HomeMy WebLinkAbout99-27 CC OrdinanceORDINANCE NO. 99 -27
' AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TEMECULA, CALIFORNIA APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY COUNCIL OF THE CITY
OF TEMECULA AND ELI LILLY AND COMPANY FOR
PROPERTY GENERALLY LOCATED EAST OF YNEZ ROAD,
WEST OF MARGARITA ROAD AND SOUTH OF OVERLAND
DRIVE (PLANNING APPLICATION NO. PA99 -0274)
WHEREAS, Section 65864 -et 5Q9. 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, to resolve potential litigation resulting from the City's acquisition of property
through eminent domain, the City of Temecula and the property owner, Eli Lilly and Company
have agreed to enter into a development agreement; 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 Eli
Lilly and Company; and,
WHEREAS, notice of the City's intention to consider adoption of this Agreement with Eli
Lilly and Company 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
September 29, 1999 (Planning Commission), and October 19, 1999 (City Council) at which time
it heard and considered all evidence relevant and material to said subject.
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN AS FOLLOWS:
Section 1. FINDINGS. The City Council hereby finds and determines, with respect
to this Agreement by and between the City of Temecula and Eli Lilly and Company, that it:
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,
R:Ords 99 -27
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,
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 the mutually agreeable resolution of
eminent domain issues that could have otherwise resulted in litigation.
' Section 2. APPROVAL. The Development Agreement, attached hereto and
incorporated herein by this reference as Exhibit "A" 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. NOTICE OF ADOPTION. The City Clerk shall certify to the adoption of
this Ordinance and shall cause the same to be published as required by law.
Section 4. PASSED, APPROVED AND ADOPT day of November, 1999.
VC ven J. Ford, Mayor
ATTEST:
u
Susan Jones, CMC /AAE
' City erk
[SEAL]
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STATE OF CALIFORNIA )
' COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Susan W. Jones, CMC /AAE, City Clerk of the City of Temecula, California, do hereby
certify that the foregoing Ordinance No. 99 -27 was duly introduced and placed upon its first
reading at a regular meeting of the City Council on the 19th day of October, 1999, and that
thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City
Council of the City of Temecula on the 9th day of November, 1999 by the following roll call vote:
AYES: 5 COUNCILMEMBERS: Comerchero, Ford, Lindemans, Roberts, Stone
NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
R:Ords 99 -27
(9�� Susa W. Jone , CMC /AAE
City Clerk
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement ") is entered into
as of the_ day of , 199_ ( "Agreement Date "), by and between ELI LILLY
AND CO., (hereinafter "OWNER "), and the CITY OF TEMECULA, a municipal
corporation, organized and existing under the laws of the State of California (hereinafter
"CITY "), pursuant to the authority of Sections 65864 through 65869.5 of the California
Government Code (the "Development Agreement Legislation ") and Article XI. Section 2
of the California Constitution.
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 thereof 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 in order to, among other matters: ensure
high quality development in accordance with comprehensive plans; provide certainty in
the approval of development projects so as to avoid the waste of resources and the
escalation in the cost of housing and other development to the consumer; provide
assurance to the applicants for development projects that they may proceed with their
projects in accordance with existing policies, rules and regulations and subject to
conditions of approval, in order to strengthen the public planning process and encourage
private participation in comprehensive planning and reduce the private and public
economic costs of development; and provide for economic assistance to OWNER for the
entitlements authorizing development related improvements.
C. OWNER is the owner of certain real property within the County of
Riverside, State of California (the 'Property "), as more particularly described in Exhibit
"A" attached hereto and made a part hereof. OWNER desires to develop the Property in
accordance with the provisions of this Agreement, the applicable regulations of the City
of Temecula and those regulations of other agencies exercising jurisdiction upon the
project. The Scope of Development of the Property as contemplated by this Agreement is
described in the Agreement in Section 1.15.
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' D. OWNER has applied for, and CITY has granted this Agreement in order to
create a beneficial project and a physical environment that will conform to and
complement the goals of CITY, create a development project sensitive to human needs
and values, facilitate efficient traffic circulation, and develop the Property. As part of the
process of granting this entitlement, the City Council of CITY (hereinafter the "City
Council ") has required the preparation of an environmental review and has issued a
Negative Declaration as regards any significant effects arising from the Project and has
otherwise carried out all requirements of the California Environmental Quality Act
( "CEQA") of 1970, as amended.
E. The following actions were taken with respect to this Agreement and the
Project:
I . On , following a duly noticed and conducted
public hearing, the City Planning Commission recommended that the City Council
approve this Agreement;
?. On , after a duly noticed public hearing and
pursuant to CEQA, the City Council adopted the Negative Declaration for this Agreement
' and the Project;
3. On after a duly noticed public hearing, the City
Council determined that the provisions of this Agreement are consistent with the General
Plan of the CITY;
4. On , after a duly noticed public hearing, the City
Council introduced Ordinance No. - approving and authorizing the execution of
this Agreement and on the City Council adoptcd the Ordinarcc, a copy
of which is on file in the Development Services Department at the CITY, and adopted the
findings and conditions pertaining thereto, including those relating to the environmental
documentation for the Project.
F. 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 Project is in the best interests of the
City.
G. In consideration of the substantial public improvements and benefits to be
provided by OWNER and the Project, and in order to strengthen the public financing and
planning process and reduce the economic costs of development, by this Agreement,
CITY intends to give OWNER assurance that OWNER can proceed with the
development of the Project for the Term of this Agreement pursuant to the terms and
bTEMECULA\ELILILLY\DEVAGR 3/9/99
' conditions of this Agreement and in accordance with CITY's General Plan ordinances,
policies, rules and regulations existing as of the Effective Date. In reliance on CITY's
covenants in this Agreement concerning the Development of the Property. OWNER has
and will in the future incur substantial costs in site preparation and the construction and
installation of major infrastructure and facilities in order to make the Project feasible.
H. Pursuant to Section 65867.5 of the Development Agreement Legislation,
the City Council has found and determined that: (i) this Agreement and the Existing
Project Approvals implement the goals and policies of CITY's General Plan, provide
balanced and diversified land uses and impose appropriate standards and requirements
with respect to land development and usage in order to maintain the overall quality of life
and the environment within 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 the 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.
I. CITY and OWNER agree that it may be beneficial to enter into additional
agreements or to modify this Agreement with respect to the implementation of the
separate components of the Project when more information concerning the details of each
component is available, and that this Agreement should expressly allow for such
contemplated additional agreements or modifications to this Agreement.
