HomeMy WebLinkAbout95-10 CC OrdinanceORDINANCE NO. 95-10
A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA
APPROVING THAT CERTAIN DEVELOPMENT AGREEMENT NO.
DV95-0001 BY AND BETWEEN HANCOCK DEVELOPMENT COMPANY,
INC., JOHN FIRESTONE, AND THE CITY OF TEMECULA, FOR
PLANNING APPLICATION NO. 95-003, WESTSIDE SPECIFIC PLAN
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY
RESOLVE AS FOLLOWS:
WHEREAS, the Planning Commission of the City of Temecula has received an
application for a Development Agreement No. DV95-0001, Westside Specific Plan, Hancock
Development and John F. Firestone (hereinafter "Development Agreement"); and
WHEREAS, the Planning Commission held a noticed public hearing on May 15, 1995,
on the issue of recommending approval or denial of the Development Agreement; and
WHEREAS, the Planning Commission continued Development Agreement No. DV95-
0001 at their May 15, 1995 meeting to June 5, 1995; and
WHEREAS, at the public hearing, upon hearing and considering all testimony and
arguments, if any, of all persons deserving to be heard, said Commission considered all facts
relating to Development Agreement No. 95-0001 and recommended approval to the City
Council;
WHEREAS, the City Council held a noticed public hearing on June 13, 1995, on the
issue of recommending approval or denial of the Development Agreement; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TEMECULA
DOES FIND AS FOLLOWS:
Section 1. That the City Council approves the Development Agreement, in substantially
the form of Exhibit A, attached hereto and incorporated herein by this reference.
Section 2. That in approving the Development Agreement the City Council hereby make
the following findings:
1. The Development Agreement is consistent with the objectives, policies, general
land uses, and programs specified in the City of Temecula's General Plan in that the
Development Agreement makes reasonable provision for the use of certain real property for
commercial, residential and open space development and is consistent with the General Plan
Land Use Designations for the site; and,
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2. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use district in which the Property subject to the Development
Agreement is located as the Development Agreement provides for commercial, residential and
open space development 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 is consistent with the Westside Specific Plan; and,
3. 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,
4. The Development Agreement will not be detrimental to the health, safety, or
general welfare because it provides adequate assurances for the protection thereof; and,
5. Notice of the public hearing before the City Council was published in a newspaper
of general circulation at least ten (10) days before the City Council public hearing, and mailed
or delivered at least ten (10) days prior to the hearing to the project applicant and to each agency
expected to provide water, sewer, schools, police protection, and fire protection, and to all
property owners within one thousand feet (1,000') of the property as shown on the latest
equalized assessment roll; and,
6. Notice of the public h g before the City Council included the date, time, and
place of the public hearing, the identity Df the hearing body, a general explanation of the matter
to be considered, a general description and text or by diagram of the location of the real
property that is the subject of the hearing, and of the need to exhaust administrative remedies;
and,
7. The Development
Circulation Element of the General P
period of the Development Agreement
and conditions of approval imposed;
8. The Development Ag
in which the applicant proposes to
Residential is consistent with the
Designation; and,
9. The benefits that will
legislation and this Development Ag
a. Generation of
b. Public
C. Enhancement of
present and future residents of the City
ords\95-10
ent complies with the goals and objectives of the
and the traffic impacts of the development over the
. be substantially mitigated by the mitigation measures
at complies with requirements of the zoning district
p in that the Specific Plan zoning of High Density
um Density Residential General Plan Land Use
to the people of the City of Temecula from this
are as follows:
revenue;
facilities;
quality of life; including recreation facilities for
d. The opportunity for an adjacent residential -commercial project creating
significant job opportunities, sales tax and ad valorem tax revenues for the City;
e. Payment of Public Facilities Fees (fire and traffic signal mitigation);
f. Participation in special assessment districts to finance regional
infrastructure improvements; and,
g. The creation of recreation dedications and payment of in lieu fees for
public use and the protection of significant natural resources.
Section 3. The Development Agreement imposes upon the subject property the sam
land use regulations imposed by the Westside Specific Plan. Therefore, the Development
Agreement will have the same impact on the environment as the Westside Specific Plan. No
further environmental review beyond that undertaken for the Westside Specific Plan is necessary
because none of the circumstances described in Section 15162 of Title XVI of the California
Administrative Code ("CEQA Guidelines") are found to exist.
Section 4. PASSED, APPROVED AND ADOPTED this 27th day of June, 1995.
