shall be expanded
by an additional two months, for a total of five months. The Plan shall be subject to a
public hearing before City's Planning Director, with the Planning Director's decision
subject to appeal to the Planning Commission, and from there to the City Council. The
sole basis for appeal by a third party shall be whether the Development proposed is
within the scope of Development authorized by, and is consistent with, this Agreement,
including the Design Guidelines. Any such appeal shall specifically set forth in wr'~ing
the section of this Agreement with which the Development is alleged to be inconsistent.
2.14.2. Approval of Application. City shall be obligated to approve
Owner's proposed Plan as a ministerial act, provided the Development proposed is
within the scope of Development authorized by, and is consistent with, this Agreement,
including the Design Guidelines. The proposed Development shall be considered
within the scope of Development if it meets the requirements of Sections 2.3 through
2.13, inclusive. All Development Plans, taken together, shall provide for the Project to
meet the Development standards contained in Table 17.08.040A of Section 17.08.040
of the Development Code for the Property as a whole; accordingly, no single legal
parcel within the Property shall be required to independently meet Development
standards for minimum gross area, Floor Area Ratio, maximum percent of lot coverage,
or minimum required landscaped open space.
ACS Development Agreement 092002 Page 13
2.14.3. Phasin.q. Owner may submit a series of Development Plans
for approval, addressing different phases of the project. Each Development Plan shall
be valid for a period of five (5) years from the date of final approval by City, with such
time extended for any force majeure event as described in Section 14.3. A valid
Development Plan shall continue in effect for the full five (5) year period, regardless of
whether the Term of the Agreement expires during such period.
2.14.4. Environmental Review. City has prepared an initial study
and adopted a Mitigated Negative Declaration for this Agreement and the Project. In
conducting this environmental review, City has considered the maximum buildout of the
Project that is possible under this Agreement and any potential environmental effects
therefrom. Accordingly, no further environmental review will be required for individual
Development Plans provided that the Development proposed by such Plans is within
the scope of Development as described in section 2.14.2.
2.14.5. Development Plan Modifications. The Planning Director is
authorized to approve minor modifications to a previously approved Development Plan
applicable to the Project. The Planning Director, on the advice of the City Attorney,
shall have the discretion to determine whether a particular modification is minor and
may be processed administratively, or whether the modification requires an amendment
to the Development Plan and should thus be the subject of a noticed public hearing
before the Director.
2.15. Term of Map. City and Owner agree that multiple final maps may be filed
as to Tentative Parcel Map No. 30107, as provided in Government Code Section
66456.1. Specifically, the Parties agree that Owner may file a final map as to Pamels 4
and 5 of the tentative map, those lots being within Owner's Property and under
separate ownership from Parcels 1, 2 and 3. In accordance with Govemment Code
Section 66452.6(a)(1), the term of Tentative Parcel Map No. 30107 as to the Property
shall be for a term equal to the Term of this Agreement. The Parties understand and
agree that this Agreement does not apply to Parcels 1, 2 and 3.
2.16. Substitute Tentative Parcel Map. If for any reason Tentative Parcel Map
No. 30107 is withdrawn, or if Owner determines to obtain a new map applicable to the
property described in Exhibit UA-1 ," then Owner may apply for, and City shall approve, a
.substitute tentative parcel map dividing such property into two lots substantially as
described in Tentative Parcel Map No. 30107. In approving such map, City may
impose substantially the same conditions of approval as were included in the original
tentative map.
2.17. Lot Line Adiustment. Upon Owner's request, City shall process and
approve a lot line adjustment to reconfigure the existing two lots on the 7-acre parcel
and (assuming a final map is filed as to the Tentative Parcel Map) the two lots on the
20-acre parcel. The reconfiguration shall be as specified by Owner, consistent with
applicable state law. The reconfiguration shall also be consistent with City
Development standards as set forth in Table 17.08.040A of Section 17.08.040 of the
ACS Development Agreement 092002 Page 14
Development Code, recognizing, however, that because the entire Project meets the
Development standards for minimum gross area, Floor Area Ratio, maximum percent of
lot coverage, and minimum required landscaped open space, individual parcels are not
required to meet such standards independently.
3. DEVELOPMENT FEES.
3.1. Development Prccessin.q Fees. Development Processing Fees charged
by City for filing and processing an application for an Entitlement shall be those in effect
on the Agreement Date and in such amounts as are in effect at the time of submittal of
an application for an Entitlement; provided, however, that at Owner's option, City shall
charge its actual costs for plan check and inspection for on-site grading and public
. improvements. City shall charge its actual costs for other Development Processing
Fees as mutually agreed between Owner and City. The Development Processing Fees
which may be charged under this Agreement are listed in Exhibit al," however, nothing
in this Agreement restricts City's authority to increase the amount of those fees in the
future, in the manner allowed by law.
3.2. Expedited Review. City shall provide expedited review of all approvals
sought by Owner. City shall not impose a charge for such expedited review. For each
Development Plan submitted by Owner, City shall designate a member of its senior
executive staff as the project manager for City processing purposes.
3.3. Development Impact* Fees. Development Impact Fees imposed by City in
connection with an Entitlement for the Project shall be charged at the Industrial Rate
that existed on February 12, 2002. Development Impact Fees shall be limited to those
in existence on February 12, 2002 and charged at such fees' industrial rate (or
equivalent) that existed on that date. The total Development Impact Fee payable by
Owner in connection with the Project is listed by name and amount on Exhibit "J."
Owner shall not be required to pay any Development Impact Fee that is not expressly
set forth in Exhibit "J."
3.4. Landscapin.q Bond. Owner shall not be required to post a landscaping
maintenance bond, but shall post a corporate guarantee as to landscaping
maintenance obligations in a form reasonably satisfactory to City.
4.' RULES AND REGULATIONS.
4.1. Applicable Rules and Laws. Except as otherwise provided in this
Agreement, the Rules, Regulations and Policies Affecting Development shall be those
that are in force and applicable to the Business Park zoning district on the Agreement
Date. Except as otherwise provided in this Agreement, the Laws governing
Development of the Property and the Project, including those governing permitted uses,
density and intensity of use of the Property, shall be those set forth in the General Plan,
and other Rules, Regulations and Policies Affecting Development, including those Laws
ACS Development Agreement 092002 Page 15
affecting design, improvement, construction standards, and other specifications
applicable to Development of the Property, all as applicable on the Agreement Date. In
considering Future Development Approvals, City shall act in a manner that complies
and is consistent with this Agreement, the Rules, Regulations and Policies Affecting
Development, the Laws, and the other provisions contained in this Agreement. The
Project as described in this Agreement and all Future Development Approvals shall be
deemed to be in compliance with the Development Code and all Rules, Regulations
and Policies Affecting Development, Laws and City Laws.
4.2. · Applicability to Future Development Approvals. Owner shall be entitled to
apply for and receive Future Development Approvals at any time, free from
Development Moratoria or Processing Moratoria, provided that Owner's applications for
such approvals are made in accordance with the provisions of this Agreement, the
Rules Regulations and Policies, and such Future Development Approvals as the City
approves and Owner accepts in writing. City shall accept and timely process all
applications for Future Development Approvals in the normal and legal manner for
processing such matters and consistent with this Agreement, and the Rules,
Regulations and Policies. City shall not withhold any Entitlement, including a building
permit, final inspection or certificate of occupancy from Owner if Owner has satisfied all
conditions and requirements of this Agreement and any applicable Future Development
Approval. City shall consider and approve any other Entitlements not specifically
described in this Agreement that are reasonably necessary or a condition precedent to
accomplish the Project.
4.3. Model Codes. The City shall apply the versions of all applicable Model
Codes in effect at the time an application for Development Plan approval is deemed
complete, as to all improvements described in that Development Plan, and shall
continue to apply those same versions of Model Codes to that Development Plan for
the longest period legally allowed and without interruption. As to each Development
Plan, at Owner's request the appropriate City staff shall meet with Owner's
representatives to discuss the implementation of Model Codes and relevant timing
.issues, in order to determine applicable Model Codes and achieve consistency of
application of such codes for that phase of the Project.
4.4. Future Enactments. During the Term of this Agreement, City shall not
enact any Law, ordinance, rule, regulation or policy applicable to the Property which
conflicts with this Agreement, except as specifically requested or approved by Owner in
writing. This prohibition shall include the imposition of limits on the density or intensity
of use authorized for the Project and Property as provided by the General Plan.
4.5. Enfomeability. Except to the extent it has been amended, canceled,
.modified or suspended, and subject to the terms and conditions of this Agreement, this
Agreement shall be enforceable by any Party notwithstanding any change in any City
Law.
ACS Development Agreement 092002 Page 16
4.6. Representation. City represents that there are no City Laws in force as of
the Agreement Date that would prohibit the Development of the Project or use of all or
any portion of the Property in accordance with this Agreement.
4.7. Amendment to Rules. No amendment to the Rules, Regulations and
Policies Affecting Development or to Future Development Approvals shall apply to the
Property without Owner's written consent.
4.8. Future Miti.qation Measures. City shall not impose on any Future
Development Approvals any land use alternatives or mitigation measures other than
those expressly described in this Agreement and the Tentative Parcel Map.
4.9. Districts. Except for Districts which are citywide and imposed.on all
properties in the City, City shall not include the Property in any District, including any
future special assessment, special tax, reimbursement, impact fee or similar District.
The Parties acknowledge that the Property is included in a pre-existing District, known
as Community Facilities District No. 88-12, pursuant to the "Agreement Regarding
Sales Tax Revenues as to Businesses Located Within the Boundaries of Community
Facilities District No. 88-12 (Ynez Corridor) of the County of Riverside, State of
California," dated June 14, 1991, as amended by the UFirst Amendment to Agreement
Between City of Temecula and Eli Lilly and Company, an Indiana Corporation,
Regarding Sales Tax Revenues of Community Facilities District No. 88-12 (Ynez
Corridor)," dated April 12, 1994 (collectively, the 'CFD 88-12 Agreement"). A default by
the City in its obligations with respect to Owner under the CFD 88-12 Agreement, which
-is not cured within the times permitted by such agreement, shall be a default by the City
under this Agreement.
4.10. Phasin.q. In Pardee Construction Company v. City of Camadllo, 37 Cal.3d
465 (1984), the parties therein entered into an agreement through a consent judgment
concerning Development of certain property. The agreement did not specifically
provide for the timing of Development. A later-adopted initiative measure placed limits
on the number of building permits that could be issued each year. The California
Supreme Court held that the initiative prevailed over the agreement, since the parties
had failed to specifically address timing of Development. In order to avoid any potential
for a similar holding as to this Agreement, the Parties expressly acknowledge and agree
that Owner. shall have the dght (without obligation) to develop the Property in such
order and at such rate and at such times as Owner deems appropriate within the
exercise of its subjective business judgment, subject only to Owner's satisfaction of this
Agreement and the Future Development Approvals. Owner, Project and Development
of the Property shall be free of any other limitations or constraints on phasing or Project
build-out, or any other limitations or constraints on Development that are inconsistent
with this Agreement, whether by voter-sponsored initiative or action of the City.
4.11. Non-conformities. No use or structure that was consistent with this
Agreement when it was established or built shall be deemed to be' non-conforming at
the time this Agreement terminates except to the extent the non-conformity arises from
ACS Development Agreement 092002 Page 17
a violation of a Model Code that constitutes an immediate and serious threat to health
or safety.
4.12. Abatement and Revocation After the Term of the A.qreement Lapses. No
use or structure shall be subject to abatement as a nuisance, nor shall any Future
Development Approval for a use or structure be subject to revocation, if the use or
structure was consistent with this Agreement when established or built and if it remains
consistent with the Future Development Approval which authorized it, unless the City
finds that the use or structure has fallen into such a state of disrepair that it constitutes
an immediate threat to health or safety. In that event, the use or structure may be re-
established if it is re-established in a condition that does not constitute an immediate
threat to health or safety and in compliance with the Model Codes.
4.13. Other A.qencies. City shall assist and cooperate with Owner, at no cost to
the City, in securing County, State or Federal Entitlements, if any are necessary to
develop the Property pursuant to this Agreement.
5. TERM.
5.1. Commencement. The term of this Agreement shall commence on the
Agreement Date. As provided in Section 1.1, the Agreement will be in legal force and
effect as of the first date on which the ordinance authorizing the ,Agreement is in force
and effect pursuant to the provisions of California law.
5.2. Duration. Unless sooner terminated hereunder, this Agreement shall
expire at the end of the fifteenth (15th) full Fiscal Year which follows after the earlier of
either (1) the date a certificate of occupancy has been issued for the first Project
building to be built on the Property, or (2) June 30, 2006. In no event shall Owner's
construction on or use of any portion of the Property for parking purposes be
considered to commence the referenced fifteen (15) year period.
5.3. Termination. This Agreement shall be deemed terminated upon the
occurrence of any of the following events:
5.3.1. Termination under A.qreement. If termination occurs pursuant to
any specific provision of this Agreement;
5.3.2. Completion of Proiect. Completion of the total build-out of the
Project to the maximum square footage and parking structures allowed by this
Agreement, or such lesser area as agreed upon by Owner and City in writing.
"Completion" under this Section 5.3.2 shall include City's issuance of all required
occupancy permits and acceptance of all dedications and improvements required to
complete Development; or
5.3.3. Judgment. Entry after all appeals have been exhausted of a final
judgment or issuance of a final order directed to the City as a result of any Litigation
ACS Development Agreement 092002 Page 18
filed against City to set aside, withdraw, or abrogate the approval of the City Council of
this Agreement.
5.4. Effect of Termination. Termination of this Agreement shall not affect any
right or duty arising from Entitlements issued by City before termination, nor shall it
destroy any vested right arising from the completion of construction in reliance on an
Entitlement. Upon termination of this Agreement, then subsequent Development of the
Property shall be subject to City's then applicable Rules, Regulations and Policies.
5.5. Effect of A.qreement on Title. The Parties shall execute and record an
appropriate release upon termination of this Agreement.
6. AMENDMENTS; ADMINISTRATION OF AGREEMENT.
6.1. Amendment. This Agreement may be amended only by the mutual
agreement of the Parties. Any Party may propose an amendment to this Agreement,
and shall give notice of the requested amendment to each Party. In the event of
multiple Owners of different portions of the Property, notice shall be given to each such
Owner. The procedure for adopting an amendment shall be the same as the procedure
required under the Development Agreement Legislation for entering into this Agreement
in the first instance. No amendment of this Agreement shall be binding unless it is in
writing and signed by the Parties; provided, however, that an amendment of the
Agreement as to a portion of the Property shall be binding if signed by the City and the
Owner of the portion to which the Amendment is applicable.
6.2. Operatin.q Memoranda. This Agreement requires a close degree of
cooperation between City and Owner. From time to time, the Parties may wish to clarify
or provide further detail of their performance obligations under this Agreement. During
the term of this Agreement, City and Owner may at any time agree that such
clarifications are necessary or appropriate, in which event they shall effect such
clarifications through operating memoranda approved by City and Owner. Each
executed operating memorandum shall be attached to this Agreement. An operating
memorandum shall not constitute an amendment to this Agreement requiring public
notice or hearing. The City Attorney shall be authorized to make the determination
whether a requested clarification may be effectuated pursuant to this Section, or
whether the requested clar'~cation is of such a character to constitute an amendment
pursuant to Section 6.1. The City Manager may execute an operating memorandum
without City Council action.
6.3. Administration of A.qreement. Any decision by City staff concerning the
interpretation and administration of this Agreement and Development of the Property in
accordance herewith may be appealed by Owner to the Planning Commission for
recommendation and thereafter forwarded to the City Council for final action, provided
that any such appeal shall be filed with the City Clerk within ten (10) Days after Owner
receives written notice of the staff decision. The City Council shall conduct a noticed
public hearing on the appeal, and shall render its decision to affirm, reverse or modify
ACS Development Agreement 092002 Page 19
the staff decision within thirty (30) Days after the appeal was filed. The City Council
shall hear the matter de novo.
7. AMENDMENT TO AUTHORIZING STATUTE OR CHANGE IN LAW.
7,1. Development A.qreement Legislation. This Agreement has been entered
into in reliance on the provisions of the Development Agreement Legislation in effect on
the Agreement Date. Subsequent amendments to the Development Agreement
Legislation shall not be applicable to this Agreement, to the extent of any conflict,
.unless: (i) the amendments'are necessary for the Agreement to be enforceable; or (ii)
this Agreement is amended by mutual consent of the Parties to incorporate the
provisions of the Development Agreement Legislation as amended.