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, all of which are expressly incorporated into this Agreement, 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.
I.I. Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance
No. approving this Agreement.
1.2. CITY. The "CITY" means the City of Temecula. California a municipal
corporation, duly organized and existing under its charter and the Constitution and laws
of the State of California, and all of its officials, employees, agencies and departments.
L\TEMECULA \ELILILLV\DEVAGR 3/9/99 1
1.3. City Council. "City Council" means the duly elected and constituted city
council of the CITY.
1.4. Development. "Development" means the improvement of the Property
for purposes consistent with the Project's land use authorization, including, without
limitation: grading, the construction of infrastructure and public facilities related to the
Off -site Improvements and On -Site Improvements , the construction of structures and
buildings and the installation of landscaping.
1.5. Development Agreement Legislation. The 'Development Agreement
Legislation" means Sections 65864 through 65869.5 of the California Government Code
as it exists on the Effective Date.
1.6. Development Fees, 'Development Fees" means development impact and
processing fees imposed on the Development as conditions of development and limited as
more particularly set forth in Section 4.3.
1.7. Development Plan. The "Development Plan" consists of this Agreement,
the Existing Regulations, and those Future Development Approvals, if any, contemplated,
necessary, and requested by OWNER to implement the land uses authorized by the
Project.
1.8. Effective Date. "Effective Date" means the date the Authorizing
Ordinance becomes effective.
1.9. _Existing Regulations. "Existing Regulations' means those ordinances,
rules, regulations, policies, requirements, guidelines, constraints or other actions of the
CITY, other than site -spcci c Project Approvals, which purport to affect, govem or apply
to the Property or the implementation of the Development Plans in effect on the Effective
Date. Existing Regulations shall also include the text of the zoning district designations
of any combination of Community Commercial, Service Commercial, Office Professional
or High Density Residential for the site of the Project.
1.10. Euture Development Approvals. "Future Development Approvals'
means those entitlements and approvals contemplated, necessary, and requested by CITY
or OWNER to develop the Property subsequent to completion of the Project and
approved by the City currently upon or after the Effective Date. The parties hereto
expressly anticipate Owner will institute mixed uses on the property that may include
some combination of Business Park -Light Industrial, Office Professional, Residential and
Commercial uses. The CITY shall cooperate with OWNER, pursuant to Section 3.1.3., if
OWNER undertakes to implement a Planned Development Overlay zoning district for the
purposes of authorizing the intermixing of these uses.
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1.11. Off -site Improvements. "Off -site Improvements" means physical
infrastructure improvements or Facilities which are not and will not be located on the
Property.
1.12. On -site Improvements. "On -site Improvements" means physical
infrastructure improvements or facilities that are or will be located on the Property.
1.13. O"E$. "OWNER" is initially ELI LILLY AND COMPANY., an
Indiana corporation.
1.14. Planning Commission. "Planning Commission" means the duly
appointed and constituted planning commission of CITY.
1.15. Project. "Project" means changes in General Plan Land Use and City
Zoning Map designations, as well as any associated specific plan amendments and
environmental review for the approximately 37.4 acres located generally north of Solana
Way, west of Margarita Road, south of Overland Drive, and east of Ynez Road as
depicted on Exhibit `B ", that are necessary to allow some combination of Business Park,
Light Industrial, Office Professional, High Density Residential, and/or Commercial uses
thereon. This Agreement envisions that the following changes will be made so as to
' encourage a high quality development that enhances the City's economic base.
complements other developments in the vicinity, responds to market demands as seen by
OWNER, and that is compatible with the surrounding area. These changes could include
the following:
I . That the southerly +/ -20.7 acres may be redesignated to primarily
High Density Residential.
2. That the western half of the northerly + -16.7 acres may be
redesignated to either Service or Community Commercial.
3. That the eastern half of the northerly + -16.7 acres may be
redesignated to either Community Commercial or High Density Residential.
1.6 Project Approval. "Project Approval" means the accomplishment of the
legislative land use amendments as described in Section 1.15.
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2. General Provisions.
2.1. Binding Covenants. The provisions of this Agreement to the extent
permitted by law shall constitute covenants which 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 all successors in interest to the parties hereto.
2.2. Interest of OWNER. OWNER represents that OWNER has a legal
interest in the Property.
2.3. Term. The term (hereinafter called "Term ") of this Agreement shall
commence on the Effective Date and shall extend for a period of twenty (20) years
thereafter terminating at the end of the day preceding the twentieth (20th) anniversary of
the Effective Date, subject to specific extensions, revisions and termination provisions of
this Agreement.
2.4. Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
2.4. 1. If termination occurs pursuant to any specific provision of this
Agreement;
2.4.2. Completion of the total build -out of the Development pursuant to
the terms of this Agreement and the CITY's issuance of all required occupancy permits
and acceptance of all dedications and improvements required to complete Development;
or
2.4.3. 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 lawsuit filed against the
CITY to set aside, withdraw, or abrogate the approval of the City Council of this
Agreement for any part of the Project.
The termination of this Agreement shall not affect any right or duty arising
independently from entitlements issued by CITY or other land use approvals approved
prior to, concurrently or subsequent to the approval of this Agreement.
2.5. Transfers and Assignments.
2.5.1. Right to Assign. OWNER shall have the right from time to time
and on such number of occasions as it chooses to sell, assign or otherwise transfer all or
any portion of its interests in the Property together with all its right, title and interest in
' this Agreement, or the portion thereof which is subject to transfer (the "Transferred
L \TFMECUI.A \ELII.ILI.Y\DF.VAGR 3/9/99
Property ") to any person or entity at any time during the Term of this Agreement;
provided, however, that any such transfer or assignment must be pursuant to a sale,
assignment or other transfer of the interest of OWNER in the Property, or a portion
thereof. In the event of any such sale, assignment, or other transfer, (i) OWNER shall
notify CITY within twenty (20) days of such event of the name of the transferee, together
with the corresponding entitlements being transferred to such transferee and (ii) the
agreement between OWNER and such transferee pertaining to such transfer shall provide
that either OWNER or the transferee shall be liable for the performance of those
obligations of OWNER under this Agreement which relate to the Transferred Property, if
any. Each transferee and OWNER shall notify CITY in writing which entity shall be
liable for the performance of each respective obligations.