Ords\95-10 3
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE) SS
CITY OF TEMECULA)
I June S. Greek, City Clerk of the City of Temecula, California, do hereby certify that
the foregoing Ordinance No. 95-08 was duly introduced and placed upon its first reading at a
regular meeting of the City Council on the 13th day of June, 1995, and that thereafter, said
Ordinance was duly adopted and passed at a regular meeting of the City Council of the City of
Temecula on the 27th day of June, by the following roll call vote:
AYES:
3
COUNCILMEMBERS:
NOES:
0
COUNCILMEMBERS:
ABSENT:
0
COUNCILMEMBERS:
ABSTAINED:
1
COUNCILMEMBERS:
Ords\95-10
Lindemans, Parks, Roberts
None
None
Stone
Ju e S Greek, CMC,ity Clerk
EXEMPT FROM RECORDER'S FEES
Pursuant to Government
^ Code §16103, 27383
Recording Requested By
and When Recorded Return to:
CITY CLERK CITY OF TEMECULA
43174 Business Park Drive
Temecula, ca 92590-3606
DEVELOPMENT AGREEMENT
BY AND BETWEEN
AND HANCOCK DEVELOPMENT COMPANY, INC.
AND JOHN F. FIRESTONE
Development Agreement
No. DV95-0001
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE § § 65868.5
IRASTAFFWTf AAF I NTAT WNB kb
DEVELOPMENT AGREEMENT
' This Development Agreement ("Agreement") is made this day of
1995, by and between the CITY OF TEMECULA, a general law city in the
State of California (the "City") and HANCOCK DEVELOPMENT COMPANY, INC., a
California corporation ("Hancock") and JOHN F. FIRESTONE, an unmarried man
("Firestone") (together, Hancock and Firestone are referred to herein as the
"Developer"). In consideration of the mutual covenants and agreements contained
in this Agreement, the City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the following facts
and for the following purposes, each of which is acknowledged as true and correct
by the parties:
A. The City is authorized pursuant to Government Code Sections
65864 through 65869.5 (the "Development Agreement Statute") to enter into
binding agreements with persons or entities having legal or equitable interests in
real property for the development of such property in order to establish certainty in
the development process.
B. The parties desire to enter into this Agreement in conformance
in conformance with the Development Agreement Statute and the City of Temecula
Municipal Code in order to achieve the development of the "Westside Specific
Plan" area (the "Site") as expressly provided under the terms of this Agreement.
' The legal description of the Site is shown on Exhibit "A" attached hereto. The
parties likewise desire to provide complementary land uses to the Old Town
Temecula Specific Plan and provide public services and urban infrastructure, all in
the promotion of the health, safety, and general welfare of the residents of the City
of Temecula.
C. The development for the Site, as contemplated by the Westside
Specific Plan includes special uses that complement the uses permitted by the Old
Town Temecula Specific Plan and the General Plan of the City (the "General Piano),
including a "Wild West" arena, a hotel, supporting commercial, high density
residential, a mixed-use transition area and natural open space areas (the
"Project").
D. On May 15, 1995, the Planning Commission of the City of
Temecula held a duly noticed public hearing on the Developer's application for the
Agreement, the Westside Specific Plan (Planning Application No. PA95-0003) (the
"Westside Specific Plan") and Tentative Tract Map No. 28011 (Planning
Application No. PA95-0004) (the "Tentative Map") (together, the Westside Specific
Plan and the Tentative Map are referred to herein as the "Project Approvals") and
by Resolution Nos. recommended to the City Council approval of the
Project Approvals and this Agreement.
E. On , 1995, the City Council, held a duly noticed
' public hearing on the Westside Specific Plan, the Tentative Map and this
aWAFFFFrwar4VJrrr.0r encs m 1
Agreement.
' F. On , 1995, the City Council of the City adopted
Ordinance No. approving the Westside Specific Plan, Resolution No.
approving the Tentative Map and Ordinance No. approving this Agreement
with the Developer.
G. An environmental review has been conducted and approved in
conjunction with the Project Approvals and this Agreement in accordance with the
California Environmental Quality Act and the City Council has considered and
certified Environmental Impact Report (Planning Application No. PA95-0031).
H. The City desires to obtain the binding agreement of the
Developer for the development of the Site in accordance with the provisions of this
Agreement and the approved Project.
I. The Developer desires to obtain the binding agreement of the
City to permit the Developer to develop the Project and Site in accordance with the
"Applicable Rules" (as hereinafter defined) and this Agreement.