7.2. Chan.qe in State or Federal Law. If any state or federal Law enacted after
the Agreement Date prevents or precludes compliance with any provision of this
Agreement:
7.2.1. Notice. A Party who believes that the change in Law prevents or
precludes compliance shall provide each other Party written notice of the change in
state or federal Law. The notice shall include a copy of the change in question and a
statement describing how the change Conflicts with this Agreement. The Parties shall
then promptly meet and confer in a good faith and reasonable attempt to agree how to
modify or suspend this Agreement only as necessary to comply with such change in
· state or.federal Law. If City is the Party sending the notice, it shall send a copy of the
.notice to any'Lender whose address is known to City.
7.2.2. Hearin.q and Determination. Within forty-five (45) Days of a Party's
notice under Section 7.2.1, the City Council shall hold a public hearing on the matter.
This hearing shall occur regardless of whether the Parties reached agreement on the
effect of the change in state or federal Law. The City shall give public notice of the
headng at least ten (10) Days before it is held. At the hearing, the City Council shall
determine the exact modification or suspension which is reasonably necessary to
comply with the change in state or federal Law, while giving the maximum effect
possible to the Parties' intent and objectives in entering into this Agreement. Owner
shall have the right to offer oral and wdtten testimony at the headng regarding any
proposed action by City. The City Council's determination shall be subject to judicial
review as provided in Section 12.
8. TRANSFERS AND ASSIGNMENTS.
8.1. Transfers. Owner shall have the dght, at any time and on such number of
occasions as it chooses, to sell or transfer any or all of its interest in the Property to any
Person or entity. Owner shall notify City of a transfer within twenty (20) Days after the
event. No transfer shall convey any rights or obligations under this Agreement unless
· accompanied by an assignment as described in Section 8.2.
ACS Development Agreement 092002 Page 20
8.2. Assi.qnment. Owner's assignment of the Agreement, as to all or any
portion of the Property, shall be subject to the following restrictions:
8.2.1. Assi.qnment to a Guidant Assignee. Notwithstanding the provisions
of Section 8.2.2, Owner may assign any or all of its rights and obligations under this
Agreement at any time to a Guidant Assignee. As used in this Section 8.2, "Guidant
Assignee" means an entity in which a majority interest is owned by Advanced
Cardiovascular Systems, Inc., Guidant Corporation or any of their wholly-owned
subsidiaries, and which engages in the medical technology business. The City's
consent shall not be required for an assignment to a Guidant Assignee.
8.2.2. Assi.qnment Before Completion of Phase 1. For purposes of this
· Section· 8.2.2 and Section 8.2.3, "Phase 1" means the construction of at least 135,000
square feet of Gross Floor Area and the issuance of a certificate of occupancy for any
portion thereof. Before the completion of Phase I, Owner may assign the Agreement as
provided in Section 8.2.2.1 or Section 8.2.2.2.
8.2.2.1. Owner may assign any or all of its rights and obligations
under this Agreement, along with all the vested rights described in Section 2, but
only with the City's prior consent, which shall not be unreasonably withheld,
provided that City determines that the assignee is similarly qualified in terms of its
development experience, financial capabilities and ability to generate
employment.
a.- The City Council shall be the decision-making body to
determine whether to consent to the proposed assignment. The
City Council may, in its discretion, hold a noticed public hearing
before making the decision.
b. City shall have forty-five (45) Days to approve or deny
a proposed assignee, from the date of Owner's request for
consent. Owner and City may extend that period by mutual
agreement.
8.2.2.2. Owner may assign the Agreement, without City's prior
consent, provided that of all the vested rights contained in Section 2, only the
following provisions may be included in the assignment:
a. Allowed square footage, as described in Section 2.3;
b. Allowed Floor Area Ratio, as described in Section
2.3.1;
c. The location and size of improvements, as described in
Section 2.3.2;
d. Height limitation and required Setback Planes, as
described in Section 2.3.4;
ACS Development Agreement 092002 Page 21
e. Allowed uses and consistent development standards,
as described in Sections 2.4 and 2.4.1;
f. Approved access points, as described in Section 2.6;
and
g. Provisions as to widening of Margarita Road, as
described in Section 2.12.
Any assignee under this Section 8.2.2.2 shall comply with the Project Design
Guidelines contained in Exhibit "C," and any Development Plan shall be
subject to review 'and approval of the Planning Commission in accordance
with the City's 'usual procedures. The assignee shall pay all then-current
Development Impact Fees and Development Processing Fees. The term of
the Agreement for such assignee shall be ten (10) years from the earlier of
the date a certificate of occupancy is issued for the first building to be built on
the Property, or June 30, 2006, as described in Section 5.
8.2.3. Assi,qnment After Completion of Phase 1. After completion of
Phase I, Owner may assign any or all of its dghts and obligations under this Agreement,
along with all the vested rights described in Section 2, without the City's prior consent,
8.2.4, Notice and Acknowled,qement.
8.1.1.2. Owner shall give City written notice of an assignment
under Sections 8.2.1, 8.2.2.2 or 8.2.3 within twenty (20) Days thereof.
8.1.1.3. As a condition precedent to the effectiveness of any
assignment, the assignee shall provide City with written acknowledgement that it
has received and understood the Agreement, and agrees to be bound by it. The
assignee shall also provide City with a copy of the agreement effecting the
assignment.
8.2.5. Pedestrian Bdd,qe. An assignee other than a Guidant Assignee
shall not be required to construct the pedestrian bddge as described in Section 2.13.
9. REPRESENTATIONS AND WARRANTIES.
9.1. City's Representations and Warranties, City represents and warrants to
Owner as of the Agreement Date as follows:
9.1.1. City is a municipal corporation, which has been duly formed and
organized and is validly existing and in good standing under the laws of the State of
California.
9.1.2. City has the power, right and authority to enter into this Agreement
and to undertake the actions contemplated hereby.
ACS Development Agreement 092002 Page 22
9.1.3. All requisite action has been taken by City in connection with
entering into this Agreement.
9.1.4. The individuals executing this Agreement on behalf of City have the
legal power, right and actual authority to bind City to the terms and conditions of this
Agreement.
9.1.5. Neither the execution and delivery of this Agreement, nor the
incurrence of the obligations herein set forth, nor compliance with the terms of this
Agreement will conflict with or result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, any note or other evidence of indebtedness
or any contract, indenture, mortgage, deed of trust, loan, agreement, lease or other
agreement or instrument to which City is a party or by which any of City's properties
may be bound.
9.1.6. This Agreement is, and all documents required hereby to be
executed by City, will be valid, legally binding obligations of and enforceable against
City in accordance with their terms.
9.1.7. City has all governmental licenses, authorizations, consents and
approvals to execute, deliver and perform its obligations under this Agreement.
9.1.8. No City official has a financial interest in this Agreement within the
meaning of Government Code Section 1090, nor does any City official who makes or
'participates in the making of a governmental decision on this Agreement have a conflict
of interest under the Political Reform Act (Government Code Sections 73000, et seq.).
No City official, consultant or advisor is being compensated with a fee that is contingent
on or defined by the payment of any sums to City by Owner.
9.1.9. City shall promptly give Owner notice upon the occurrence of any
event, or receipt of any notice, which might give rise to a breach by City of any of its
representations, covenants or warranties set forth in this Section 9.1.
9.2. Owner's Representations and Warranties. Owner represents and
warrants to City as of the Agreement Date as follows:
9.2.1. Owner is a corporation that has been duly formed and organized
and is validly existing and in good standing under the laws of the State of California.
9.2.2. Owner has the corporate power, dght and authority to enter into
this Agreement and to undertake the actions contemplated hereby.
9.2.3. All requisite action has been taken by Owner in connection with
entering into this Agreement.
9.2.4. The individuals executing this Agreement on behalf of Owner have
the legal power, right and actual authority to bind Owner to the terms and conditions of
this Agreement.
9.2.5. Neither the execution and delivery of this Agreement, nor the
incurrence of the obligations herein set forth, nor compliance with the terms of this
ACS Development Agreement 092002 Page 23
Agreement will conflict with or result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, Owner's articles of incorporation, any bond,
note or other evidence of indebtedness or any contract, indenture, mortgage, deed of
trust, loan, agreement, lease or other agreement or instrument to which Owner is a
party or by which any of Owner's properties may be bound.
9.2.6. This Agreement is, and all documents required hereby to be
executed by Owner, will be valid, legally binding obligations of and enforceable against
Owner in accordance with their terms.
9.2.7. Owner has all governmental licenses, authorizations, consents and
approvals to execute, deliver and perform its obligations under this Agreement.
9.2.8. Owner shall promptly give City notice upon the occurrence of any
event, or receipt of any notice, which might give rise to a breach by Owner of any of its
representations, covenants or warranties set forth in this Section 9.2.
10. COMPLIANCE REVIEW.
10.1. Annual Review. City and Owner shall review this Agreement at least once
every 12-month period from the Agreement Date. City shall notify Owner in writing of
the date for review at least thirty (30) Days prior thereto. Such periodic review shall be
· conducted in accordance with Government Code Section 65865.1 and on the following
terms:
10.1.1. Good-Faith Compliance. Pursuant to Government Code
Section 65865.1, Owner shall have the duty to demonstrate its good faith compliance
with the terms of this Agreement at each periodic review. Owner may satisfy this duty
by presenting to City: (i) a written report identifying Owner's performance, along with
any reasons for nonperformance or excused performance, or (ii) oral or written
evidence submitted at the time of review.
10.1.2, Substantial Compliance. This Agreement and the
documents incorporated herein could be deemed to contain thousands of requirements,
such as construction and landscaping standards. Providing and reviewing evidence of
each and every requirement would waste the Parties' resources. Accordingly, Owner
shall be deemed to .have satisfied its duty of demonstrating good faith compliance when
it presents evidence of its good faith and substantial*compliance with (i) any issues
requested to be addressed by City in its notice of the review; (ii) the major provisions of
a Development Plan; and (iii) restrictions on the uses, number and sizes of structures
completed. Generalized evidence or statements shall be accepted in the absence of
evidence that Owner's evidence and statements are untrue.
10.2. Failure to Conduct Annual Review. City's failure to conduct the annual
review shall not constitute a default by any Party nor shall such failure waive, limit or
otherwise affect City's right to conduct annual reviews in subsequent years.
ACS Development Agreement 092002 Page 24
10.3. Initiation of Review by City Council. In addition to the annual review, the
City Council may at any time initiate a review of this Agreement by giving written notice
to Owner. City shall specify in the notice the specific issues it wishes Owner to address
concerning Owner's compliance with this Agreement. Within thirty (30) Days following
such notice, Owner shall submit evidence to the City Council of Owner's good faith
compliance with this Agreement. The review and determination by the City Council
shall proceed in the same manner as set forth in Section 10.1 for the annual review.
The City Council shall initiate its review pursuant to this Section 10.3 only if it has
probable cause to believe the health, safety or general welfare of residents of the City is
at risk because of specific acts or failures to act by Owner.
10.4. Availability of Documents. Upon Owner's written request, City shall
provide Owner copies of any documents, reports or other items reviewed, accumulated
or prepared by or for City in connection with any compliance review by City. Owner
shall reimburse City for all reasonable and direct costs and fees incurred by City in
providing such copies. City shall provide the copies within (10) Days from Owner's
request.
11. DEFAULT.
11.1. Default by Owner. If City conducts a review under Section 10 and finds,
on the basis of substantial evidence, that Owner has not complied in good faith with
terms or conditions of this Agreement, City shall give written notice to Owner stating the
· manner in which Owner has failed to comply and the steps Owner must take to bring
itself into compliance. If, within sixty (60) Days.after such notice, Owner does not
commence all steps reasonably necessary to bring itself into compliance and thereafter
diligently pursue such steps to completion, then Owner shall be deemed to be in default
hereunder and City may terminate or modify this Agreement as provided in Government
Code Section 65865.1. City shall have the dght to pursue any remedy at law or equity,
including specific performance.
11.2. Default by City. If Owner determines that City has not complied in good
faith with terms or conditions of this Agreement, Owner shall give written notice to City
stating the manner in which City has failed to comply and the steps City must take to
bdng itself into compliance. If, within sixty (60) Days after such notice, City does not
commence all steps reasonably necessary to bring it into compliance and thereafter
diligently pursue such steps to completion, then City shall be deemed to be in default
and Owner may terminate this Agreement. Owner shall have the dght to pursue any
remedy available at law or equity, including specific performance.
11.3. Estoppel Certificates. A Party may make a wdtten request for an Estoppel
Certificate to another Party at any time. The Party to whom the request is made shall
provide an Estoppel Certificate to the requesting party within thirty (30) Days after the
request.
ACS Development Agreement 092002 Page 25
11.3.1. Execution. The City Manager or any person designated by
the City Manager may sign an Estoppel Certificate on behalf of City. Any officer of
Owner may sign on behalf of Owner.
11.3.2. Costs; Reliance. The requesting Party shall reimburse the
responding Party for all reasonable and direct costs and fees incurred by the
responding Party in providing the Estoppel Certificate. Any such certificate may and is
intended to be relied upon by any person, including the other Party, potential
pumhasers of all or any part of the Property, Lenders, and potential Lenders.
12. JUDICIAL REVlEVV.
12.1 Reference. City and owner shall have the right to apply to a court to
enjoin any breach of this Agreement. Excepting the right to seek such relief, all claims
and matters in question arising out of this Agreement, whether sounding in contract, tort
or otherwise, shall be resolved through a general reference in accordance with Code of
Civil Procedure Sections 638 through 645.1. To initiate such a proceeding, a Party
shall apply to the Riverside County Superior Court for the appointment of a referee to
hear the dispute. The referee shall hear and determine any and all of the issues in the
action or proceeding, whether of fact or of law, and shall report a statement of decision
for a complete and final adjudication of the controversy.
12.1.1. Appointment. Owner and City shall agree upon a single
· referee. If Owner and City are unable'to agree on a referee within fifteen (15) Days of a
'written request to do so, each Party shall submit to the Court up to three nominees for
appointment. The Court shall appoint one or more referees, not exceeding three, from
among the nominees against whom there is no legal objection. A legal objection shall
consist of any of the grounds specified in Code of Civil Procedure Sections 170.1 or
641. The cost of the reference proceeding shall initially be borne equally by the Parties.
12.1.2. Pretrial Matters. The Parties shall have all rights of
discovery permitted by the Cede of Civil Procedure in civil litigation, except that the time
:periods shall be shortened by agreement or by order of the referee, and the extent of
discovery shall also be limited, with the goal of completing all discovery within ninety
(90) Days. The referee shall hear all pretrial matters, including law and motion and
discovery.
12.1.3. Trial. The referee shall try all issues, whether of fact or law.
The referee shall follow the rules of evidence applicable in a Court trial.
12.1.4. Judgment. The referee shall render a reasoned statement
of decision pursuant to Code of Civil Procedure Section 632, citing both the law and the
· evidence relied on. The referee's decision shall stand as the decision of the Court, and
judgment shall be entered on the statement of decision in the same manner as if the
action had been tried by the Court. The judgment may include any provision or relief at
law or in equity, including injunctive relief and specific performance, which could have
ACS Development Agreement 092002 Page 26
been made by the Court acting without a reference; provided, however, that the referee
shall not have the power to punish disobedience of an order by contempt, that power
being reserved to the Court ordering the reference in the first instance. The
compensation of the referee and reporter as well as any other taxable costs shall be
allocated between the respective Parties by the referee as a part of the judgment.
12.1.5. Post-Trial Proceedings. The referee shall hear all motions
or proceedings that may be heard by a judge following entry of judgment, including
motions for reconsideration, to stay execution, to tax costs including attorneys' fees and
prejudgment interest, to vacate judgment and for a new trial.
12.1.6. Appeal. The judgment entered on the.referee's statement of
decision shall be appealable in the.same manner as a judgment entered by the Court,
under Code of Civil Procedure Section 645.