2.5.2. Rights of Successors and Assigns. Any and all successors and
assigns of OWNER shall have all of the same rights, benefits and obligations of OWNER
under this Agreement.
2.6.1. Initiation of Amendmen r. Either party may propose an
amendment to this Agreement and both parties agree that it may be beneficial to enter
' into additional agreements or modifications of this Agreement in connection with the
implementation of the separate components of the Project.
2.6.2. Procedure. Except as set forth in Section 2.6.4 below, the
procedure for proposing and adopting an amendment to this Agreement shall be the same
as the procedure required for entering into this Agreement in the first instance.
2.u.3. Cutisti, . Excepi a, expressly provided in this Agreement, any
amendment to this Agreement shall require the written consent of both parties. No
amendment to all or any provision of this Agreement shall be effective unless set forth in
writing and signed by duly authorized representatives of each of the parties.
2.6.4. Operating Memoranda. The parties acknowledge that
refinements and further development of the Project may demonstrate that changes are
appropriate with respect to the details and performance of the parties under this
Agreement. The parties desire to retain a certain degree of flexibility with respect to the
details of the Development and with respect to those items covered in general terms under
this Agreement. If and when the parties mutually find that changes, adjustments, or
clarifications are appropriate to further the intended purposes of this Agreement, they
may, unless otherwise required by law, effectuate such changes. adjustments, or
clarifications without amendment to this Agreement through operating memoranda
mutually approved by the parties, which, after execution, shall be attached hereto as
L\TEMECULA \ELILILLY\DEVAGR 3/9/99 1
addenda and become a part hereof and may be further changed and amended from time to
time as necessary, with further approval by City Manager, on behalf of the CITY and by
any corporate officer or other person designated for such purpose in a writing signed by a
corporate officer on behalf of OWNER. Unless otherwise required by law or by the
Project Approvals, no such changes, adjustments, or clarifications shall require prior
notice or hearing.
3.1.1. Project. While this Agreement is in effect, OWNER shall have
the vested right to implement the Development authorized by the Project pursuant to this
Agreement and the Project Approvals and CITY shall have the right to control the
Development in accordance with the terms and conditions of this Agreement. Except as
otherwise specified in this Agreement, the Existing Regulations shall control the design
and Development , Future Development Approvals and all On -Site Improvements and
Off -Site Improvements and appurtenances in connection therewith.
3.1.2. Timing of Development. Regardless of any future enactment, by
' initiative, or otherwise, OWNER shall have the discretion to develop the Future
Development in one phase or in multiple phases at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Specifically, CITY
agrees that OWNER shall be entitled to apply for and receive permits, maps, occupancy
certificates and other entitlements to develop and use the Property at any time, provided
that such application is made in accordance with this Agreement and the Existing
Regulations.
The parties hereto expressly reject the holding of Pardee Construction
Comply v. City of Camarillo, 37 Cal. 3d 465 (1984) as regards any authority regulating
the phasing of the Development.
3.1.3. Entitlements. Permits and Approvals - Cooperation. CITY
shall accept and timely process, in the normal and legal manner for processing such
matters, all applications for Future Development Approvals anticipated under this
Agreement. CITY shall not withhold any building permit, final inspection or certificate
of occupancy from OWNER if OWNER has satisfied all conditions and requirements of
this Agreement and the Future Development Approval. In regards to the Project
Approvals, CITY shall have the sole responsibility to apply for, if necessary, a revision to
the City of Temecula General Plan, a change of zone from Business Park to any .
combination of Community Commercial, Service Commercial, Office- Professional or
High Density Residential to facilitate the Project and necessary specific plan revisions.
L \TEMECDLA\ELILILLrDEVAGR 3/9/99 R
CITY shall commit an amount, not to exceed Fourteen Thousand Dollars ($14.000.00), to
pay its own processing and application fees needed to accomplish these revisions.
OWNER shall bear no cost for any such application but shall have the right to participate
in all stages of the consideration of such revisions. All other entitlements, permits, or
approvals shall be obtained by OWNER at its own sole cost and expense.
3.1.3.1. Further Mitigation. In connection with the
completion of the Project, CITY shall be responsible for the satisfaction of any mitigation
measures that do not depend on, act upon, or relate to Future Development Approvals. In
connection with the issuance of any Future Development Approvals which are subject to
review under CEQA, unless required under CEQA, the CITY shall not impose any
environmental land use alternatives or mitigation measures in addition to those referenced
in the Project Approvals or deemed reasonably necessary in light of the development
activity proposal.
3.1.3.2. Other Permits. CITY also agrees to assist and
cooperate with OWNER in securing any County, State and Federal permits or
authorizations which may be required in connection with development of the Project.
3.2. Rules. Regulations and Official Policies. Except as otherwise specified
' in this Agreement and the Project Approvals, the rules, regulations and official policies
governing the permitted uses of the Property, the density and intensity of use of the
Property, the provisions for reservation or dedication of land for public purposes and the
design, improvement and construction standards and specifications applicable to
Development of the Property shall be the Existing Regulations. In connection with any
subsequent approval or action which CITY is permitted or has the right to make under
this Agreement relating to the Project, CITY shall exercise its discretion or take action in
a manner which complies and is consistent with this Agreement, the Existing Regulations
and such other standards, terms and conditions contained in this Agreement. An
overview and non - exhaustive list of Existing Regulations is listed in Exhibit "C ". CITY
has certified two copies of each of the documents listed on Exhibit "C ". CITY has
retained one set of the certified documents and has provided OWNER with the second
set.
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3.3.1. Uniform Codes. This Agreement shall not prevent CITY from
applying new rules, regulations and policies relating to uniform codes adopted by the
State of California, such as the Uniform Building Code, National Electrical Code.
Uniform Mechanical Code or Uniform Fire Code, as amended, and the application of the
aforementioned uniform codes is hereby approved including as the same may be amended
by CITY from time to time.
L\TEMECULANELILILLYIDEVAGR 3/9/99 0
' 3.3.2. State and Federal Laws and Regulations. In the event that State
or Federal laws or regulations prevent or preclude compliance with one or more of the
provisions of this Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal laws or regulations;
provided, however, that this Agreement shall remain in full force and effect to the extent
it is not inconsistent with such laws or regulations and to the extent such laws or
regulations do not render such remaining provisions impractical to enforce.
Notwithstanding the foregoing. CITY shall not adopt or undertake any regulation,
program or action, or fail to take any action which is inconsistent or in conflict with this
Agreement until CITY makes a finding that such regulation, program action or inaction is
required (as opposed to permitted) to comply with such State and Federal laws or
regulations after taking into consideration all reasonable alternatives.
3.3.3. Regulation for Health and Safe N. Notwithstanding anything to
the contrary in this Agreement. CITY shall have the right to apply CITY regulations
(including amendments to the Existing Regulations) adopted by the CITY after the
Effective Date, in connection with any Future Development Approvals , or deny, or
impose conditions of approval on, any Future Development Approvals in CITY's sole
discretion if such application is required to protect the physical health and safety of
existing or future occupants of the Property, or any portion thereof or any lands adjacent
thereto.
3.4. Vested Right. By entering into this Agreement and relying thereupon,
OWNER is obtaining vested rights to proceed with the Development anticipated by the
Project in accordance with the terms and conditions of this Agreement, and in accordance
with, and to the extent of, the Project Approvals. By entering into this Agreement and
relying thereupon, CITY is securing certain public benefits which enhance the public
health, safety and welfare, a pariial listing of which benefits is set forth in Section 4.1.
CITY therefore agrees to the following:
3.4.1. No Conflicting Enactments. Except as provided in Section 3.3 of
this Agreement, neither the City Council nor any other agency of CITY shall enact a rule,
regulation, ordinance or other measure (collectively `law') applicable to the Property
which is inconsistent or in conflict with this Agreement. Any law, whether by specific
reference to the Development Agreement or otherwise, shall be considered to conflict if it
has any of the following effects:
0) Limits or reduces the density or intensity of the
Development as regulated by the Existing Regulations or otherwise requires any
reduction or increase in the number, size or square footage of lot(s), structures, buildings
or other improvements; or
LITEMECULA1EL1.ILLY%DEVAGR 3/9199
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(ii) Applies to the Property, but is not uniformly applied by the
CITY to all substantially similar development within the CITY.
The above list is not intended to be comprehensive or to limit the types of action that
would conflict with Existing Regulations and this Agreement.
3.4.2. Consistent E.nactmentc. By way of enumeration and not
limitation, the following types of enactments shall be considered consistent with this
Agreement and Existing Regulations and not in conflict:
(i) Relocation of structures within the Property pursuant to an
application from OWNER: and
(ii) Changes in the phasing of the development pursuant to an
application from OWNER.
3.4.3. Initiative Measures. In addition to and not in limitation of the
foregoing, it is the intent of OWNER and CITY that no moratorium or other limitation
(whether relating to the development of all or any part of the Project and whether enacted
' by initiative or otherwise) affecting parcel or subdivision maps (whether tentative, vesting
tentative or final), site development permits, precise plans, site development plans,
building permits, occupancy certificates or other entitlements to use approved, issued or
granted within CITY, or portions of CITY, shall apply to the Project to the extent such
moratorium or other limitation would restrict OWNER's right to develop the Project in
such order and at such rate as OWNER deems appropriate. CITY agrees to cooperate
with OWNER in all reasonable manners in order to keep this Agreement in full force and
effect. In the event of any legal action instituted by a third party or other governmental
entity or official challenging the validity of any provision of this Agreement, the parties
hereby agree to cooperate in defending such action. In the event of any litigation
challenging the effectiveness of this Agreement, or any portion hereof, this Agreement
shall remain in full force and effect while such litigation, including any appellate review,
is pending.
3.4.4. Consistency Between This Agreement and Current Laws.
CITY represents that there are no rules, regulations, ordinances, policies or other
measures of the CITY in force as of the Agreement Date that would interfere with
Development and use of all or any part of the Property according this Agreement.
LVITMECULAIELILILLY \DEVAGR 319/99 11
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3.5. Future Amendments to Development Plan The following rules apply to
future amendments to the Development Plan:
3.5.1. OWNER's Written Consent. Any Development Plan
amendment to which OWNER does not agree in writing shall not apply to the Property or
the Project while this Agreement is in effect.
3.5.2. Concurrent Development Agreement Amendment. Any
Development Plan amendment requiring amendment of this Agreement shall be
processed concurrently with an amendment to this Agreement.
3.5.3. Effect of Amendment. Except as expressly set forth within this
Agreement, a Development Plan amendment will not alter, affect, impair or otherwise
impact the rights, duties and obligations of the parties under this Agreement.
4. Obligations of the Parties.
4.1. Benefits to CITY. The direct and indirect benefits CITY (including,
without limitation the existing and future residents of CITY) will receive pursuant to the
implementation of the Agreement include. but are not limited to, the following:
4.1.1. Comprehensive Plannin . Providing a comprehensive planning
effort;
4.1.2. Short Term Employment. Creating substantial employment
opportunities through the construction and development phase;
4.1.3 Long Term Employmen t. Creating substant 1 crnploym.cnt
opportunities subsequent to the Development;
4.1.4
IMprovements. The development of the Property, including
offsite infrastructure improvements; and
4.15 Settlement of Litigation. The adoption of this Agreement shall
result in the settlement of an eminent domain action between the parties.
4.2. Limitation on Development Fees. Certain presently undefined
development impact and processing fees will be imposed on the Development as
conditions of approval. In addition to the account described in Section 3.1.3, CITY shall
establish an account in the full sum of Seventy -eight Thousand Four Hundred Fifty
Dollars ($78,450.00) to be used, from time to time, to satisfy the development impact and
processing fees attributed to the Development or any portion thereof Such account shall
UTEMECULAIELILILLYIDEVAGR 3/9/99 12
al
' not accrue interest and shall not be subject to reimbursement to OWNER as to anv
unexpended sums. This principal sum reflects an amount that CITY would otherwise
have transferred to OWNER as consideration for certain land acquisition necessary for
CITY right -of -way.
4.3. Dedications and Exactions. At the appropriate points in the
Development of the Property, OWNER shall irrevocably offer for dedication or reserve
for acquisition by City or its designee the streets, rights -of -way, parkland and other areas
as more fully set forth in the Future Development Approvals. In addition to and not in
limitation of the foregoing, CITY shall not levy or require any further dedications on or
along Margarita Road or Overland Drive, nor shall CITY levy or require any exactions in
connection with Project Approvals or Future Development Approvals which would
directly limit access to the Property. Notwithstanding the foregoing, Future Development
Approvals will be reviewed in a manner consistent with the general review procedures of
the CITY accorded the particular type of Future Development Approval being sought and
necessary conditions imposed in a manner consistent with this Agreement.