12.2. Specific Performance. Due to the size, nature and scope of the Project, it
will not be practical or possible to restore the Property to it{ natural condition once
implementation of this Agreement has begun. After such implementation, Owner may
be foreclosed from other choices it may have had to utilize the Property and provide for
other benefits. City and Owner have invested significant time and resources and
performed extensive planning 'and processing of the Project in agreeing to the terms of
this Agreement and .will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement, and. it is not
· possible to determine the sum of money which would adequately compensate either
Party for such efforts. For the above reasons, City and Owner agree that damages
would not be an adequate 'remedy if a Party fails to carry out its obligations under this
Agreement and that each Party shall have the right to seek and obtain specific
performance as a remedy for breach of this Agreement. Notwithstanding the foregoing,
City shall have no right to seek specific performance to cause Owner to proceed with
the Development of the Project, or any other remedy in connection with Owner's
decision whether or not to proceed with the Project.
12.3. Remedies Cumulative. The rights and remedies provided in this
Agreement shall not be exclusive but shall, to the extent permitted by law, be
cumulative and in addition to all other rights and remedies existing at law, in equity Or
otherwise, except those dghts and remedies which have been waived. It is expressly
agreed that neither City nor Owner shall be liable for punitive or eXemplary damages,
and each Party hereby waives its dght, if any, to recover punitive or exemplary
damages in connection with any breach or default by the other Party under this
Agreement.
12.4. Applicability of Review. Any modification, suspension or termination of
this Agreement by any Party shall be subject to judicial review unless all affected
Parties have consented in writing thereto.
12.5. Attorney's Fees. In any Litigation by which one Party either seeks to
enforce its rights under this Agreement or seeks a declaration of any rights or
ACS Development Agreement 092002 Page 27
obligations under this Agreement, the prevailing Party shall be awarded reasonable
attorneys' fees, together with any costs and expenses (including expert witness and
referee costs), to resolve the dispute and to enforce the final judgment.
12.6. Third-party Challen.qe. The Parties shall cooperate with each other in all
reasonable manners in order to keep this Agreement in full force and effect. The
,Parties shall cooperate in defending against any Litigation challenging the approval of
this Agreement or any provision therein.
12.6.1. Defense of Litigation. In the event of Litigation brought by a
third-party to the approval or implementation of this Agreement, or any aspect thereof,
City and Owner shall jointly cooperate in the defense. The Parties may, but are not
required to, develop an operating memorandum to further describe the details of their
defense of the Litigation. Each Party shall bear its own attomeys' fees and costs in the
trial court unless otherwise agreed. In the event the plaintiff or petitioner obtains a final
judgr~ent in its favor in the trial court, the Parties shall decide whether to pursue an
appeal. If both Parties wish to appeal, then each shall bear its own attorneys' fees and
costs on appeal unless otherwise agreed. If one Party wishes to appeal, but the other
does not, then the former Party shall be entitled to pursue the appeal at its sole cost
and expense, and shall indemnify the other Party against any (~ost associated with the
appeal. This Agreement shall remain in full force and effect while the third-party
Litigation, including any appellate review, is pending.
12.6.2. Compliance with Jud.qment. No Party shall be in breach of
this Agreement if it acts in :conformance with a final judgment from a court of competent
jurisdiction entered because of a third-party challenge.
12.6.3. Review of Future Development Approval. If for any reason a
court of competent jurisdiction determines by final judgment that City is required to
conduct environmental review for any Future Development Approval, the City agrees
that the benefits provided through this Agreement as described in the Recitals qualify
as extraordinary benefits of the Project, for purposes of any Statement of Overriding
Consideration, should feasible mitigation measures or altematives not be available to
mitigate project related impacts that are deemed significant.
12.7. Indemnification. Except to the extent of the negligence or willful
misconduct of an Indemnified Person, Owner shall indemnify, defend with legal counsel
of City's reasonable approval, and hold harmless the Indemnified Persons from and
against each and every claim, action, proceeding, cost, fee, legal cost, damage, award
or liability of any nature arising from alleged damages caused to third parties and
alleging that City is liable for such damages as a direct or indirect result of City's
approval of this Agreement. Owner's obligation to indemnify is subject to and
conditioned upon the Indemnified Person's timely written request to Owner to defend
and/or indemnify. Any such request shall be made immediately upon such Person's
becoming aware of a claim which could reasonably give rise to Owner's obligations
under this Section.
ACS Development Agreement 092002 Page 28
12.8. Validation. City shall initiate and pursue to final judgment a validation
action confirming the validity and legality of this Agreement. Owner shall reimburse City
for one-half of City's legal fees and costs in the validation action, not to exceed
$10,000.00. To obtain reimbursement, City shall provide statements to Owner in care
of Susan L. Walker, Senior Counsel, at her address as described in Section 15.2.
13. ENCUMBRANCES AND LENDERS.
13.1. Ri.qht to Encumber. This Agreement shall not prevent or limit an Owner of
any interest in the Property, 'or any portion thereof, at any time or from time to time in
any manner, at its sole discretion, from Encumbering the Property, the improvements
thereon, or any portion thereof with a lease, mortgage, deed of trust, sale and
leaseback arrangement or other security device. City acknowledges that any Lender
may require certain interpretations of or modifications to the Agreement or the Project
and City agrees, upon request, from time to time, to meet with the Owner or
representatives of such Lenders to negotiate in good faith any such request for
interpretation or modification. City further agrees that it will not unreasonably withhold
'its consent to any such requested interpretation or modification to the extent such
interpretation or modification is consistent with the intent and purpose of this Agreement
and does not impair the Development and construction of the public improvements
identified herein. A default under this Agreement shall not defeat, render invalid,
diminish or impair the lien of any Lender.
13.2. Notice of Default to Lender. After providing a written request for notice to
City, 'any Lender shall be entitled to receive a copy of any notice of default to Owner
under this Agreement. As a pre-condition to the institution of Litigation or termination
proceedings, City shall deliver to Owner and all such Lenders written notification of any
default by Owner in the performance of its obligations under this Agreement which is
not cured within sixty (60) Days (the !'Second Notice of Default") and shall allow the
Lender an opportunity to cure such the defaults. The Second Notice of Default shall
specify in detail the alleged default and the suggested means to cure it. After receipt of
the Second Notice of Default, each Lender shall have the right, at its sole option, within
ninety (90) Days to cure the default 0r, if the default cannot reasonably be cured within
that ninety (90) Day period, to commence to cure the default, in which case no default
shall exist and City shall take no further action. Notwithstanding the foregoing, if the
default can only be remedied by the Lender obtaining possession of the Property or any
portion thereof, and the Lender seeks to obtain possession, the Lender shall have until
ninety (90) Days after obtaining possession to cure or, if the default cannot reasonably
be cured within that period, to commence to cure the default. A Lender shall not be
required to cure any non-curable default of Owner, and any such default shall be
deemed cured if any Lender obtains possession.
ACS Development Agreement 092002 Page 29
14. WAIVERS AND DELAYS.
14.1. No Waiver. No waiver of a breach, failure of any condition, or any right or
remedy contained in or granted by the provisions of this Agreement shall be effective
unless it is in writing and signed by the Party waiving the breach, failure, right or
remedy. No waiver of any breach, failure, right or remedy shall be deemed a waiver of
any other breach, failure, right or remedy, whether or not similar, nor shall any waiver
constitute a continuing waiver unless the writing so specifies.
14.2. Extension by A.qreement. The time for performance of any obligation
under this Agreement may be extended by the mutual agreement of the Parties. The
City Manager and any officer of Owner are authorized to execute any such agreement
on behalf of their respective Parties.
14.3. Force Majeure. A Party shall not be deemed to be in default where failure
or delay in performance of any of its obligations under this Agreement is caused by
floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes and
other labor difficulties beyond the Party's control, and (as to Owner) Laws (including
voter initiative or referenda, moratoria, and judicial decisions) occurring within or
affecting Development within the City of Temecula.
14.4. Extensions. The Term of this Agreement and the time for performance by
a Party of any of its obligations hereunder shall be extended by the pedod of time that
any of the events described in Section 14.3 exist or prevent performance of such
obligations. In addition, the Term. shall be extended for delays arising from the
following events for a time equal to the duration of each delay which occurs during the
Term:
14.4.1. Liti.qation. The period of time after the Agreement Date
during which Litigation is pending that relates to this Agreement or to the Development
contemplated thereby. This period shall include any time during which appeals may be
filed or are pending.
14.4.2.. Other Delays. Any delay resulting from an act or omission of
City in breach of this Agreement; or the failure of any other governmental agency or
public utility to act when the failure to act is beyond Owner's control.
14.5. Notice of Delay. A Party shall give notice to the other Party of any delay
that it believes to have occurred because of an event described in Sections 14.3 and
14.4. To be effective, a notice of delay shall be given within thirty (30) Days after the
end of the delay. No notice shall be allowed during the thirty (30) day period before the
end of the Term.
15. NOTICES.
15.1. Manner of Givin.q Notice. All notices required or provided for under this
Agreement shall be in writing and delivered in person, or sent by first-class mail,
certified mail (return receipt requested), or ovemight delivery.
ACS Development Agreement 092002 Page 30
15.2.
Address for Notices. Notices to City shall be addressed as follows:
City of Temecula
43200 Business Park Drive
Post Office Box 9033
Temecula, California 92589-9033
Attn.: City Manager
With a copy to:
Richards, Watson & Gershon
333 South Hope Street, 40th Floor
Los Angeles, California 90071-1469
Attn.: Peter M. Thorson, City Attorney
Notices to Owner shall be addressed as follows:
Advanced Cardiovascular Systems, Inc.
26531 Ynez Road
Temecula, Ca. 92591-4628
Attention: Vice President Customer Service and
Site Operations
With a copy to:
Susan L. Walker, Esq.
Senior Counsel
Advanced Cardiovascular Systems, Inc.
3200 Lakeside Drive
Mail Stop No. S-314
Santa Clara, Ca. 94054
And with a copy to:
Michael R. Woods, Esq.
465 1~t Street West, Suite 200
Sonoma, Ca. 95476-6600
15.3. Effective Date of Notices. When personally delivered to the recipient,
notice is effective on delivery. When mailed first class, postage prepaid, to the last
address of the recipient known to the Party giving notice, notice is effective three mail
delivery days after deposit in a United States Postal Service office or mailbox. When
mailed certified mail, return receipt requested, notice is effective on receipt, if delivery is
confirmed by a return receipt.' When delivered by overnight delivery service, charges
ACS Development Agreement 092002 Page 31
prepaid or charged to the sender's account, notice is effective on delivery, if delivery is
confirmed by the delivery service.
15.4. Undeliverable Notice. A correctly addressed notice that is refused,
unclaimed, or undeliverable because of an act or omission of the Party to be notified
shall be deemed effective as of the first date that such notice was refused, unclaimed or
deemed undeliverable by the postal authorities, messenger or overnight delivery
service.
15.5. Change of Address. A Party may change its address for notices by giving
notice in writing to the other Party as required herein. Thereafter, notices shall be sent
to the new address.
16. GENERAL PROVISIONS.
16.1. Opinions of Counsel. Within twenty (20) Days after this Agreement has
become legally effective, counsel for City shall provide to Owner a legal opinion
substantially in the form attached as Exhibit UK." Within twenty (20) Days after this
Agreement has become legally effective, counsel for Owner shall provide to City a legal
opinion substantially in the form attached as Exhibit "L."
16.2. Binding Covenants. To the extent permitted by law, the provisions of this
Agreement shall constitute covenants that shall run with the Property for the benefit
thereof, and the benefits and burdens of this Agreement shall bind and inure to the
benefit of the Parties and their respective successors in interest.
16.3. Relationship of the Parties. Development of the Property is a pdvate
project in which neither City nor Owner will be acting as the agent of the other in any
respect. City and Owner are independent entities with respect to the terms and
conditions of this Agreement. Nothing in this Agreement shall be deemed to create a
partnership between or among the Parties, nor shall it cause them to be considered
joint venturers or members of any joint enterprise.
16.4. Recordin.q. The City Clerk shall record this Agreement and any
amendment or cancellation thereof in the Official Records of Riverside County as
required by Government Code Section 65868.5. Recordation shall be without fee as
provided by Government Code Section 27383.
16.5. Severability. If any term, covenant, condition or provision of this
Agreement, or the application thereof to any circumstance, shall at any time or to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, then the remainder of this Agreement, or the application thereof to
circumstances other than those as to which it is held invalid or unenforceable, shall be
valid .and enforceable, to the fullest extent permitted by law, and interpreted in the
manner most consistent with effectuating the Parties' intent by the party benefited.
16.6. Interpretation and Governing Law. The language in all parts of this
Agreement shall, in all cases, be construed as a whole and in accordance with its fair
ACS Development Agreement 092002 Page 32
meaning. This Agreement and any dispute arising hereunder shall be governed and
interpreted in accordance with the laws of the State of California, without giving effect to
any choice of law rules thereof which may direct the application of the laws of another
jurisdiction. The Parties understand and agree that this Agreement is not intended to
constitute, nor shall be construed to constitute, an impermissible attempt to contract
away the legislative and governmental functions of City, and in particular, City's police
powers.
16.7. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of any provision
of this Agreement nor affect any of the rights or obligations of the Parties.
16.8. Word Usage. Unless the context clearly requires otherwise, (i) the plural
and singular numbers shall each be deemed to include the other; (ii) the masculine,
feminine and neuter genders shall each be deemed to include the others; (iii) "shall,"
"will" or "agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive; and
(v) "include," "includes" and "including" are not limiting.
16.9. No Joint and Several Liability. At any time that there is more than one
Owner, no breach hereof by an Owner shall constitute a breach by any other Owner.
Any remedy, obligation, or liability; adsing due to such breach shall be applicable solely
· to the Owner that committed the breach. However, City shall send a copy of any notice
of default to all Owners, including those not in breach.
16.10. Time of Essence. Time is of the essence regarding each provision of this
Agreement of which time is an element.
16,11. Counting Days. Days shall be counted by excluding the first day and
including the last day, unless the last day is a Saturday, a Sunday or a legal holiday,
and then it shall be excluded. Any act required by this.Agreement to be performed by a
certain day shall be timely performed if completed before 5:00 p.m. local time on that
date. If the day for performance of any obligation under this Agreement is a Saturday,
a Sunday or a legal holiday, then the time for performance of that obligation shall be
extended to 5:00 p.m. local time on the first following day that is not a Saturday,
Sunday or legal holiday. As used in this Section, "legal holiday" means those days
observed as holidays 'by the City of Temecula (excluding floating and half-day holidays)
pursuant to Temecula Municipal Code Section 2.32.010 as of July 1, 2002, which
holidays are listed in EXhibit "M."
16.12. Recitals. Each recital set forth at the beginning of this Agreement is
incorporated here by reference, as though fully set forth herein, and agreed by the
Parties to be true and correct.
16.13. Exhibits. Each exhibit attached to this Agreement is incorporated here by
reference, as though fully set forth herein.
16.14. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof. This Agreement
ACS Development Agreement 092002 Page 33
supersedes all previous negotiations, discussion and agreements between the Parties,
and no parole evidence of any prior or other agreement shall be permitted to contradict
or vary the terms hereof. No Party has been induced to enter into this Agreement by,
nor is any Party relying on, any representation or warranty outside those expressly set
forth in this Agreement.
16.15. Survival of Obli,qations. It is understood and agreed by the Parties that
whether or not it is specifically so provided herein any term or provision of this
Agreement, which by its nature and effect is required to be kept, observed, or
performed after termination or expiration of this Agreement, shall survive such
· expiration or termination, and shall be and remain binding upon and for the benefit of
the Parties until fully observed, kept or performed.
1'6.16. Third Party Beneficiaries. Except as expressly provided in this Section
16.16, this Agreement is not intended, nor shall it be construed, to create any third party
beneficiary rights in any person. All previsions hereof are for the exclusive benefit of
City and Owner. No provision hereof shall be construed to benefit or be enforceable by
any third party. Notwithstanding the foregoing, the owners of properties with frontage
on Motor Car Parkway shall be express third party beneficiaries of City's obligations as
set forth in Exhibits "H," "H-l," "H-2" and "H-3," with the right to enfome performance of
such obligations.
16~17. Ambi,quities. Each Party and its counsel have participated fully in the
review and revision of this Agreement. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting Party shall not apply in interpreting
this Agreement.
16.18. Counterparts; Duplicate Od,qinals. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. This Agreement may also be executed in duplicate
originals for both Parties, and each such document shall constitute an original
Agreement.