4.4. Public Improvement Districts. CITY agrees not to, on its own initiative,
undertake to include the Property in any public improvement district, assessment district
and/or community facilities district (collective "Districts ") which District is not intended
' to have a city -wide or substantially city-wide effect. A substantially city -wide effect shall
mean the District is applicable to not less than sixty percent (60 %) of the land or owners
within the City.
4.5 Existing Community Facilities District Assessments. CITY agrees to
use its reasonable best efforts to maintain the level of the current tax rate and amount of
outstanding bonded indebtedness. CITY shall, at all times, conduct its deliberations with
the goal of satis,ying the highest levels of benefit to CITY as a whole and shall base its
decision on the best interests of CITY as a whole. Nothing herein shall require CITY to
challenge, in any manner, decisions of superior levels of government that may affect the
tax levels on the Property.
4.6 Termination of Eminent Domain Action. In addition to the other
compensation in this Agreement, the entire deposit in the eminent domain action
(Riverside County Superior Court Case No. RIC 314613, referred to in the rest of this
section as the "Action ") of Ninety -six Thousand Five Hundred Fifty -six Dollars
($96,556.00), plus any interest that accrued on the deposit, shall be immediately released
to OWNER. If other person(s) claim any part of the deposit, CITY shall instead pay
OWNER Ninety-six Thousand Five Hundred Fifty -six Dollars ($96,556.00) by check.
Once OWNER receives such funds, OWNER shall, at CITY's option, either (a) stipulate
to a final order of condemnation for the "subject property" defined in the Complaint in
IUTEMECULATLILILLrDEVAGR 319199 13
Eminent Domain in the Action. or (b) sign and deliver a deed transferring said "subject
Property" to CITY, with CITY then dismissing OWNER from the Action.
5. Further Assurances to OWNER Regarding Exercise of Reserved Authority,
5.1. Adoption of General Plan and Granting of Other Projeet Approvals.
In preparing and adopting a general plan amendment, zoning district change and in
granting the other Project Approvals. CITY will consider the health, safety and welfare of
the residents of CITY.
5.2. Assurances to OWNER. The parties further acknowledge that the public
benefits to be provided by OWNER to CITY pursuant to this Agreement are in
consideration for and reliance upon assurances that the Property can be developed in
accordance with the Project Approvals and this Agreement. Accordingly, while
recognizing that the Development of the Property may be affected by exercise of the
authority and rights reserved and excepted as provided in Sections 3.3.1 and 3.3.2.
('Reserved Authority ") or this Agreement, OWNER is concerned that normally the
judiciary extends to local agencies significant deference in the adoption of land use
regulations which might permit CITY in violation of the Reserved Authority, to attempt
to apply regulations which are inconsistent with the Project Approvals pursuant to the
exercise of the Reserved Authority. Accordingly, OWNER desires assurances that CITY
shall not and CITY agrees that it shall not further restrict or limit the development of the
Property in violation of this Agreement except in strict accordance with the Reserved
Authority.
5.3. Judicial Review. Based on the foregoing, in the event OWNER judicially
(including by way of a reference proceeding) challenges the application of a future land
use regulation as being in violation of this Agreement and as not being a land use
regulation adopted pursuant to the Reserved Authority, OWNER shall bear the burden of
proof in establishing that such rule, regulation or policy is inconsistent with the Existing
Regulations and the Project Approvals and CITY shall thereafter bear the burden of proof
in establishing that such regulation was adopted pursuant to and in accordance with the
Reserved Authority and was not applied by CITY in violation of this Agreement.
6. Indemnification. Except to the extent of the negligence or willful misconduct of
the Indemnified Parties (as defined below), OWNER, and with respect to the portion of
the Property transferred to them, the transferee agrees:
(i) to indemnify, defend, and hold harmless the Indemnified Parties 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 therefor as a direct or indirect result of CITY's approval of this
LATEMECULAAELILILLY\DEVAGR 6/1199 14
Development Agreement. OWNER's duties under this Section 6(i) are solely subject to
and conditioned upon the Indemnified Parties' written request to OWNER to defend
and/or indemnify CITY. Without in any way limiting the provisions of this Section 6(i),
the parties hereto agree that this Section 6(i) shall be interpreted in accordance with the
provisions of California Civil Code Section 2778 in effect as of the Agreement Date.
(ii) during the term of this Agreement, to defend CITY and its agents, officers,
contractors, attorney, and employees (the "Indemnified Parties ") from and against any
claims or proceeding against the Indemnified Parties to set aside, void or annul the
approval of this Development Agreement. CITY shall retain settlement authority with
respect to any matter provided that prior to settling any such lawsuit or claim, OWNER
shall provide CITY with a minimum ten (10) business days written notice of its intent to
settle such lawsuit or claim. If CITY(in its reasonable discretion) does not desire to settle
such lawsuit or claim, it may notify OWNER of the same, in which event OWNER may
still elect to settle the lawsuit or claim as to itself. but CITY may elect to continue such
lawsuit, but at OWNER's cost and expense, so long as the CITY's decision is predicated
upon a legitimate and articulated threat to either the exercise of its police powers or a risk
of harm to those present within the CITY.
T Relationship of Parties. The contractual relationship between CITY and
OWNER is such that OWNER is an independent contractor and not the agent or
employee of CITY. CITY and OWNER hereby renounce the existence of any form of
joint venture or partnership between them, and agree that nothing contained in this
Agreement or in any document executed in connection with the Project shall be construed
as making CITY and OWNER joint venturers or partners.
8. Amendment or Cancellation of Agreement. This Agreement may be amended
or canceled in whole or in part only by mutual consent of the parties iii the manner
provided for in Government Code Section 65868. No amendment or modification of this
Agreement or any provision hereof shall be effective unless set forth in writing and
signed by duly authorized representatives of each party hereto. This provision shall not
limit CITY's or owner remedies as provided by Section 10.
9. Periodic Review of Compliance with Agreement
9.1. Periodic Review. CITY and OWNER shall review this Agreement at
least once every 12 -month period from the date this Agreement is executed. 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.
L \TEMECULA \ELILILLY1DEVAGR 3/9199 15
9.2. Good -Faith Compliance. During each periodic review, OWNER shall be
required to demonstrate good faith compliance with the terms of this Agreement.
OWNER agrees to furnish such reasonable evidence of good faith compliance as CITY,
in the exercise of its reasonable discretion, may require. If requested by OWNER, CITY
agrees to provide to OWNER, a certificate that OWNER or a Development Transferee is
in compliance with the terms of this Agreement, provided OWNER reimburses CITY for
all reasonable and direct costs and fees incurred by CITY with respect thereto.
9.3. Failure to Conduct Annual Review. The failure of the CITY to conduct
the annual review shall not be an OWNER default. Further, OWNER shall not be
entitled to any remedy for CITY failure to conduct this annual review.
9.4. 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. Within thirty (30) days following receipt of such notice, OWNER
shall submit evidence to the CITY Council of Owner's good faith compliance with this
Agreement and such review and determination shall proceed in the same manner as
provided for the annual review. The City Council shall initiate its review pursuant to this
Section 9.4 only if it has probable cause to believe the CITY's general health, safety or
welfare is at risk as a result of specific acts or failures to act by OWNER.
9.5 Administration of Agreement. 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 City Council, provided that
any such appeal shall be filed with the City Clerk within ten (10) days after OWNER
receives notice of the staff decision. The City Council shall render, at a noticed public
hearing, its decision to affirm, reverse or modify the staff decision within thirty (30) days
after the appeal was filed.
9.6. Availability of Documents. If requested by OWNER, CITY agrees to
provide to OWNER copies of any documents, reports or other items reviewed,
accumulated or prepared by or for CITY in connection with any periodic compliance
review by CITY, provided OWNER reimburses CITY for all reasonable and direct costs
and fees incurred by CITY with respect thereto. CITY shall respond to OWNER's
request on or before ten (10) business days have elapsed from CITY's receipt of such
request.
10. Emits of Default Remedies and Termination. Unless amended or canceled as
provided in Section 8, or modified or suspended pursuant to Government Code Section
65869.5 or terminated pursuant to this Section 10, this Agreement is enforceable by either
party hereto.
L\TEMECULAIELILILLY1DEV.AGR 3/9/99 16
10.1. Defaults by OWNER. If CITY determines on the basis of a
preponderance of the evidence that OWNER has not complied in good faith with the
terms and conditions of this Agreement. CITY shall, by written notice to OWNER,
specify the manner in which OWNER has failed to so comply and state the steps
OWNER must take to bring itself into compliance. If, within sixty (60) days after the
effective date of notice from CITY specifying the manner in which OWNER has failed to
so comply, OWNER does not commence all steps reasonably necessary to bring itself
into compliance as required and thereafter diligently pursue such steps to completion,
then OWNER shall be deemed to be in default under the terms of this Agreement. CITY
may terminate this Agreement pursuant to Government Code Section 65865.1. OWNER
agrees that its default hereunder is a conclusive representation that it is consenting to the
cancellation of this Agreement. In event of default by OWNER, except as provided in
Section 10.3, CITY's sole remedy for any breach of this Agreement by OWNER shall be
CITY's right to terminate this Agreement.
10.2. Defaults by CITY. If OWNER determines on the basis of a
preponderance of the evidence that CITY has not complied in good faith with the terms
and conditions of this Agreement, OWNER shall, by written notice to CITY, specify the
manner in which CITY has failed to so comply and state the steps CITY must take to
bring itself into compliance. If, within sixty (60) days after the effective date of notice
' from OWNER specifying the manner in which CITY has failed to so comply, CITY does
not commence all steps reasonably necessary to bring itself into compliance as required
and thereafter diligently pursue such steps to completion, then CITY shall be deemed to
be in default under the terms of this Agreement and OWNER may terminate this
Agreement and, in addition, may pursue any other remedy available at law or equity,
including specific performance as set forth in Section 10.3.
10.3. Specific Perfornmaikey Remedy.. Due to the size, nature and scope of the
Project, it will not be practical or possible to restore the Property to its natural condition
once implementation of this Agreement has begun. After such implementation, OWNER
may be foreclosed from other choices it may have had to utilize the Property and provide
for other benefits. OWNER has invested significant time and resources and performed
extensive planning and processing of the Project in agreeing to the terms of this
Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement, and it is not
possible to determine the sum of money which would adequately compensate OWNER
for such efforts. For the above reasons, CITY and OWNER agree that damages would
not be an adequate remedy if CITY fails to carry out its obligations under this Agreement
and that OWNER shall have the right to seek and obtain specific performance as a
remedy for any breach of this Agreement. CITY and OWNER further acknowledge that,
if OWNER fails to carry out its obligations under this Agreement, CITY shall have the
right to refuse to issue any permits or other approvals which OWNER would otherwise
UTENECULAIELILILLYIDEVAGR 3/9199 17
have been entitled to pursuant to this Agreement. Therefore, CITY's remedy of
terminating this Agreement shall be sufficient in most circumstances if OWNER fails to
carry out its obligations hereunder. Notwithstanding the foregoing, if CITY issues a
permit or other approval pursuant to this Agreement in reliance (explicitly stated in
writing) upon a specified condition being satisfied by OWNER in the future, and if
OWNER then fails to satisfy such condition, CITY shall be entitled to specific
performance for the sole purpose of causing OWNER to satisfy such condition. CITY's
right to specific performance shall be limited to those circumstances set forth above, and
CITY shall have no right to seek specific performance to cause OWNER to otherwise
proceed with the Development of the Project in any manner.
10.4. Institution of Legal Action. In addition to any other rights or remedies,
OWNER or CITY may institute legal action to cure, correct or remedy any default, to
enforce any covenants or agreements herein, to enjoin any threatened or attempted
violation hereof to recover damages for any default, or to obtain any other remedies
consistent with the purpose of this Agreement. Such legal action shall be heard by a
reference from the Orange County Superior Court pursuant to the reference procedures of
the California Code of Civil Procedure Sections 638, et sea. OWNER and CITY shall
agree upon a single referee who shall then try all issues, whether of fact or law, and report
a finding and judgment thereon and issue all legal and equitable relief appropriate under
the circumstances of the controversy before him. If OWNER and CITY are unable to
agree on a referee within ten (10) days of a written request to do so by either party hereto,
either party may seek to have one appointed pursuant to the California Code of Civil
Procedure Section 640. The cost of such proceeding shall initially be bome equally by
the parties. Any referee selected pursuant to this Section 10.4 shall be considered a
temporary judge appointed pursuant to Article 6, Section 21 of the California
Constitution.
10.5. Estoppel Certificates. Either party may at any time deliver written notice
to the other party requesting an estoppel certificate (the "Estoppel Certificate ") stating:
10.5. 1. The Agreement is in full force and effect and is a binding
obligation of the parties.