16.19. Necessary Acts. The Parties shall at their own cost and expense execute
and deliver such further documents and instruments and shall take such other actions
as may be reasonably required or appropriate to evidence or carry out the intent and
purposes of this Agreement.
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ACS Development Agreement 092002 Page 34
IN VVITNESS WHEREOF,
the day and year dated below.
Dated:
the Parties hereto have executed this Agreement on
ADVANCED CARDIOVASCULAR SYSTEMS, INC.,
a California corporation
By:
Name: John M. Capek, Ph.D.
Title: President
By:
Name: Mark A. Murray
Title: Vice President, Finance
And Business Development
Dated:
CITY OF TEMECULA,
a California municipal corporation
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
ACS Development Agreement 092002 Page 35
Exhibit
A
A-1
B
Development Agreement
Index to Exhibits
Title
Legal Description (7 acre +/- portion)
Legal Description (20 acre +/- portion)
Rules, Regulations and Policies Affecting Development
C
Project Design Guidelines
D
Setback Plane Illustration 1
D-1
Setback Plane Illustration 2
D-2
Setback Plane Definitions and Restrictions
E
Approved Access Points
F
Off-site Public Improvements
F-1
Margarita Road/Solana Way Striping Plan
Page 1
G On-site Public Improvements
H
Motor Car Parkway Engineering Standards
H-1
to
H-3
Motor Car Parkway - Upgrades to Public Street Standards
Development Processing Fees
J
Development Impact Fees
K
City's Legal Opinion
L
Owner's Legal Opinion
M
Legal Holidays
Page 2
Exhibit "A"
LEGAL DESCRIPTION
OF APPROXIMATE 7 ACRE PORTION OF THE PROPERTY
PARCELS 1 AND 2 OF PARCEL MAP NO. 23354, AS SHOWN BY MAP ON
FILE IN BOOK 152 PAGES 74 TO 76, INCLUSIVE, OF PARCEL MAPS,
RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, AND AS AMENDED BY
CERTIFICATE OF CORRECTION RECORDED DECEMBER 20, 1988 AS
INSTRUMENT NO. 373108 OF OFFICIAL RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA;
EXCEPT ALL MINERAL, OIL AND GAS RIGHTS BELOWTHE DEPTH OF 500
FEET BELOW THE SURFACE OF SAID LAND WITHOUT THE RIGHT OF
SURFACE ENTRY, AS RESERVED TO KAISER DEVELOPMENT COMPANY,
A CALIFORNIA CORPORATION BY DEEDS RECORDED DECEMBER 16,
1987 AS INSTRUMENT NOS. 354622 AND 354624 BOTH OF OFFICIAL
RECORDS.
Exhibit "A-I"
LEGAL DESCRIPTION
OF APPROXIMATE 20 ACRE PORTION OF THE PROPERTY
LOT 9 OF TRACT NO. 3334, AS SHOWN BY MAP ON FILE IN BOOK 54,
PAGES 25 TO 30, INCLUSIVE, OF MAPS, RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA
EXCEPT THAT PORTION'DESCRIBED ON EXHIBIT C OF F NAL DECREE OF
CONDEMNATION RECORDED FEBRUARY 17, 2000 AS INSTRUMENT NO.
2000-059678, OF OFFICIAL RECORDS.
Exhibit "B"
RULES, REGULATIONS AND POLICIES
AFFECTING DEVELOPMENT
The City!s rules, regulations and policies affecting development, as defined in
Section 1.41, shall include the following:
1. The City's General Plan, as defined in Section 1.24.
2. The City's Development Code, as defined in Section 1.11.
3. City Ordinances that govern the Development of real property, in effect on
the Agreement Date.
4. The City's written submittal requirements that govern the processing of
Development applications, in effect on the Agreement Date.
5. The Tentative Parcel Map and conditions of approval, as defined in
Section 1.42.
6. Future Development Approvals, as defined in Section 1.23.
7. The Project Design Guidelines, as set forth in Exhibit aC."
The City Clerk has certified as true and correct copies, two complete sets of the
documents described in items one through seven, above. Each Party
acknowledges receipt of one set of the referenced documents.
Exh~It B City Rules 082802
Exhibit "C"
PROJECT DESIGN GUIDELINES
SECTIONS:
1
2
3
4
5
6
Purpose and Intent
Relationship to Development Code and
Citywide Design Guidelines
Architectural Design Concept
Supplemental Design Standards
Architectural and Landscape Palette Addendum
Minor Modification of the Project Design
Guidelines
Section 1. Purpose and Intent.
The purpose of these Project Design Guidelines ("Project Design Guidelines" or
"Guidelines") is to provide additional details concerning the design of the Project,
· including pre-approved colors, materials and landscaping palettes. The Guidelines are
intended to provide supplemental design information on the buildings to be constructed
as part of the Project.
The overall scale of the Project is determined in the Development Agreement between
the City of Temecula and Advanced Cardiovascular Systems, Inc. ("Agreement").
These Project Design Guidelines are attached as an exhibit to the Agreement.
Capitalized terms in these Guidelines shall have the same meaning as defined in
Section I of the Agreement.
Section 2. Relationship to Development Code and Citywide Desi,qn Guidelines.
These Project Design Guidelines supplement the general development standards and
criteria in the Development Code and Citywide Design Guidelines. VVhen there is
disagreement between the Guidelines and the Citywide Design Guidelines, the Project
Design Guidelines shall control. If there is disagreement between the Agreement and
the Project Design Guidelines or the Citywide Design Guidelines, the Agreement shall
control. The following development standards in effect on the Agreement Date shall
apply to the Project, except as otherwise provided in the Agreement and these
Guidelines:
a) The development and performance standards applicable to the Business Park
Zone set forth in Chapters 17.08 and 17.24 of the Development Code;
b) The landscape requirements and standards applicable to office Development set
forth in Chapters 17.08, 17.24, and 17.32 of the Development Code;
c) Chapters 6 and 8 of the Citywide Design Guidelines; and
EXHIBIT 'C'
Exhibit C Design Guidelines 090902
Page 1
d) The City's Mount Palomar Lighting Ordinance.
Section 3. Amhitectural Desi,qn Concept.
The Project is not intended to replicate or overshadow any portion of the City, but rather
to complement the City and adjacent properties and to help accomplish the Project's
objective of creating a "corporate campus." The Owner's objective is that the Project
should be an asset to the City and region, as well as to the Owner. Scale, mass and
orientation should be visually interesting and appealing from the perspective of
neighboring inhabitants (both commemial and residential) and passers-by, while
simultaneously being efficient and sensitive to the Owner's needs. Structures and
amenities should be sensitive and responsive to the local climate. Colors, material and
texture are to be vaded and consistent with the surrounding region and evocative of its
culture. The Project should link the Property to the Existing Facilities as needed to
facilitate any shared uses and activities.
Section 4. Supplemental Desi.qn Standards.
a) The following amhitectural and site design concepts shall be considered in the
design of the Project:
1)
Design should be complementary or consistent with desirable
characteristics of the surrounding area in a way that contributes to the
establishment of a positive character for the area.
2)
While the principal buildings may be predominantly rectangular they shall
be designed in such a manner to avoid the appearance of a box-like
design and avoid excessive mass and bulk.
3)
Roof top equipment and machinery (exclusive of communications
antennas) will be screened from public view by parapet walls or other
integrated architectural features.
4)
The building design will incorporate varying architectural elements, such
as materials, textures, colors, window Sizes and fa(~ade composition, in
order to create interest and a variety of scale.
5) Main building entrances will incorporate additional features to emphasize
their location.
6)
A variety of complementary colors should be used, not just one color. The
base color and materials for principal office buildings in close proximity to
one another should be complementary. For example, the color and
materials utilized for the Existing Facilities are consistent with these
Guidelines.
EXHIBIT'C' Page 2
Exhibit C Design Guidelines 090902
7)
Parking structures will be designed in a manner to complement the
principal office buildings. Additional amhitectural design elements will be
applied to highly visible surfaces.
8) Water features are encouraged to enhance outdoor spaces and create
pleasant summer micro-climates.
9) Project signage shall be approved through the submittal of a Sign
Program approved by the City's Director of Planning.
b) The following landscape.design concepts shall be considered in the design of
Project landscaping:
1)
Recognize and reflect existing landscape and streetscape qualities
evidenced by established planting patterns along Solana Way and
Margarita Road.
2)
Continue and extend landscape qualities from the Existing Facilities,
including careful attention to pedestrian amenities such as shaded and
safe walkways, courtyards, open spaces and gardens.
3) Incorporate xeriscape and water conserving practices in the selection and
use of. plant materials and irrigation systems.
4) Incorporate native and drought tolerant vegetation to the maximum extent
practical.
Section 5. Amhitectural and Landscapin.q Palette Addendum.
The architectural and landscape palettes for the Project are located in the Addendum to
the Project Design Guidelines, further captioned, "Project Design Guidelines and
Approved Architectural and Landscape Palettes" (the "Addendum"). The Addendum
includes various colored exhibits. Copies of the Addendum shall be maintained by the
City Clerk's Office and the City Planning Department.
a)
Part One of the Addendum sets forth the approved architectural palette for the
Project. The Development may use any of the materials and colors in Part One
of the Addendum; provided, however, that the darkest shade of sienna (page 5 of
the Addendum) shall not be the predominant color of any building, but instead
used only as an accent color, except as otherwise approved by the Planning
Director. The architectural palette is intended to facilitate modem structures that
reflect their place in time, aesthetically, environmentally.and technologically. The
palette complements its location, and is cognizant of and sensitive to the
immediate neighbors and the City at large. The architectural palette includes the
list of approved exterior treatments, including glass, metal, plaster, concrete and
stone. The palette also includes color boards and photographs that show
examples of color combinations and exterior treatments. Photographs of
EXHIBIT 'C" Page 3
Exh~alt C Design Guidelines 090902
particular structures are intended for illustrative purposes only, to show how other
projects have made use of the approved colors and materials.
b)
Part Two of the Addendum sets forth the approved landscape palette for the
Project. The Development may use any of plant materials identified for the
characteristic landscape zones for the Project. This palette describes nine
characteristic landscape zones, and identifies suitable plant materials for use in
each zone.
c)
The architectural and landscape palette Addendum includes a site plan concept,
to provide an example of a possible.configuration of structures and landscape
zones on the Property. While this configuration is consistent with the Agreement
and the Project Design Guidelines, other configurations can also satisfy these
requirements. Nothing in the Design Guidelines is intended to require that the
Owner construct the exact project or utilize the configuration shown on the
conceptual site plan. An application for Development Plan approval shall set
forth the Owner's intended configuration of structures described in the
application, and the use of approved materials, colors, landscape zones and
plant materials.
Section 6. Minor Modifications to the Project Desi,qn Guidelines.
· The Planning Director is authorized to approve minor modifications to the architectural
.-and landscape palettes set forth, in the Addendum. All minor modifications shall be
made in writing, and set forth in an operating memorandum as described in Section 6.2.
A copy of the approved minor modifications shall be maintained by the City Clerk and
Planning Department. The Planning Director shall have the discretion to determine
whether a particular modification is minor and may be processed administratively, or
whether the modification requires consideration by the Planning Commission. No public
hearing shall be required for the Planning Commission to consider any proposed
modifications. The Planning Commission's decision shall be subject to appeal to the
City Council.
EXHIBIT'C' Page4
Exh~ECDes~n Guidelines090902
EXHIBIT "D~l":.Setback Plane Illustration 2
Exhibit "D-2"
SETBACK PLANE DEFINITIONS
AND RESTRICTIONS
Section 1. Definitions.
As used in Section 2.3.4 and Exhibits D and D-l, the following
terms shall have the stated meanings.
(a) "Solana Property Line" marks the southernmost extent of the
Property at Solana Way, extending from the Margarita Property
Line to the point where Owner's western property line meets
Solana Way.
(b) "Margarita Property Line" marks the easternmost extent of the
Property at Margarita Road, extending from the Solana Property
Line to the point where Owner's northern property line meets
Margarita Road.
(c) "Midpoints": There are four midpoints. (1) Midpoint "A" is the
point on the Margarita Property Line that is equidistant between
Owner's northern property line and the middle of Street "B" as
shown on the Tentative Parcel Map. (2) Midpoint "B" is the
point on the Margarita Property Line that is equidistant between
the middle of Street "B" and the Solana Property Line. (3)
Midpoint uC" is the point on the Solana Way Property Line that is
equidistant between the Margarita Property Line and the middle
of the access from the Property to Solana Way as shown on the
Tentative Parcel Map. (4) Midpoint "D" is the point on the
Solana Property Line that is equidistant between the middle of
the access from the Property to Solana Way as shown on the
Tentative Parcel Map, and Owner's western property line where
~t meets Solana Way.
(d) "Fifty Foot Points": There are four Fifty Foot Points,
corresponding with each of the four Midpoints. Each Fifty Foot
· Point is established by extending a horizontal line from a
Midpoint thirty-five (35) feet into the Property, and then going up
vertically by fifty (50) feet.
(e) USetback Area" extends thirty-five (35) feet from the Margarita
Property Une and the Solana Property Line, into the Property.
No buildings shall be constructed above finished grade within
. the Setback Area. Underground structures are permissible
· within the Setback Area. Owner shall landscape the Setback
Area consistent with an approved Development Plan.
(f) "Setback Planes": There are four Setback Planes,
corresponding with each of the four Midpoints (and the line
Exh~it D-2 081502.doc
segment from which each was created), and each of the four
Fifty Foot Points. Each Setback Plane is established by
extending a line from the Midpoint at an angle to intersect with
its corresponding Fifty Foot Point. Each Setback Plane
continues at that angle (up and westerly from Margarita Road;
up and northerly from Solana Way). (See Exhibits "D" and D-
1.") Each Setback Plane may be referred to by the letter of its
corresponding midpoint; e.g., Setback Plane "A" is the plane
that relates to Midpoint "A.'
Section 2. Setback Plane Hei,qht Restriction.
Notwithstanding the eighty (80) foot height limitation generally
applicable to the Property, no structure shall be higher than a respective
Setback Plane. Examples: (i) A building located west of Margarita Road
and between Street "B" and Owner's northern propert7 line shall not be
higher than the level of Setback Plane "A." (ii) A building located west of
Margarita Road and between Street "B" and Solana Way shall not be
higher than the level of Setback Planes UB" and "C." (iii) A building located
west of Margarita Road and north of Solana Way, between Margarita Road
and the access from the Property to Solana Way as shown on the
Tentative Pamel Map, shall not be higher than the level of Setback Planes
"B" and "C." (iv) A building located north of Solana Way and west of the
access to Solana Way as shown on the Tentative Parcel Map shall not be
higher than the level of Setback Plane
Exhibit D-2 081502.doc
EXHIBIT
APPROVED ACCESS POINTS
.J
GUIDANT CORPORATION CAMPUS, Temecula, California * 00287:50
Exhibit "F"
OFF-SITE PUBLIC IMPROVEMENTS
I. Tentative Parcel Map (TPM) 30107 Conditioned Public Improvements
Improve Solana Way (Major Highway Standards - 100' R/W) to
include installation of half-width street improvements, paving, curb
and gutter, sidewalk, street lights, drainage facilities, signing and
striping, raised landscaped median. The intent of this condition is
that the improvements shall extend along the frontage of the
Property, and that the median shall remain open at Motor Car
Parkway. The final geometric configuration of this median,
including other possible openings for existing driveways, shall be as
directed by the City Engineer at the time of final design.
Bo
Improve Margarita Road (Arterial Highway Standards - 110' P/W)
to include installation of a deceleration lane to access the private
Street "A." Said lane is to be 10 feet wide, 150 feet long, and is to
include a transitional distance of 120 feet.
Improve Margarita Road (Arterial Highway Standards - 110' RA/V)
to include median/striping modifications, etc. to provide for a full
tuming movement driveway (i.e., left turn in from Margarita Road
onto private Street "B").
Note: Other property owners within the TPM other than the City and Guidant will
be partially responsible for a portion of these improvements required by the TPM.
II. Additional Public Improvements
Reserve 12 feet of the Property along its frontage on Margarita
Road for future Cibj purchase to allow for an additional 12 foot wide
southbound lane, as further described in Section 2.12 of the
Agreement. The cost of constructing the additional lane shall be at
the City's expense. Improve Margarita Road (Arterial Highway
Standard - 110' R/W) to include median/striping modifications to
provide for double left turn lanes from southbound Margarita Road
to eastbound Solana Way, as shown in Exhibit "F-I." The
improvements shall include modification of the traffic signal and
widening of the pavement on Solana Way east of Margarita Road
to.accept the double left turn traffic. The required widening shall be
adequate to provide for two full eastbound lanes east of Margarita
Road and a transitional distance, with a combined length of up to
Exhibit F Offs[tes 081902.doc
600'. The City represents that it has sufficient R/W along the south
side of Solana Way to accommodate this required widening.
Improve Ynez Road at Motor Car Parkway to include installation of
a deceleration lane to access Motor Car Parkway. The lane shall
be 10 feet wide, 150 feet long, and shall include a transitional
distance of 120 feet. The deceleration lane shall be included within
existing public R/VV through a combination of restriping of the
northbound side of Ynez Road, along with modifications to the
traffic signal at Motor Car Parkway.
Improve Motor Car Parkway to acceptable City standards, as
described in Exhibit "H."
Improve and reconstruct the median in Margarita Road south of
private Street "B" to accommodate a single northbound left turn into
Street "B." Signalize the intersection of Margarita Road at Street
"B" as a full function, four-way intersection.
All improvements shall include installation of paving, curb and gutter, sidewalk,
street lights, drainage facilities, signing and striping, and raised landscaped
median as reasonably determined by the City Engineer. Engineering
· specifications set forth in this Agreement shall be subject to modification by
agreement of the City Engineer and Owner as set forth in an operating
memorandum as described in Section 6.2.
III. Pedestrian Bridge
Construct the pedestrian bridge across Ynez Road in the vicinity of Motor
Car Parkway that will connect the Existing Facilities with the Project as
described in Section 2.13.
Exhibit F Offsites 081902.doc
Exhibit "F 1"
'~OLANAWAy S~RiPING.PLAN
Exhibit "G"
ON-SITE PUBLIC IMPROVEMENTS
1. Traffic signal easement to support loop detectors on the westerly
leg of the Margarita Road/Street "B" intersection.
Note: On-site public improvements which may be required by public agencies
other than City are not referenced here.
Exhibit G On-Sites 081602.doc
Exhibit "H"
MOTOR CAR PARKWAY ENGINEERING STANDARDS
Improvements to Motor Car Parkway shall be subject to and include the
following:
Removal and replacement of broken or heaved concrete within the
public dght of way;
Removal and replacement of all brick pavers, asphalt pavement and
base materials with the replacement asphalt pavement structural
section to be designed to support a Traffic Index of 7.0;
Extend the storm drain system to the curbline to remove the cross
gutter and median curb inlets in the street;
o
Place sidewalk on both sides of the street, wherever sidewalk does not
exist as of the Agreement Date;
Replace substandard driveway approaches with commercial driveways
with handicap access, oras an altemative, at Owner's election, seek
and obtain an encroachment permit from City to allow individual
property owners to continue to maintain non-standard driveways within
the public right of way. Driveways may only remain under
circumstances where the existing sidewalk meets or can be modified to
meet ADA standards. Approval of a requested encroachment permit
shall not be unreasonably withheld by City;
Retain the landscaped median islands and modify as described in
Exhibits H-l, H-2 and H-3.
Modify the street light system to meet standards as described in
Exhibits H-l, H-2 and H-3.
Perform other improvements as necessary to meet the requirements
described in Exhibits H-l, H-2 and H-3.
o
A new City standard street dedication, 84' wide, shall be part of the
grant of dedication to City as shown on Exhibits H-l, H~2 and H-3. The
existing private street easement for Motor Car Parkway may be
quitclaimed by the property owners.
10.
The dedication of right of way for the street will create circumstances
where existing buildings are within setback areas typically required by
Exhibit H Motor Car Pan~'way 092602
City. City would not ordinarily allow structures or parking within such
areas. City agrees that no existing structure, on-site parking or use
shall be considered nonconforming as a result of the dedication of the
street to City, and that all such structures, parking and uses shall be
considered conforming as to setback requirements. City may require
any new buildings, on-site parking or use to comply with its applicable
setback requirements.
11.
Owner shall submit a set of improvement plans to City for its review
· and reasonable approval, showing existing conditions and proposed
modifications, consistent with Exhibits H through H-3.
Exhibit H Motor Car Parkway 092602
EXHIBIT 'H- I '
MOTOR CAR PARKEAY - UPGRADES TO PUBLIC STREET STANDARDS
(REFER TO EXHIBIT H-$ FOR DESCRIPTIONS OF THESE IMPROVEMENTS)
MOTOR
PAVING
SIDEWALK
CAR PARKWAY
ALTERNATE ! LOCATION OF
TRANSPORTER DROP-OFF.~
SEE DETAIL 'A' AT LEFT
DETAIL 'A__' .' ~ SCALE ~' :
AL T. ! LOCA liON OF "
RANSPOR. TER DROP-OFF
._ ?_ ~_c~_L~_ ~ _'___ ~_ ~ ...... _
Latitude 33 ~
4~3 Paramour Dr. 2nd ~r,
San Diego. Ca. 92123
Tel 858~751-0633 Fax 858-75t-0634
DA~:9-4-02 ~B: 570.0
~70-Ex exPi~;=,~w~ ~-~-0~ 3:56=3~ pm. EST
LECEND
ALTERNATE 2
LOCMTON OF TRANS-
PORTER DROP-OFF
SEE D£TAIL
'B' ~3N
MA TCHUNE -
EXISTING IMPROVEIdENTS/ACCESS EASEMENT LINE
PROPOSEO IMPROVEMENTS/PUBLIC RIGHT OF WAY LINE
INOICATES 'REFERENCE TO SPECIFIC TYPES OF
UPGRAOES OR IMPROVEMENTS - SEE EXHIBIT H-$
FOR SPECIFICS
EXHIBIT 'PI- £ '
MOTOR CAR PARKWAY - UPGRADES TO PUBLIC STREET STANDARDS
(REFER TO EXHIBIT H-$ FOR DESCRIPTIONS .OF THESE IMPROVEMENTS)
M~ TCHLINE ALTERNATE 2 LOCATION
OF" TRANSPORTER
OROP-OFF. SEE OETAIL
'B' BELO~ RIGHT
I
SOLANA FAY
AEI"=80'
LatitZ~de 33 ~,
4933 Pa~mo~t Dr. 2nd fir.
San Diego, Ca. 92123
Tel 85~-751-0633 Fax 8~-751-0634
5~O-ex exhi~i~ ~wQ ~-!~-~ 3:56:3~ pm E~T '
2-l/FAY
LEFT TURN MEDIAN
PAWNG
MEOIAN
CURB AND LANDSCAPING
STREET LIGHT
CURB
AL TERNATE 2- LOCATION OF
TRANSPORTER DROP-OF~
(SEE EXHIBIT H-1 FOR PLAN LOCATION)
NO SCALE
EXHIBIT 'II. '3'
MOTOR CAR PARKWAY - UPGRADES TO PUBMC STREET STANDARDS
(REFER ALSO TO EXHIBIT H-I dc H-2 FOR PLAN LOCATIONS OF THESE IMPROVEMENTS)
1. APPROXIMATE LOCATION OF EXISTING PRIVATE ACCESS EASEMENT. ALL PRIVATE ACCESS EASEMENTS CAN BE OUITCLAIMED BY OFINER5
UPON ACCEPTANCE OF RIGHT OF WAY DEDICATION BY O~Y.
2. PROPOSED PUBLIC STREET RIGHT-OF-WAY TO THE CITY OF TEMECULA DEDICATEO 8Y THE ADJOINING PROPERTY OWNERS,
3. PROPOSEB SIDEWALK'EASEMENT TO BE GRANTED TO THE CITY OF TEMECULA BY THE ADJOINING PROPERTY O¥~11ERS TO ENCOMPASS
'EXISTING MEANDERING SIDEWALK.
4. EXISTING CURB AND SIDEWALK TO CENCRALLY REMAIN UN!~ESS OTHERWISE SHOWI~ ON PLAN, ALL BROKEN OR HEAVED ELEMENTS OF CURB,
SIDEWALK, & CROSS GUTTERS TO BE REMOVED & REPLACED.
5. EXISTING A.C. DRIVEWAY TOME REMOVED-DRIVEWAY IS TOO STEEP TO MEET A.D.A. CROSSING STANDARDS AND IS CURRENTLY FENCED
OFT FROM USE BY PROPERTY OWIqER. REPLACE IffTH NEW CURB, CUTTER, AND CONTIGUOUS SIDEWALK AND LANDSCAPING TO MATCH
EXISTING. . ·
6. EXISTING A.C. PAYING AND 8RICK PAVERS TO BE. ENTIRELY REMOVED BETtffZEN LIMITS OF CURBS/CROSS CUTTERS/lviEBIAN CURBS AND
REPLACED WITH CITY STANDARO ASPHALTIC CONCRETE OVER ABGREGA TE BASE, STRUCTURAL SECTION TO MEET A TRAFFIC INDEX OF 7.0.
7. RECONSTRUCT EXISTINB MEDIAN CUR8 INLETS AS STORM BRAIN CLEANOUT MANHOLES.
8. RAISE ELEVATION OF MEDIAN CUR8 IN THIS AREA TO GENERATE I 1/2,~ CROWN TO CUTER CURBS AND TO NEW CURB INLETS.
9. INSTALL NEW CURB INLETS TO CITY STANBARDS AT LOW POINT IN STREEI~ INSTALL STORM BRAIN CONNECTORS AS REDUIREO.
10. EXISTING STREET LIGHTS IN MEOIANS ALONG NORTH-SOUTR pORTION'OF MOTOR CAR PARKWAY SHALL BE REPLACED WITH BUAL OPPOSING
LUMINARIES EQUIVALENT TO CITY STANDARB STREET UGHTS'MOUNTED ON THE EXISTING POLES FOR USE IN THE MEDIAN. IF EXISTING POLES.
OR POLES AND FOUNDATIONS, CANNOT BE REUSED FOR RETROFITTING NEW LUMINAIRES, THEN THEY SHALL BE REPLACED WITH EQUIVALENT
OTY. SrANOARO POLES. OR POLES AND FOUNDATIONS..EXISTING'CONDUIT RUNS MAY BE PRESERVED. NOTE THAT LOCATIONS OF EXISTING.
STREET LIGHTS ARE APPROXIMATE 8UT THE ACTUAL LOCATION AND NUMBER OF LIGHTS MAY NOT :DE CORRECII. Y DEPICTED IN EXHIBIT H-L
[I. EXISTING STREET UGHTS IN MEOtANS ALONG THE EAST-WEST PORTION OF MOTOR CAR PARKWAY SHALL BE- REPLACED AS PER NOTE lO
ABOVE. IF THE.MEOIANS IN THIS SE4~EN:[ OF ROAD ARE REMOVED, AT GUIOANT"S ELECtiON,' TO ACCOMMODATE NEW STREET STRIRIN¢,
'HO#~VEI~, TIgEN THE LIGHTS SHALL 8E TIEPLACED WITH STANDARD C1TY STREET LIGHTS LOCATEO IN THE .PARKWAY.
12. ~MEOIANS IN THE NGRTH'-SOUTH PORTION OF MOTOR CAR PARKWAY MAY REMAIN BUT THE LANDSCAPING SHALL BE TRIMMED OR REMOVED
WtiERE NECESSARY TO MAfflTAIN AREQUATE SIGHT DISTANCE SAFETY STANDARDS. 1HE TURF LAND~CAPING (GRA5S) IN THE MEDIANS SHALL
8E REMOVEO AND REP'.ACED WITH A LOI~ER MAINTENANC£', LOtgER WATER CEMAND MATERIAL.
t3: MEDIANS IN THE EAST-WEST PORTION OF MOTOR CAR PARKF[AY MAY ALSO REMAIN IN PLACE SUBJECT TO THE CONDITIONS IOENTIFIEO IN
ITEM 12 ABOVE; OR, AS AN ALTERNATIVE, AT CUlDANT'S ELECTION, MAY BE REMOVED AND REPLACEO IffTH ASPHALT PA~1NG AS DESCRI8EO
IN NOTE6 ABOVF. IN THE EVENT THIS AREA IS REQUIRED FOR LANE STRIPING..
· I4.'SEENOTE 4 REGARDING REOUIREMENT TO REPLACE ALL 8RONEN OR HEAVEO CONCRETE. MAINTENANCE OF TURF IN THE PARKWAYS (STRIP
"OF LAND BETY, EEN CUR8 AND RIGHT-OF-WAY LINE) IS THE RESPONSIBlUTY OF THE P.O.A. OR ADJACENT OWIVERS AND MAY REMAIN.
15: TKESE ORIVEYlA~ SHALl. BE REPLACED ~TH A CITY OF TEMECULA STANDARD CONCREE COMMERCIAL ORIVElYAY IffTH STANDARD FLARES
(CURRENTLY THE DRIVES ARE. "RAOIUSEB RETURN' DRIVES IffTH A.%OHALT OR BRICK PAVING). AS AN ALTERNATIVE, DRivE MAY 8E LEFT IN
~ACE AND AN ENCROACHMENT PERMIT O~TAINED BY THE AOJACENT OtfNER ALLO~NG THE EXISTING NON-STANDARD DRIVEWAY TO REMAIN.
16. THESE DRIVEIfAYS SHALL 8E RECONSTRUCTED TO FLARED, CONCRETE PAVED STANDARD COMMERCIAL DRIVEWAY. THE VERTICAL RAMP IN
THE APRON SHALL BE DESIGNED TO RE~'AIN ALL STREET CUTTER FLOW WITRiN THE STREET AND PREVENT STREET DRAINAGE FROM ENTERING
THE PRIVATE PROPERTY. : *..-
17. THE OWNERS OF THE FRONTING PROPERTY ALONG MOTOR CAR PARKWAY MAY ELECT TO ADD A TRANSPORTER TR{JCK CROP OFF AI~EA
SAID DROP-OFF'SHALL BE DESIGNED TO 'THE':4PPRQXIMATE DIMENSIONS AS SHOI~I ON DETAIL 'A' ON 'EXHIBIT 'H.;I' OR EXHIBIT 'B' ON
EXHIBIT H-2. THE PURPOSE OF THE DROP-OFF SHALL BE FOE THE TEMPORARY PARKING OF AUTO-TRANSPORTER TRUCKS IN ORDER TO
· FACILITATE UNLOADING OF VEHICLES WITHOUT DISRUPTION TO TRAFFIC OR EMERCENC'Y VEHICLES. TWO POSSIBLE.LOCATIONS OF THIS
DROP-OFF 'ARE iDENTIFIEO ON EXHIBITS H-I & H-2: HOV~'VER. THE FINAL LOCATION AND OIMENSIONS OF SAIO BROP-OFF 15 SUBJECT TO
'REFINEMENT 8Y THE PROPERTY OWNERS ASSOCIATION'AND APPROVAL BY THE CITY ENGINEER OF THE CITY OF TEMECULA. THE CRITERIA FOR
THE SELECTION OF THE FINAL DROP-OFF LOCATION ANO !TS GEOMETRY SHALL BE THE SUDJ£CT OF AN EVALUATION FOR TRAFFIC SAFETY
COMMISSIONEO BY QUIOART. 18. EXISTING 24" OIAMETER PUBLIC STORM DRAIN PER COUNTY OF RIVERSIDE Dt'~G
Latitude 33
~4933 Paramount ~r. 2~d Rt.
]TeI"~SB-751~06~ Fax ~8-751-0634
I
NO. 847-EE WITHIN STORM DRAIN EASEMENTS GRANTED PER PARCEL MAP NO.
23354 [17/0 LOCATIONS). STORM ORAINS TO REMAIN PUBUC AND TO BE MAINTAINED
BY THE CITY OF TEMECULA.
~-!~-0-~ 3:56:3_P ~n EST
Exhibit "I"
DEVELOPMENT PROCESSING FEES
Anticipated Fee Worksheet and Fee Amounts
This preliminary fee worksheet is a guide to potential fees that may be assessed for the Guidant Expansion
Project and is based upon information provided by the applicant. (The applicant is ultimately responsible for
verifying the accuracy of the fee mounts.) In some cases, until de,ailed project plans have been submitted, the
amounts for many of the expected fees cannot be determined.