10.5.2. The Agreement has not been amended or modified either orally or
in writing or, if so amended, identifying the amendments.
10.5.3. No default in the performance of the requesting party's obligations
under the Agreement exists or, if a default does exist, the nature and amount of any
default. A party receiving a request for an Estoppel Certificate shall provide a signed
certificate to the requesting party within thirty (30) days after receipt of the request. The
' City Manager or any person designated by the City Manager may sign Estoppel
L\TEMECULA \ELILILLY\DEVAGR 3/9/99 18
Certificates on behalf of the CITY. Any officer of OWNER may sign on behalf of
OWNER. An Estoppel Certificate may be relied on by assignees and mortgagees.
10.5.4. In the event that one party requests an Estoppel Certificate from
the other, the requesting party shall reimburse the other party for all reasonable and direct
costs and fees incurred by such party with respect thereto.
11. Waivers and Delays.
11.1. No Waiver. Failure by a party to insist upon the strict performance of any
of the provisions of this Agreement by the other party, and failure by a party to exercise
its rights upon a default by the other party hereto, shall not constitute a waiver of such
party's right to demand strict compliance by such other party in the future.
11.2. Third Parties. Non - performance shall not be excused because of a failure
of a third person. except as provided in Section 11.3.
11.3. Force Maieure. OWNER 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 OWNER control, government regulations (including,
without limitation, local, state and federal environmental and natural resource
regulations), voter initiative or referenda, moratoria (including, without limitation, any
"development moratorium" as that term is applied in Government Code Section 66452.6)
or judicial decisions.
11.4. Extensions. The Term of this Agreement and the time for performance by
O V NER or CITY of any of its obligations hereunder or pursuant to the Project
Approvals shall be extended by the period of time that any of the events described in
Section 11.3 exist and/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:
11.4.1. Litigation. The period of time after the Effective Date during
which litigation related to the Project Approvals or having the actual effect of delaying
implementation of the Project is pending, including litigation pending on the Effective
Date. This period shall include any time during which appeals may be filed or are
pending.
11.4.2. Government Agencies. Any delay resulting from the acts or
omissions of the CITY or any other governmental agency or public utility and beyond the
' reasonable control of OWNER.
LVTEMECULATLILILLY%DEVAGR 3i9/99 19
' 11.5. Notice of Delay. OWNER shall give notice to CITY of any delay which
OWNER believes to have occurred as a result of the occurrence of any of the events
described in Section 11.3. For delays of six months or longer, this notice shall be given
within a reasonable time after OWNER becomes aware that the delay has lasted six
months or more. In no event, however, shall notice of a delay of any length be given later
than thirty days after the end of the delay or thirty days before the end of the Term,
whichever comes first.
J
12. Notices. All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by certified mail, postage prepaid, return receipt
requested. Notices required to be given to CITY shall be addressed as follows:
City of Temecula
43200 Business Park Drive
Post Office Box 9033
Temecula, California 92589 -9033
Arm.: City Planner
With a copy to:
Richards, Watson & Gershon
Thirty - Eighth Floor
333 South Hope Street
Los Angeles, California 90071 -1469
Attn.: Peter M. Thorson, City Attorney
Notices required to be given to OWNER shall be addressed as follows:
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana 46285
Attention: John J. Crisel
Manager, Strategic Real Estate
With a copy to:
Hect, Solberg, Robinson & Goldberg, LLP
600 West Broadway, 8th Floor
San Diego, California 92101
Attention: Paul E. Robinson
GTFNIECULAXELILILLYiDEVAGR 3/9199 20
1
Any notice given as required herein shall be deemed given only if in writing and upon
delivery personally or by independent courier service. A party may change its address for
notices by giving notice in writing to the other party as required herein and thereafter
notices shall be addressed and transmitted to the new address.
13. Attorneys' Fees. If legal action is brought by either party against the other for
breach of this Agreement, including actions derivative from the performance of this
Agreement, or to compel performance under this Agreement, the prevailing party shall be
entitled to an award of its costs, including reasonable attorneys' fees, and shall also be
entitled to recover its contribution for the costs of the referee referred to in Section 10.4
above as an item of damage and/or recoverable costs.
14. Recordine. This Agreement and any amendment or cancellation hereto shall be
recorded, at no cost to CITY, in the Official Records of Riverside County by the City
Clerk within the period required by Section 65868.5 of the Government Code.
15. Effect of Agreement on Title.
15.1. Effect on Title. OWNER and CITY agree that this Agreement shall not
continue as an encumbrance against any portion of the Property as to which this
Agreement has terminated.
15.2. Encumbrances and Lenders' Rights. OWNER and CITY hereby agree
that this Agreement shall not prevent or limit any owner of any interest in the Property, or
any portion thereof, at any time or from time to time in any manner, at its or their sole
discretion, from encumbering the Property, the improvements thereon, or any portion
thereof with any mortgage, deed of trust sale and leaseback arrangement or other security
device. CITY acknowledges that any Lender (as hereinafter defined) 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 property owner(s) and/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. A default under
this Agreement shall not defeat, render invalid, diminish or impair the lien of any Lender.
The mortgagee of a mortgage or beneficiary of a deed of trust or holder of
any other security interest in the Property or any portion thereof and their successors and
assigns. including without limitation the purchaser at a judicial or non - judicial
foreclosure sale or a person or entity which obtains title by deed -in -lieu of foreclosure
( "Lender ") shall be entitled to receive a copy of any notice of Default (as defined in
Section 10.1 hereof) delivered to OWNER and, as a pre- condition to the institution of
L\TENECULATLILILLY\DEVAGR 3/9/99 21
legal proceedings or termination proceedings, the CITY shall deliver to 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 Default Notice ")
and shall allow the Lender(s) an opportunity to cure such defaults as set forth herein. The
Second Notice of Default shall specify in detail the alleged default and the suggested
means to cure it. After receipt of the Second Default Notice, each such Lender shall have
the right, at its sole option, within ninety (90) days to cure such default or, if such default
cannot reasonably be cured within that ninety (90) day period, to commence to cure such
default, in which case no default shall exist and the City shall take no further action.
Notwithstanding the foregoing, if such default shall be a default which can only be
remedied by such Lender obtaining possession of the Property, or any portion thereof.
and such Lender seeks to obtain possession, such Lender shall have until ninety (90) days
after the date obtaining such possession to cure or, if such default cannot reasonably be
cured within such period, then to commence to cure such default. Further, 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.
16. Severability of Terms. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, the remainder of this
' Agreement shall not be affected thereby if the tribunal finds that the invalidity was not a
material part of consideration for either party. The covenants contained herein are mutual
covenants. The covenants contained herein constitute conditions to the concurrent or
subsequent performance by the party benefited thereby of the covenants to be performed
hereunder by such benefited party.
17. Subsequent Amendment to Authorizing Statute. This Agreement has been
entered into in reliance upon the provisions of the Development Agreement Legislation in
effect as of the Agreement Date. Accordingly, subject to Section 33.2 above, to the
extent that subsequent amendments to the Government Code would affect the provisions
of this Agreement, such amendments shall not be applicable to this Agreement unless
necessary for this Agreement to be enforceable or required by law or unless this
Agreement is modified pursuant to the provisions set forth in this Agreement and
Government Code Section 65868 as in effect on the Agreement Date.
18. Rules of Construction and Miscellaneous Terms.
18.1. 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
meaning. This Agreement and any dispute arising hereunder shall be governed and
interpreted in accordance with the laws of the State of California. 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
UTEMECULA \ELILILLY\DEVAGR 3/9199 22
functions of the CITY, and in particular, the CITY's police powers. In this regard, the
parties understand and agree that this Agreement shall not be deemed to constitute the
surrender or abnegation of the CITY's governmental powers over the Property.
18.2. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this
Agreement.
18.3. Gender. The singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory, "may" is permissive.
18.4. No Joint and Several Liabiliri. 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, including but not limited to the
obligations to defend and indemnify CITY, arising by reason of such breach shall be
applicable solely to the OWNER that committed the breach. However. CITY shall send a
copy of any notice of violation to all OWNERS, including those not in breach.
18.5. Time of Essence. Time is of the essence regarding each provision of this
Agreement of which time is an element.
' 18.6. Recital . All Recitals set forth herein are incorporated in this Agreement
as though fully set forth herein.
i✓'
18.7. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and the Agreement
supersedes all previous negotiations, discussion and agreements between the parties, and
no paro! evidence of any prior or other agreement shall be permitted to contradict or vary
the terms hereof.
19. Extension of Mans. In accordance with Government Code Section 66452.6(a),
any tentative map approved which relates to all or a portion of the Property shall be
extended for the greater of (i) the Term of the Agreement or (ii) expiration of the tentative
map pursuant to Section 66452.6.
20. Not for Benefit of Third Parties. This Agreement and all provisions hereof are
for the exclusive benefit of CITY and OWNER and its Development Transferees and
shall not be construed to benefit or be enforceable by any third party.
L \TEMECU.ATLILILMDEVAGR 3 /9199 23
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year dated below.
Dated: .199 -CITY-
CITY OF TEMECULA,
a municipal corporation
By:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Dated: .Tune 9 , 1999
Mayor
"OWNER"
ELI LILLY AND CO., a corporation
By:
J
Its: Vice President - Manufacturing
By:
Its:
L\TEMF.CULA \ELILILLY\DEVAGR 319/99 24
I
State of California )
ss
County of )
On
before me,
personally appeared , personally known to me
or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his/her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
State of California )
ss
County of )
On
Signature of Notary
before me,
personally appeared , personally known to me
or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that hz';he /theyy
executed the same in his/her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
UTEMECULA \ELILILLY\DEVAGR 7/9/99 25
Signature of Notary
State of California )
) ss
County of )
On before me,
personally appeared , personally known to me
or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
Signature of Notary
Znd'ko Q.
State of Eatifvrnia )
ss
County of fflar;on )
On Sgnc 9, 199 9 before me,Ra6 S. Tkornab
personally appeared (a:r-katj L. Eaol'-- , personally known to me
or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
I.ITEMECULAIELILILLY�DEVAGR 3/9/99 26
Signature of Votary
CERTIFICATE
I, James B. Looters, Assistant Secretary of Eli Lilly and Company, a
corporation duly organized and existing under the laws of the State of Indiana
( "Company "), certify that pursuant the Company's By -Laws, resolutions of its Board
of Directors, and delegations of authority thereunder, Michael L. Eagle, Vice
President - Manufacturing, has the authority to execute for and on behalf of the
Company that particular instrument entitled "Development Agreement" and
entered into by and between the Company and the City of Temecula, a municipal
corporation organized and existing under the laws of the State of California, and
that this authority remains in effect as of the date of this Certificate.
I further certify that the signature below is the signature of Michael L. Eagle.
Michael L. Eagl4�
IN WITNESS WHEREOF, I have executed this Certificate and affixed the
seal of the Company this 44�^ day of J ✓nL , 1999. `t
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Secretary
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before � me, the undersigned, a Notary Public in and for said County and
State, this , day of �, 1999, personally appeared James B. Lootens,
Assistant Secretary of Eli Lilly and Company, an Indiana Corporation, and
acknowledged the execution of the foregoing Certificate for and on behalf of said
corporation.
I have hereunto subscribed my name and affixed by official seal.
(Seal)
Resident of County, Indiana.
My Commission expires:
Printed Nam .
Notary Public
MARY J. EVERM, Notary Pubic
My Commission Upges: April 26.2008
Residing in Hamilton Courtly, Indiana
EXHIBIT A
PROPERTY OWNED BY ELI LILLY & COMPANY
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EXHIBIT A
PROPERTY OWNED BY EU ULLY & COMPANY
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EXHIBIT B
PROPERTY SUBJECT TO THE POTENTIAL
GENERAL PLAN AMENDMENT AND ZONE CHANGE
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C
EXHIBIT B
PROPERTY SUBJECT TO THE POTENTIAL
GENERAL PLAN AMENDMENT AND ZONE CHANGE
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EXHIBIT C
NON - EXHAUSTIVE LIST OF EXISTING REGULATIONS
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' EXHIBIT C
NON - EXHAUSTIVE LIST OF EXISTING REGULATIONS
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1. General Plan
2. The Development Code (Titre 17 of the Temecula Municipal Code)
3. The Subdivision Ordinance (Title 16 of the Temecula Municipal Code)
4. Citywide Design Guidelines
4. Habitat Conservation Ordinance
5. Mount Palomar Lighting Ordinance
6. Uniform Building Code, as locally adopted
7. Uniform Fire Code, as locally adopted
8. Standard Drawings for Public Works Construction
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