Project Location:
Project Square Footage/Acreage:
Project Description:
Application Type:
East of Ynez Road, north of Solana Way and West of Margarita Road
Approximately 480,000 sq fi on 27.75 acres
An office complex for the Guidant Corporation in a campus setting
with parking, with accessory facilities such as a fitness center,
childcare, and food services.
Development Plan
Prior to Approval
Payable at ~pplication Submittal to the Community Development Department
Comprehensive Development Plan for the site and structures (excludes revisions) ........ $ 5,880.00
California Enviroamental Quality Act (CEQA) Fee * ............................................................ 0.00
Development Review Committee (DRC) Landscape Plan Fee ............................................. 200.00
Traffic Study (if required, the cost would be $780) ............................................................... 0.00
City of Temeeula Total Application Filing Fee ......................................................................... $ 6,080.00
UCR Regents Fee (Separate Check) ........................................................................................ 45.00
Deparmaent of Environmental Health (Separate Cheek) ........................................................ 136.00
Total Application Filing Fee ......................................................................................................... $6~61.00
After Approval
Planning
Payable Within Forty-Eight (48) Hours of Project Approval
Notice of Determination ** ......................................................................................................... $ 64.00
Payable Prior to Grading Permit Issuance
Stephens Kangaroo Rat Mitigation Fees ($500.00/gross acre) *** ............................................... $ 3,500.00
· Payable at Building Plan Submittal
Consistency Check (for each separate construction phase) .......................................................... $ 370.00
Payable Prior to B;d!~ing Permit Issuance
Landscape Plan Check (assumes 30% site landscaping) ............................................................... $ 2,970.00
Landscape Inspection ..................................................................................................................... $ 225.00
Submit l~rlar to Certificate of Occupancy
Landscape Maintenance Bond (Per DA: Corporate guarantee will be accepted) ..........................$ 0.00
Building and Safety (ASSUMES TYPE H 1-HOUR CONSTRUC'I~ON)
Payable at Building Plan Submittal
Plan Check ..................................................................................................................................... $67,598.63
Payable Prior to B_,d!d!ng Permit Issuance
Permit Fee ..................................................................................................................................... $90,131.50
Strong Motion ............................................................................................................................... $ 9,301.99
Electrical, mechanical, plumbing (based on fkture count) .......................................................... $ 7,500.00
F:\Cllell~(~ida nt~l~xllibit I Der Processing Fees 091802.doc
Fire Department
Payable at Building Plan Submittal
Fire Plan Check (PER BUILDING) .............................................................................................. $ 582.00
Payable Prior to Building Permit Issuance
Fire Plan Check Inspection ............................................................................................................ (included)
Fire Sprinkler (PER RISER) ............................................................................................................ $ 582.00
Manual Fire Alarm (PER SYSTEM) ............................................................................................... $ 369.00
Other Fire Suppression Systems (i.e., hood duet, spray booths, etc.) (FEE FOR EACH ONE) ....$ 369.00
Public Works/Engineering
Fees for plan check and inspection are estimated based on site and street improvements
(flatwork) cost exclusive of building construction. The fee is based on engineer's cost
estimate. Contact Public Works Staff for assistance in calculating your Public Works fees.
Engineer's construction cost estimate
(ESTIMATES ARE FOR PRECISE GRADING ONLY. ROUGH GRADING AND
STREET IMPROVEMENTS ARE NOT INCLUDED)
Payable Prior to Grading Plan Submittal
Plan Check Fees
On-site and off-site improvements
(curb and gutter, concrete flatwork, storm drain, etc.)
4% oflst $20,000.00 $
3.5% of next $80,000.00 $
3.25% over $100,000.00 $
Grading
(0-5,000 cubic yards) $500.00 $
(5,001-100,000 cubic yards) $750.00 $
(+ $50.00 for each additional 10,000 cubic yards over 100,000 cubic yards) $1,000.00 $__
Payable Prior to Grading Permit Issuance
Engineer's cost estimate
Inspection Fees
On-site and off-site improvements (curb and gutter, concrete flatwork, storm drain, etc.)
4% oflst $20,000.00 $
3.5% of next $80,000.00 $
3.25% over $100,000.00 $
(0-500 cubic yards) $350.00
(501-10,000 cubic yards) $500.00
(10,001-100,000 cubieyards) $1,000.00
(over 100,000 cubic yards) $1,300.00 + $50.00/10,000 over 100,001 cubic yards
?.
?.
?.
?.
Grading Deposit
? .
$995.00
$ 7.
$ ?.
$ ?.
Payable Prior to Encroachment Permit Issuance
Encroachment Permit (for each permit, $25))
Motor Car Parkway
There will also be a fee for plan cheek and inspection for Motor Car Parkway;
the fee is expected to be about 7% of ~e engineer's construction cost estimate.
Community Services District
CSD-Maintained Landscape Plan Review
F: ~21iems~OuidanfiB~"oit I ~ Pro~-~ Fees 091802.doc
Landscape Plan consultation with the City landscape architect (if requested, $125))
Landscape Inspection Fee ($2500 for the first 10 inspections)
Street Lighting - Advance Energy Fee
(if applicable, ranges between $120 and $300 per light)
Landscape Improvements for CSD-maintained areas (e.g. medians)
Faithful Performance Bond (if necessary) 100% of construction cost estimate
Labor and Materials Bond (if necessary) 50% of construction cost estimate
Warranty Bond (if necessary) 10% of construction cost estimate
Other Agencies that will assess fees on the project include:
School Fees: Temecula ValleY Unified School District
Water: Rancho California Water District (RCWD)
Sewer: Eastern Municipal Water District (EMWD)
Riverside County Health Deparanent
Riverside County Flood - Area Drainage Plan
'.Telephone: General Telephone and Electric (GTE)
Electric: Southern California Edison (SCE)
$ ?.
$ ?.
$ ?.
$ ?.
$ ?.
$ ?.
Foomotes:
* No additional CEQA processing fees are amieipated because the environmental analysis and mitigation
meaatres have been previously identified.
** Assumes that a Notice of Determination will be filed to document that a decision was made using a
previously prepared environmental document.
*** Assumes the SICR Fee has already been paid on the 20 acres at the corner of Solana Way and Margarita
Road; and that the Fee is due only on the seven acre site on Motor Car Parkway, unless receipts can be
provided indicating payment of fees in full, then no additional fees will be assessed.
F:\Cli~m~\ (hidant~.xlfibit I Dev Processing Fees 091802.doc
Exhibit "J"
DEVELOPMENT IMPACT FEES
1. City of Temecula Development Impact Fee (DIF), calculated at
$0.866 per square foot of gross floor area.
Exh~)lt J DIF 091002.doc
Exhibit "K"
CITY'S LEGAL OPINION
[Date]
Advanced Cardiovascular Systems, Inc.
26531 Ynez Road
Temecula, California 92591-4628
Attention: Vice President Customer Service and
Site Operations
Re: Development Agreement between the City of Temecula and
Advanced Cardiovascular Systems, Inc.
Ladies and Gentlemen:
I am the City Attorney for the City of Temecula (the "City'S, and in
such capacity am familiar with the relevant facts and circumstances in
connection with the adoption and execution of that certain Ordinance No.
of the City (the "Ordinance"), adopted by the City Council of the
City (the "City Council"). The Ordinance approves a Development
Agreement (the "Agreement") between the City and Advanced
Cardiovascular Systems, Inc. ("ACS"), authorizing the Development of
approximately 27.757 acres of land in the City. Capitalized terms not
otherwise defined herein shall have the meanings stated in the
Agreement.
I have examined and relied upon such records, documents,
certificates, and other matters as are in my judgment necessary to enable
me to render the opinions expressed herein. In such examination, I
assumed the legal capacity of all natural persons and business
organizations, the genuineness of all signatures and the authenticity of all
documents submitted to me as originals and the conformity to original
documents of all documents submitted to me as photostatic or certified
copies. I have also assumed the accuracy, completeness and authenticity
of all public records made available to me by the City. I have also
Exhibit £ City Opinion 091002
Advanced Cardiovascular Systems, Inc.
[Date]
Page 2
assumed that all writings I have relied on which are dated as of an earlier
date are still accurate as of the date of this opinion. Based on the
foregoing, and with regard to California law, I am of the opinion that:
1. The City is a municipal corporation duly organized and validly
existing under the laws of the State of California;
The Ordinance authorizing execution of the Agreement was duly
adopted at a meeting of the City Council of the City which was
called and held pursuant to law with all public notice required by
law and at which a quorum was present and acting throughout,
and the Ordinance is in full force and effect and has not been
amended, modified,.supplemented or rescinded;
The adoption of the Ordinance and the execution and delivery of
the Agreement and compliance with the provisions of the
Agreement under the circumstances contemplated by the
Agreement do not and will not conflict with or constitute on the
part of the City, a breach of or default under any agreement or
other instrument applicable to or binding upon the City or any
court order, administrative order, or consent decree to which the
City is a party; and
Except for the validation action pending to confirm the legality of
the Owner Participation Agreement between the
Redevelopment Agency of the City of Temecula and ACS
(Riverside Superior Court No. RIC 373693)', there is no action,
suit, proceeding, inquiry or investigation at law or in equity
before or by any court, public board or body, pending or, to my
· . knowledge, threatened against the City: (a) to restrain or enjoin
· the execution or delivery of the Agreement; (b) in any way
'contesting the existence or powers of the City with respect to
: the execution and delivery of the Agreement; or (c) which is
likely to adversely affect enforceability of, or the authority or the
ability of the City to perform its obligations under, the Agreement
and the Ordinance.
The opinions set forth above are as of the date hereof only, and I
assume no obligation to update or supplement this opinion to reflect any
facts or circumstances that may hereafter come to my attention or any
changes in law that may hereafter occur or become effective.
The opinions expressed herein relate solely to, are based solely
upon and are limited exclusively to the laws of the state of California. This
opinion is fumished in connection with the Agreement and may not be
Exhibit K City Opinion 091002
Advanced Cardiovascular Systems, Inc.'
[Date]
Page 3
relied upon in connection with any other transaction or by any person
other than you.
Very truly yours,
RICHARDS, WATSON& GERSHON
Cc'
By: Peter M. Thorson
City Attorney
City of Temecula
James B. O'Grady, Assistant City Manager
Susan L. Walker, Esq.
Michael R. Woods, Esq.
Exhibit K City Opinion 091002
Exhibit "L"
OWNER'S LEGAL OPINION
[Date]
City of Temecula
43200 Business Park Drive
P.O. Box 9033
Temecula, California 92589-9033
Attention:
Shawn Nelson
City Manager
Re: . Development A.qreement between the City of
Temecula and Advanced Cardiovascular Systems, Inc.
Ladies and Gentlemen:
I am counsel for Advanced Cardiovascular Systems, Inc., a
California corporation ("ACS"), and in such capacity am familiar with the
relevant facts and cimumstances in connection with approval and
execution by ACS of a Development Agreement between ACS and the
City of Temecula (the aAgreement"). I am also familiar with the corporate
status of ACS. The Agreement was approved by the City through
adoption of that certain Ordinance No. , and authorizes the
Development of approximately 27.757 acres of land in the City.
Capitalized terms not otherwise defined herein shall have the meanings
stated in the Agreement.
· I have examined and relied upon such records, documents,
certificates, and other matters as are in my judgment necessary to enable
me to render the opinions expressed herein. In such examination, I
assumed the legal capacity of all natural persons, the genuineness of all
signatures and the authenticity of all documents submitted to me as
originals and the conformity to original documents of all documents
Exhibit L Owner Opinion 090602
City of Temecula
[Date]
Page 2
submitted to me as photostatic or certified copies. I have also assumed
the accuracy, completeness and authenticity of certificates and of all
corporate records and information made available to me by ACS. I have
also assumed that all certificates dated as of an earlier date are still
accurate as of the date of this opinion. Based on the foregoing, and with
regard to California law, I am of the opinion that:
1. ACS is a corporation duly formed and validly existing under the
laws of the State of California;
2. The execution, delivery and performance by ACS of the
Agreement are within its corporate powers. The Agreement has
been duly authorized by all necessary corporate action on the
part of ACS and has been duly executed and delivered by ACS;
The execution and'delivery of the Agreement and compliance
with the provisions of the Agreement under the circumstances
· contemplated by the Agreement do not and will not conflict with
or constitute on the part of ACS a breach of or default under any
agreement or other instrument apPlicable to or binding upon
ACS or any court order or consent decree to which ACS is a
party; and
· Except for the validation action pending to confirm the legality of
the Owner Participation Agreement between the
Redevelopment Agency of the City of Temecula and ACS
(Riverside Superior Court No. RIC 373693), there is no action,
suit, proceeding, inquiry or investigation at law or in equity
before or by any court, public board or body, pending or, to my
knowledge, threatened against ACS: (a) to restrain or enjoin the
execution or delivery of the Agreement; (b) in any way
contesting the existence or powers of ACS with respect to the
execution and delivery of the Agreement; or (c) which is likely to
adversely affect the enforceability of, or the authority or the
ability of ACS to perform its obligations under, the Agreement.
For purposes of factual matters relevant to the opinion expressed
herein, I have relied generally upon certificates and statements of an
officer of or other counsel to ACS. I have acted as outside counsel to
ACS in connection with the negotiation, preparation and execution of the
Agreement, but am not familiar with all of the agreements and contracts of
ACS. I have not undertaken any independent investigation to determine
the accuracy of any such certificates or statements, and any limited inquiry
undertaken by me during the preparation of this opinion should not be
regarded as such an investigation. No inference as to my knowledge of
Exhibit L Owner Opinion 091802
City of Temecula
[Date]
Page 3
any matters bearing on the accuracy of any such statements should be
drawn from the fact of my representation of ACS.
In rendering this opinion, I have assumed the following:
1. There are no agreements or understandings among the Parties,
written or oral, and there is no usage of trade or course of prior
dealing among the Parties that would, in either case, define,
supplement or qualify the provisions of the Agreement;
2. There has not been any mutual mistake of fact or
misunderstanding, fraud, duress or undue influence; and
3. The conduct of the Parties to the transaction has complied with
any requirement of good faith, fair dealing and conscionability.
I also call to your attention the fact that under the 1989 Report of
the Committee on Corporations of the Business Law Section of the State
Bar of California, certain assumptions, qualifications and exceptions are
implicit in opinions of lawyers. Although I have expressly set forth some
assumptions, qualifications and exceptions herein, I am not limiting or
omitting any others set forth in such report or otherwise deemed standard
by practice for lawyers in California.
The opinions set forth above are as of the date hereof only, and I
assume no obligation to update or supplement this opinion to reflect any
facts or circumstances that may hereafter come to my attention or any
changes in law that may hereafter occur or become effective.
The opinions expressed herein relate solely to, are based solely
upon and are limited exclusively to the laws of the state of Califomia. This
opinion is fumished in connection with the Agreement and may not be
relied upon: iD connection with any other transaction or by any person
other than you.
Very truly yours,
MICHAEL R. WOODS
A Professional Corporation
By: Michael R. Woods
Exhibit L Owner Opinion 091802
City of Temecula
[Date]
Page 4
Cc:
Susan L. Walker, Esq.
Peter M. Thorson, Esq.
James B. O'Grady, Assistant City Manager
Exhibit L Owner Opinion 091802
Exhibit "M"
LEGAL HOLIDAYS
1. New Years Day (January 1st);
2. Martin Luther King Day (third Monday in January);
3. President's Day (third Monday in February);
4. Memorial Day (last Monday in May);
5. Independence Day (July 4th);
6. Labor Day (first Monday in September);
7. Veterans Day (November 11th);
8. Thanksgiving Day (fourth Thursday of November);
9. Friday following Thanksgiving Day;
10. Christmas Day (December 25th).
Holidays falling on Sunday shall be observed on the following Monday. Holidays
falling on Saturday shall be observed on the preceding Friday.
(Reference: Temecula Municipal Code Section 2.32.010 as of July 1, 2002.)
Mitigation Monitoring Program
Project Description: Development Agreement between the City of Temecula and the
Guldant Corporation
Location:
Applicant:
Generally located north of Solana Way, west of Margarita Road,
south of Overland DHve, and east of Ynez Road In the City of
Temecula, County of Riverside, California.
Guldant Corporation
26531 Ynez Road
Temecula, CA 92591-4628
Aesthetics
General Impact:
Mitigation Measures:
Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party:
;
Have a substantial adverse effect on a scenic vista.
(1). To ensure that the scale and character of proposed
development along Margarita Road and Solana Way are
compatible with adjacent residential uses, the final Site Plan shall
reflect the following:
* A minimum 35-fcot landscaped setback shall be provided
along Margarita Road and Solana Way.
· Heights of buildings located along Margarita Road and
Solana Way at the 35-foot setback line shall be limited to
50 feel The angle formed from Guidant's existing
easternmost property line along Margarita Road, and from
Guidant's existing southernmost property line along Solana
Way, to the 50-foot vertical building height at the setback
line shall form the angular plane that establishes maximum
building heights, not to exceed 80 feet (excluding
mechanical equipment and associated enclosures).
Setbacks on upper floors and building articulation to
reduce the bulk and mass of the buildings shall be
emphasized.
The visual mass of buildings along Margarita Road and Solana
Way shall be reduced through breaks in the structure, tree
plantings, articulation of the facade, and other architectural
devices.
Planning staff will verify compliance with the above mitigation
measures as part of the final Development Plan review process.
Prior to approval of the final Development Plan.
Community Development Department
Blolo Ical Resources
General Impact:
Mitigation Measures:
Have a substantial adverse effect, either directly or through'habitat
modifications, on any species identified as a candidate, sensitive,
-or special status species in local or regional plans, policies, or
regulations, or by the California Department of Fish and Game or
U.S. Fish and Wildlife Service; and
Interfere substantially with the movement of any native resident or
migratory fish or wildlife species or with established native
resident or migratory wildlife corridors, or impede the use of native
wildlife nursery sites. ·
(2). Prfor to development or ground disturbance, the impacts to
burrowing owls will be mitigated by a combination of pre-
construction surveying, passive owl relocation, and burrow
replacement. Two weeks before initiation of grading activities, a
qualified biologist must survey the entire project area for extant
burrowing owls. The biologist will look for burrowing owls while
walking 20-meter transects. Every potential suitable burrow will be
examined for burrowing owl sign (e.g. feathers, pellets,
whitewash, bones, insect exoskeletons). All burrows found to
house burrowing owls or sign will be flagged and mapped for
removal. When surveying for burrowing owls, it should be noted
that they frequently fly to alternative burrow(s) when disturbed. All
burrows found to be inhabited by burrowing owls will be fitted with
one-way doors for a period of three days. After the third day, the
one-way doors will be removed and the burrow network excavated
and closed so that re-occupation cannot occur. Before the one-
way doors are feted to the burrows, replacement burrows must be
installed il~ a combination of the channel easement onsite and
offsite location to be determined. The offsite location must be
considered suitable habitat and of sufficient size. Burrows will be
replaced at a ratio of 2:1 for each burrow found occupied by
burrowing owls. A minimum of slx burrows mUSt be installed.
Burrows should be installed so that entrances randomly face the
cardinal directions and that they are ~andomly distdbufed
throughout the open space area, however at least 20% should be
installed within the existing flood control channel. The design of
the artificial burrow should be consistent with the latest widely.
used design.
(3). General: In order to satisfy Federal Migratory Bird Treaty Act
requirements, vegetation removal should not occur between
March and AugusL ff vegetation removal must occur between
March and August, then a nesting bird survey must be conducted
by a qualified omithologisf. Trees and shrubs containing active
nests may not be removed unffi the nesters have finished.
Finishing is defined as having successfully raised a brood until
they leave the nest or nest abandonment. Renesting by birds
requires the process to begin again. Raptors may nest during
most any time of the yeer. Therefore, the bam o_wl neet and raptor
nest must be surveyed prior to removal regardless of time of year.
Removal of the tree may occur when it is determined that they are
finished nesting or are not nesting.
Specific process:
Mitigation Milestone:
Responsible Monitoring
Party:
(4). In the event federally endangered fairy shrimp are found off-
site adjacent to the project site, the Applicant shall consult with the
USFWS prior to issuance of grading permits or any actions
involving ground disturbing activities in the vicinity of the identified
off-site habitat area so that to the extent feasible, project
construction and/or operational activities will not have an adverse
effect on federally endangered fairy shrimp.
Planning staff will verify compliance with the above mitigation
measures as part of the grading plan check review process.
Prior to the issuance of a grading permit.
Planning Department
General Impact:
Mitigation Measures:
Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party:
Conflict with the provisions of an adopted habitat Conservation
Plan, Natural Community Conservation Plan, or other approved
local, regional, or state habitat conservation plan.
(5). Prior to issuance of grading permits the applicant shall comply
with the provisions of Chapter 8.24 of the Temecula Municipal
Code (Habitat Conserva~on) by paying the appropriate fee set
forth in ~hat ordinance or by providing documented evidence that
the fees have already been paid.
Planning Staff will verify compliance with the above mitigation
measure as part of.the grading plan check review process.
Prior to the issuance of a grading permit.
Planning Department
Cultural Resources
General Impact:
Mitigation I~leasures:
Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party
Cause a substantial adverse change in the significance of an
archaeological resource pursuant to Section 1506.5; and
Directly or indirectly destroy a unique paleotological resource or
site or unique geological feature.
(6). Pdor to the issuance of a grading permit, a qualified
paleontologist/archaeologist shaft be chosen by the developer for
consultation and comment on the proposed grading with respect
to potential paleontologicaYarchaeological impacts. A meeting
between the paleontologist/archaeologist, Community
Development Department- Planning Division staff, and grading
contractor prior to the commencement of grading operations and
the excavation shall be arranged. A qualified archaeologist and a
qualified paleontologist shall be present on-site dudng grading to
monitor the site for the presence of cultural or paleontological
resources. A qualified paleontologist/archaeologist or
representative shall have the authority to temporedly divert,
redirect or halt grading activity to allow recovery.of cultural
resources or fossils. The developer shall submit to Planning
Department staff a copy of a contract between the developer and
a qualified archeologist and a paleontologist for monitoring
services du#ng grading of the site.
Planning staff will verify compliance with the above .mitigation
measure as part of the grading plan check review process.
Prior to the issuance of a grading permit.
Public Works Department
General Impact:
Mitigation Measures:
Expose people or structures to potential substantial adverse
effects, including the risk of loss, injury, or death involving:
'· Seismic-related ground failure, Including liquefaction;
· Landslides; and/or
Be located on expansive soil, as defined in Table 1801-B of the
Uniform Building Code (1994), creating substantial risks to life or
property.
(7). P#or to the issuance of grading and building permits, the
recommendations contained in soils report(s) shall be
implemented.
4
Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party:
Planning staff will verify compliance With the above mitigation
measure as part of the grading and building plan check review
processes.
Prior to the issuance of grading and building permits.
Public Works Department
General Impact:
Mitigation Measures:
Specific Process:
Mitigation Milestone:
· Responsible Monitoring
Party:
Result in substantial soil erosion or the Foss of topsoil.
(8). P#or to the issuance of grading and building permits, the
Applicant shall submit to the Public Works Department an erosion
control plan prepared in accordance with City requirements.
Planning staff will verify compliance with the above mitigation
measures as part of the grading and building plan check review
processes.
Prior to the issuance of grading and building permits.
Public Works Department
General Impact:
Mitigation Measures:
Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party:
Result in substantial soil erosion or the loss of topsoil.
(9). P/for to the issuance of occupancy permits, landscape plans
shall be prepared for all slopes created by the grading and fill of
these sites consistent with ~$1ope Planting Guidelines" and the
Development Code, and shall provide erosion control on
undeveloped portions of the site.
Planning staff will verify compliance with the above mitigation
measures as part. of the certificate of occupancy review
processes.
Prior to the issuance of certificate of occupancy.
Public Works Department and Planning Department
Noise
General impact:
Mitigation Measures:
A substantial temporary or periodic increase in ambient noise
levels in the project vicinity above levels existing without the
project.
Ensure that the following measures are complied with during
construction:
(I0). Construction shall be restricted to the hours of 6:30 A.M. to
6:30 P.M. Monday through Fdday and 7:00 A.M. to 6:30 P.M.
Saturday.
(11). The project contractor Shall use construction equipment with
noise shielding and muffling devices.
(12). Construction activities shall be scheduled so as to .avoid
operating several pieces of equipment simultaneously, which
causes high noise levels.
Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party:
(13). The Applicant shall notify the communities in advance of
construction activib'es. The construction manager's (or
representative's) telephone number shall also be provided with
notification so that community concerns can be expressed and
addressed whenever feasible. Forms of notification shall include
one or more of the following: signs posted on the site and/or
distribution of leaflets to adjacent residents.
Building and Safety staff will Verify compliance with the above
mitigation measures as part of the grading and building plan check
review processes.
Prior to the issuance of grading and building permits, and dudng
grading and conslnJction.
Building and Safety Department
Trans ortetlon/Trafflc
General Impact:
Mitigation Measures:
Cause an increase in traffic which is substantial In relation to the~
existing traffic load and capacity of the street system (i.e., result in
a substantial increase in either the number of vehicle trips, the
volume to capacity ratio on roads, or congestion at intersections);
and
Exceed, either individually or cumulatively, a level of service
standard established by the county congestion management
agency for designated reads or highways.
(14). Margarita Way/Apartment Driveway: The proposed access
should be located directly across from the ex/sting Apartment
'Driveway and form the fourth leg of this intersection. A traffic
signal should be COnstructed with development to allow this
access point full access along Margarita Road' and additional
median roodifications and re-strfping will be accoropllshed to
maintain LOS D for existing plus project conditions.
(15). Project Driveway/Solana Way: This access point should be
restricted to #ght-in/dght-out only. A stop sign, stop bar, and stop
legend should be provided to control vehicles exiting the site.
Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party:.
Planning and public works staff will verify compliance with the
above mitigation measures as part of the certificate of occupancy
review process,
Prior to the issuance ora certificate of occupancy.
Public Works Department and Planning Department
Utilities and Services Systems
Generallmpact:
Mitigation Measures:
Require or result in the construction of new storm water drainage
facilities or expansion of existing facilities, the construction of
which could cause significant environmental effects.
(16). A Drainage Study shall be prepared by a registered Civil
Engineer and submitted to the Department of Public Works with
the initial grading plan check. The study shall Identify storm water
runoff quantities expected from the developroent of this site and
upstream of the site. It shall identify all existing or'proposed off-
site or on-site, public or p#vafa, drainage facilities intended to
discharge this runoff. Runoff shall be conveyed to an adequate
outfall capable of receiving the storm water runoff without damage
to public or pdvate property. The study shall include a capacity
· Specific Process:
Mitigation Milestone:
Responsible Monitoring
Party:
analysis verifying the adequacy of all facilities. Any upgrading or
upsizing of drainage facilities necessary to convey the storm water
runoff shall be provided as part of development of the project site.
The basis for analysis ands design shall be a storm with a
recurrence interval of one hundred years.
Public Works staff will vedfy compliance with the above mitigation
measures as part of the grading plan check review process.
Prior to the issuance of a grading permit.
Public Works Department
8
ATTACHMENT NO. 6
COMMENT LETTERS RECEIVED AND RESPONSES TO COMMENTS
R:~ A\Guldant DA~Staff Report CC.doc 17
Alii 4~ 2002
City of Te~a~u~a
Planning Depa~nenl
P.O, Box 9033
Te~ CA 92589-9O33
I~ c~ ~T4~120
Attention: DaMd Hogan
Re: Guldant Corpemllon, east Of MOtorcar Pkwy and Ynez Rd, noffhweaterly
of Margaita Road and Solana Way -City of Temeoula
Thank you for the opportunit~ te respond to tho above-refereneed proj.ecZ. ~lease note
that Southern C~l~omla Ga~ Cx~mpany has fa~llltlea In the area va~ere lhe abc~ve named
polk~es and extension rules on flle'wflh ~he California Public Ul~lltlee Comn'~eion at the
tin~ conlm~tUal a~mngement~ am made.
You shOUld be aware that. t~i$ lettat is net to be Intmpreta<i as a .cont~aetua
~3mmitment to serve lhe pmpo~ pm~/ect, but etdy a~ a~ Inf~l ~ The
(~Itl~na o~ ga~ aupply ,'nd ragutatory po~eles. As a pu~ utlll~ The Seuthem'
?ypioal demand uae loc . .
a. Residential (SY~'tem Ama AvemgeaJae Per Meter) Yearly
Single Family 7~9 themla/year dwellfng unit
Multi.Family.4 or lee8 un~ 482 therrns/year dwelling unit
Multi-Family $ or more units 483 therma/year dwe~lng unit
These everagea are ~ on b,,~i gaa ~nsump~n In resMentMj u.~ oaTved by
Southern Celifomla Ga~ Company, and I~ ett0u/cl not be Implied Ihat ,,,ny partJculm'
GC-1
GC-2
b. Commerolal
.Due to the fa~ th?t 0onatructlon varies so widely (a gia~ building va. e heavily
~a,ul .a~.bu!ldlng) .a~_d them.la auc=h a wide Yadal~on In types of materbds and , GC-2 (cont.)
__..WP~..f aema~ agure le not available for ~ type of'
~m~ulauone woum need to be made alter em buffdlng hm been clealgnad.
We have Demand ~de Management programs available to comrnerelal/induetrfal I
c~t~mel~ to provide l]~datetl0a ~ ~elec3ffng the.moat effea~l~ epplioationm Of ette~gy GC.3
of our enmg¥ cx~qservatkm programs, please centaet our CommerefaVfndustHal Support
Cerlter at 'I.~O0-GAS-20~. '
- Te~.lcal Supervet
The Gas Company (GC)
Response to GC Comment No. 1
This comment is noted for the record and will be forwarded to the decision-makers for
review and consideration. The concems expressed in this letter are addressed individually
below.
Response to GC Comment No. 2
The comment is noted. The project site is located in an urbanized area in which natural
gas infrastructure is currently in place. No significant impact would occur related to natural gas
capacily or service capability. The applicant will coordinate with The Gas Company to ensure
that the most appropriate and effective applications of energy conservation programs are
implemented.
Response to GC Comment No. 3
This comment is noted for the record and will be forwarded to the decision-makers for
review and consideration.
R:~ A~Guldant DA~Staff Report CC.doc t8
Department of Toxic Substances ContrOl'
!Edwin F. Lowry, Dlmotor
5700 Oorpomts Avonue
April lg, 2OO2
Gray Davis
Mr. David Hogan
Senior Planner
City of Temecula Planning Depmtment
P.O. Box g033
Temecu!a, California 926~9-90'a3
NEGATIVE DECLARATION FOR THE.DEVELOPMENT AGRE~'BETWEEN
CITY OF TEMECULA AND THE-GUIDANT COI~' PROJE'GT (-SCH #2002041~10)
Dear Mr. Hogan:
The Department of Toxic Substances Control (DT$C) has mceNed your Negative
Declara~3n (ND)for the above-mentioned Pmje~.
Based on Ihe review of the dooument, DTaC's eommenta amea follows:
l)
2)
3)
DT$C-~
The ND neede to identify and detetmlne.wheemr currant or historic uses at the 1
~Je~ .a~,hav. resulted, any mleaee of tur~e~leu, waetee/m~bataneas at the DT$C-2
Far ~1 tde~,urmcl ~ the ND nee~a to evaluate w~at~er DT$C-3
eonamans at me ate pose a throat te human health er the environment. ·
The diai'i ND ~llould identi6/Ifle meahanism to '
and/or remedlatlon for an site that . Initiate any required investigation
y may requa-e mrm~llallml, and the
govemment egenoy to ~ apl~opita~ re~Jlato~ ovemighL
DT$C~
4) If_ _tt~., ,.p?pert~.. had v__eget~., on or agUcultural use, ~aae a°ile ~x~ul~l eantaln I
~pe~_~_r~_~u~._,_ ~T~...?.l~e .may.?ave c~ ..l~ed'to soil, .and orot~dwat~r
.ra~ pr~3'~o m~ new development.
G) I~ any of the adJaoeat properties are comamlnated with hazaraoue ahemlcals'
and if the Proposed pm~ed la within 2,000 ;ee~ from a eontandnaled site, then
proposed devek)pment may fall under tile 'Border Zone of a 'Contaminated
DTSC~
DT$C~
Mr. David Hogan
Page 2
e)
f DT$C-6
Properly." Appropriate pmeautfons should be taken pdor to construcllon If the / (cont.)
proposed project Is on a 'Bon:ler Zone Pix:koegy.-
The project constmctl0n may require )11 exeavatien and sos filling in certain
areas. Appropriate sampling Is required prier to disposal oft~e excavated sbil. If
the soil IS centamlnated, propedy dispose of It rather than placing It in another
location. Land Disposal Restrictions (LDR$) may be applicable to these soils.
Also, If the proJeot Is planning to Import sol] to backfill the areas excavated,
proper sampll~!g should be conducted to make sure that the imported soil is free
of corl~arrdnatlon.
7)
yes. em me presence oT'leaa paints and aabeek~ containing materials
(ACMe) in Ihs current/yexlstlng bulldlrtga at the site. If the presence of lead or
ACMe are suspected, proper precautions should be taken during demolition
act~vrdes. Add~onatly, the contaminants should be remediated In compliance
with the Ca/ifomla environmental regu[atlofls.
If durin[~ °Onstmc, flon the project, soil and/or groundwater eoMamination are
suspected, constm~on In the area should cease and appropriate Health aaa
Safely prooedurea..~x~l be Imple/nsnted. If It IS detemllrled b~at contamJrmted
?il and/or groundwater exist, the ND should identffy how any required
investigation and/or remediatlon will be conducted, and the government agency
to provide appmpriato regulatory oversight.
DTSC provides guidance for the.Preliminary Endangerment Aaseaamem (PEA)
Preparation and eleanup overnight through the Voluntary Cleanup Program ~CP).
For addJlional infommflon on Ihe VCP, please visit DTaC'e web site at.
Ify°u have any questions regarding this letter, please contact Mr, Johnson P. Abraham,
Project Manager at ~14) 484-5476,
Haissam Y'. Salloum, P,E.
Unit Chief
8oulhem California Cleanup Opemt~fle Branch
Cypre~ Office
DTSC-7
DTSC-.8
DT$C-9
DTSC-10
Mr. David Hogan
April 19, 2002
Page 3
Governor's Office of Planning and Reseamh
State Clearinghouse
P.O. Box 3044
Sacramento, California 95812-3044
Mr, (;luenther W, Moskat, Chief
.Planning and Environmental Analysis Sec~on
CEQA Traddng Center
Department of To)dc Substances Conflol
P,O. Box 806
Sacramento, California 95812-0806
Department of Toxic Substances Control (DTSC)
Response to DTSC Comment No. 1
This comment is noted for the record and will be forwarded to the decision-makers for
review and consideration. The concerns expressed in this letter are addressed individually
below.
Response to DTSC Comment No. 2
Historic uses at the project site may have resulted in pdor release of hazardous
wastes/substances in the project area; however, appropriate remedial activities have been
accomplished. Two daides, consisting of four residential houses and two milking barns, were
formerly located on an overall 41.6-acre site located at the northwestern comer of Solana Way
and Margarita Road, of which the project site is a part. An Environmental Site Assessment was
performed in Apdl and May 1990 in order to evaluate the presence of environmental
contamination on the 41.6-acre site. The site reconnaissance identified nine possible sources
of environmental concern including the following: 1) manure; 2) wastewater collected in the
ponds; 3) six aboveground gasoline and diesel storage tanks; 4) miscellaneous empty and
partially filled containers of hydraulic oil, herbicide, motor oil, mudatic acid, detergent, and
unlabeled or unidentified containers; 5) one diesel underground storage tank (UST); 6) one
gasoline UST; 7) one hydraulic oil blow-down tank (muffler) for an air compressor formerly
located in the northern milking barn; 8) a concrete-lined, subgrade, mechanic's pit in an
equipment maintenance bay; and 9) apparent patches of oil-stained soil. Dudng further
investigation of the site, an additional compressor blow-down tank was discovered.
In order to appropriately remediate the 41.6-acre site for eventual mass grading and
future redevelopment, the following was accomplished in 1991: 1) disposal of manure; 2)
removal of water accumulated in holding ponds; 3) inspection and remediation of residences
and milking barns for asbestos; 4) packing and disposal of household hazardous materials; 5)
demolition and disposal of all structures and site improvements; 6) removal of USTs; 7) removal
of a mechanic's service pit; 8) abandonment of groundwater monitoring wells; 9) removal of
septic tanks; and 10) disposal of hydrocarbon-affected soil.
In January 1992, a Closure Report was prepared by Woodward Clyde and submitted to
the County of Riverside Department of Health Services, Environmental Health Division (DHS) in
order to satisfy Riverside County requirements to document removal of the tanks and
acknowledge that remedial activities were complete. In addition, according to the Closure
Report, during Apdl 1990, three groundwater monitoring wells were installed within the 41.6-
acre property (which includes the project site) to assess possible impact to groundwater.
Contaminants were not detected in water samples collected from the three wells, and upon
approval from County DHS, the monitoring wells were appropriately abandoned.
In February 1992, the County of Riverside DHS issued a letter to the applicant indicating
that with the provision that the information contained in the Closure Report was accurate, no
further.remediafion action was required. Based on this informaUon, it is assumed that historic
uses of the site no longer pose a hazard, as the site has been appropriately and effectively
remediated. No mitigation would be necessary.
R:~D A~Guldant DA~Stalf Repot CC.doc 19
Response to DTSC Comment No. 3
No known or potentially contaminated site exists within the project site. Refer to
Response to DTSC Comment No. 2. In addition, as part of the Environmental Site Assessment
that was performed in April and May 1990, a database seamh for hazardous materials sites
compiled pursuant to Government Code Section 65962.5 was performed on the 41.6-acre site,
which includes the project site. According to the records review, there are no recorded State
Superfund, National Priority List (NPL) sites, or landfills (active or inactive) within one-quarter
mile of the 41.6-acre site, including the project site. In addition, there are no Comprehensive
Environmental Response, Compensation and Liability Information System, Resource
Conservation and Recovery Act-permitted facilities, Cortese-listed sites or unauthorized tank
release cases within the site vicinity. The Riverside County Agricultural Commissioners Office
had no records of permits for restricted material use at the project site, and the Eastern
Municipal Water District had no record of permits that would allow the site to discharge to the
sewer system,
Response to DTSC Comment No. 4
The comment is noted. As described in detail under Response to DTSC Comment No. 2,
remedial actions took place on the project site in 1991. In February 1992, the County of
Riverside Department of Health issued a letter indicating that no further remedial action was
required.
Response to DTSC Comment No. 5
As indicated previously under Response to DTSC Comment No. 3, the Riverside County
Agricultural Commissioners Office had no records of permits for restricted material use at 41.6-
acre subject site, which includes the project site. For the time period that their records have
been maintained, the site has not been involved in agricultural production. In addition, the
project site has been investigated for potential soil and groundwater contamination, and
appropriate remedial activities have occurred. Refer to Response to DTSC Comment No. 2 for
a detailed discussion of potential soil and groundwater contamination.
Response to DTSC Comment No. 6
The project site is not located on a "Border Zone Property," as it does not fall within
2,000 feet from a contaminated site. Refer to Response to DTSC Comment No. 3. No impacts
are anticipated.
Response to DTSC Comment No. 7
As described previously under Response to DTSC Comment No. 2, prior remedial
activities have ensured that the soil currently on the site is free of contamination. The applicant
proposes to balance soils onsite in order to prepare for construction; therefore, soils will neither
be imported onto the site nor will soils on the site be exported. No impacts are anticipated.
R:~D A/C-uldant DA~Staff Report cc.doc 20
Response to DTSC Comment No. 8
The project will not require demolition or renovation of building structures, as the site is
currently vacant. While structures historically were located onsite, these structures have since
been removed. Proper precautions were taken during demolition activities and the
contaminants were remediated prior to their removal in accordance with California
environmental regulations.
Response to DTSC Comment No. 9
As indicated previously, the project site has been investigated for potential soil and
groundwater contamination, and appropriate remedial activities took place in 1991 to prepare
the project site for eventual mass grading and future redevelopment. Refer to Response to
DTSC Comment No. 2 for a detailed discussion of potential soil and groundwater contamination.
Response to DTSC Comment No. 10
The comment is acknowledged and will be forwarded to the appropriate decision-makers.
R:~D A\Guldant DA',~taff Report CC.doc 21
April 4, 2002
Mr. David Hogen
Senior Planner
City of Temecula
P.O. Box 9033
Terneoula, (~A 9268,9-9033
SubJec~
Notice of Proposed Negative Declaration for the Expansign of the Guldant
Corp~ai~on.Campus
Dear IVlr. Hogan:
We received a ~opy of the Notice of Proposed Negative Declaration on April. 1~ 2002 for
the Expansion of the Guidant Corporate1 .Campus Project tn ~o City of Temecula and
are providing you with the following ~mmente:
'1) . RCTC Is pe~Ipattng in the development of I~e Rivemlde County Integrated
prOject (RClP) and the Community. Environmental Acceptability Pro,ess
(CETAP)~ As part of the RClP end CETAP, RCTC requests that 'the Expen~n
of the Guldant ~ Campus Project' not only be condlltoned to study and
mitigate for Io~al Impacts. bul also regional impale to the transpoilalion system.
Alternatives proposal in the Wi~eme~ula Cof~or RClP/CETAP study
Indicate a major intemhange at the [nte~iaie t5 ~1-t5) and State Route 79
(Wlm3hest~ Road) fo~atbn, Yo~Jr ~f=~e Information provtde~ no indl~i~ what
Impact ,~3ur.~5,089 ~ per day ,~!11 :ha~ ~n netther Ifm,$R~79 lr~hange
Immediately north, of the project .nor the Rancho California Read ~e to
the south. "
J.RCTC-I
RCTC,.2
z)
3)
It Is ~e~lsd In your Nolfoe Sedfon 15 that all ~ ~= im~ a~. [
~~n.e~n~'(~l ~ 8~ D). R~C b ~"1 .n~m~ ~
~ L~, ~ ~ ~%a ~ ~ ~) ~l ~ ~ ~ RCT~3
Please enaure that you are eoordlnating dlrecll¥ ~ Caltmns concemlng I-t6 for I RCTC-4.
this pmJe,~.
April 4,2002
Page -2-
4) RCTC wOuld like to maintain a coordinated effort for all projects that affeot
transportation in western Riverside County. Please =ontael RCTC If you haveI RCTC-5
any queslions concerning thl~ prooees,
Should you-have additional informallon, please oorda~ 8eoh~l Measure "A' Project
Coordinator, Gustavo Qulntem, at (909)787.7935. Thank you for giving RCTC the RCTC-6
I
Sincerely,
· . Deputy Executive Director RCTC
Riverside County Transportation Commission
Cc: Linda Grimes, Caltmns 08
Bill Hughes, Mike Davis, Gustavo Qulntero- Bechtel
Riverside County Transportation Commission (RCTC)
Response to RCTC Comment No. 1
This comment is noted for the record and will be forwarded to the decision-makers for
review and consideration. The concerns expressed in this letter are addressed individually
below.
Response to RCTC Comment No.2
The project site is being developed in conformance with the City of Temecula's General
Plan and Development Code. In accordance with CEQA Guidelines Section 15063(c)(3)(D), the
Guidant Corporation Campus Expansion Initial Study has referenced and incorporated
information from the General Plan EIR in analyzing the project's potential significant
environmental effects.
According to Section 21083.3(b) of the Public Resources Code, "If a development
project is consistent with the general plan of a local agency and an environmental impact report
was certified with respect to that general plan, the application of this division to the approval of
that development project shall be limited to effects on the environment which ara peculiar to the
parcel or to the project and which were not addressed as significant effects in the prior
environmental impact report, or which substantial new information shows will be more significant
than described in the prior environmental impact rapert." Furthermore, as described in CEQA
Guidelines Section 15183, CEQA mandates that projects which are consistent with the
development density established by existing zoning, community plan, or general plan policies
for which an EIR was certified shall not require additional environmental review, except as might
be necessary to examine whether there are project-specific significant effects which are peculiar
to the project or its site. Ultimate development of the project site has been addressed under the
City of Temecula General Plan, adopted in 1993, and analyzed within the 1993 certified General
Plan EIR (copies of these documents are available for review at the City of Temecula
Community Development Department). The proposed project's maximum potential buildout
falls within the target FAR (0.40) for the site as identified within the City's General Plan and
analyzed within the General Plan EIR. Additionally, there is no substantial new information that
would indicate that impacts would be more significant than previously described in the General
Plan EIR. Therefore, with the exception of potentially significant impacts "peculiar to the project"
which are identified in the Initial Study and mitigation measures provided to reduce these
potential impacts to a less than significant level, the Initial Study incorporates the General Plan
EIR document by referanca and does not re-address the impact that the proposed project, or
the proposed project plus related projects, would have on the SR-79 interchange immediately
north of the project site or the Rancho California Road intemhange to the south, as potential
impact to these intersections was previously analyzed in the General Plan EIR.
Response to RCTC Comment No. 3
The Guidant Corporation Campus Expansion Initial Study identifies significant
environmental effects related to traffic/circulation that cannot be avoided or substantially
lessened despite the project's incorporation of all feasible mitigation measures. These impacts
associated with cumulative traffic, including impacts to freeway interchanges, ara fully
addressed in the City's General Plan EIR, and are not peculiar to the project or its site.
Furthermore, the project has provided mitigation measures that are feasible at the project-level
and has also incorporated design features that contribute to implementation of the program-
R:~D A~Guldant DA~Staff Report CC.doc 22
level mitigation measures set forth in the City Generel Plan EIR. In accordance with Section
15152(f)(3)(C) of the CEQA Guidelines, the only purpose of including analysis of such effects in
another environmental impact report would be to put the agency in a position to adopt a
Statement of Overriding Considerations with respect to the effects. The City previously adopted
a Statement of Overriding Considerations, acknowledging significant unavoidable impacts
related to traffic, and maximum buildout potential of the project site was addressed in the
General Plan EIR; therefore, significant environmental effects related to traffic/circulation have
been adequately addressed.
All cumulative effects for the vadous land uses of the project site as well as the
surrounding developments were analyzed in the General Plan Environmental Impact Report.
With cumulative traffic (estimated proposed project traffic plus traffic from future adjacent
development), all study area intersections are expected to operate at acceptable levels at peak
hours with the exception of Margarita Road at Apartment Driveway and Motor Car Parkway at
Solana Way. Incorporation of mitigation would reduce these potentially significant impacts to a
less than significant level.
Response to RCTC Comment No. 4
As indicated previously under Response to RCTC Comment Nos. 2 and 3, impacts
associated with cumulative traffic including impacts to 1-15, are fully addressed in the City's
General Plan EIR, and are not peculiar to the preject or its site. Ultimate development of the
project site has been addressed under the City of Temecula General Plan, adopted in 1993, and
analyzed within the 1993 certified General Plan EIR (copies of these documents are available
for review at the City of Temecula Community Development Department). The proposed
project's maximum potential buildout falls within the target FAR (0.40) for the site as identified
within the City's General Plan and analyzed within the General Plan EIR. Additionally, there is
no substantial new information that would indicate that impacts to 1-15 would be more significant
than previously described in the General Plan EIR. Therefore, with the exception of potentially
significant impacts "peculiar to the project' which are identified in the Initial Study and mitigation
measures provided to reduce these potential impacts to a less than significant level, the Initial
Study incorporates the General Plan EIR document by reference and does not re-address the
impact that the proposed project, or the proposed project plus related projects, would have on 1-
15.
For that reason, direct coordination with Caltrans concerning 1-15 was not undertaken. It should
be noted, however, that a copy of the Draft Initial Study was distributed to Caltrans, Distdct 8 by
the State Clearinghouse.. Caltrans did not submit any comments.
Response to RCTC Comment No. 5
The comment is acknowledged and will be forwarded to the appropriate decision-
makers.
Response to RCTC Comment No. 6
The comment is acknowledged and will be forwarded to the appropriate derision-makers.
R:~D A~Guldant DA~Staff Repmt CC.doc 23
AI'I'ACHMENT NO. 7
COLOR AND MATERIAL PALETTE
(SEE SEPARATE HANDOUT)
R:~D A\Guldant DA~Staff Report CC.doc 24