J. Developer has applied to the City in accordance with applicable
procedures for approval of this mutually binding Agreement. The Planning
Commission and City Council of the City has given notice of Intention to consider
the agreement, has conducted public hearings thereon pursuant to the Government
Code, and has found that the provisions of this Agreement are consistent with the
Applicable Rules, including, without limitation, the Westside Specific Plan and the
City's General Plan.
K. This Agreement is consistent with the present public health,
safety, and welfare needs of the residents of the City and the surrounding region.
The City has specifically considered and approved the impact and benefits of the
Project upon the welfare of the region.
L. This Agreement will bind the City to the terns and obligations
specified in this Agreement and will limit, to the degree specified in the Agreement
and under State law, the future exercise of the City's ability to delay, postpone,
preclude or regulate development of the Project on the She, except as provided for
herein.
M. In accordance with the Development Agreement Statute, this
Agreement eliminates uncertainty in planning process and provides for the orderly
development of the Project. Further, this Agreement eliminates uncertainty about
the validity of exactions imposed by the City, allows installation of necessary
improvements, provides for public services appropriate to the development of the
Site, and generally serves the public interest within the City of Temecula and the
surrounding region.
' 2. Definitions. In this Agreement, unless the context otherwise requires.,
aVsrAFwvnK+nmrf.0T emus 10 2
(a) "Applicable Rules' means the rules, regulations and official
policies governing permitted uses of the site, governing density, and governing
' design, improvement and construction standards and specifications applicable to
the development of the Site in force at the time of the "Effective Date" las
hereinafter defined), Including, without limitation, the General Plan, City's current
Zoning Code, which Is comprised of County of Riverside Ordinance No. 348, as
adopted and amended by City, and the Project Approvals. Notwithstanding the
foregoing, nothing in this Agreement shall preclude City from applying changes
occurring from time to time in the Uniform Building Code, Uniform Electrical Code,
Uniform Fire Code, Uniform Mechanical Code, or Uniform Plumbing Code, provided
that such changes (i) are found by City to be necessary to the health or safety of
the citizens of City and 1)i) are generally applicable to all property in City.
Prior to the Effective Date, City and Developer shall use
reasonable efforts to identify two identical sets of the Applicable Rules, one set for .
City and one set for Developer, so that if it becomes necessary in the future to
refer to any of the Applicable rules, there will be a common set of the Applicable
Rules available to both parties.
(b) "Discretionary Actions; Discretionary Approvalsm are actions
which require the exercise of judgment or a decision, and which contemplate and
authorize the imposition of revisions or conditions, by the City, including any
board, commission, or department of the City and any officer or employee of the
City, in the process of approving or disapproving a merely requires the City,
' including any board, commission, or department of the City and any officer or
employee of the City, to determine whether there has been compliance with
applicable statutes, ordinances, regulations, or conditions of approval.
(c) "Effective Date" is the date the ordinance approving this
Agreement became effective, which date was , 1995.
(d) "Future Approvals" means any development of the Property
which requires Discretionary Approvals pursuant to the Applicable Rules, including,
without limitation, parcel maps, tentative subdivision maps, and conditional use
permits. Upon approval of any of the Future Approvals, as they may be amended
from time to time, they shall become part of the Applicable Rules, and Developer
shall have a "vested right," as that term is defined under California law, in and to
such Future Approvals by virtue of this Agreement.
1e) "Public Improvements" means those public improvements
contemplated by the Project Approvals.
3. Interest of Developer. The Developer represents to the City that, as of
the Effective Date, it either owns or is contractually entitled to acquire all of the
Site subject to encumbrances, easements, covenants, conditions, restrictions, and
other matters of record.
' 4. Binding Effect. This Agreement, and all of the terms and conditions of
R:VrrAFF FTWRlBMT.OT WIN m 3
this Agreement shall run with the land comprising the Site and shall be binding
upon and inure to the benefit of the parties and their respective assigns, heirs, or
other successors in interest.
5. Negation of Agency. The parties acknowledge that, in entering into
and performing under this Agreement, each is acting as an independent entity and
not as an agent of the other in any respect. Nothing contained herein or in any
document executed in connection herewith shall be construed as making the City
and Developer joint venturers, partners or employer/employee,
6. Development of the Property. The following specific restrictions shall
govern the use and development of the Project and the Site:
(a) Permitted Uses The Site may be developed and used for the
development of the Project in accordance with the terms of the Project Approvals
and the Applicable Rules.
(b) Devel gment Standards All design and development standards
applicable to the development of the Site shall be in accordance with the
Applicable Rules.
(c) Density and Intensity of Use The density and intensity of use
shall be in accordance with the Applicable Rules.
(d) Maximum Height and Size of project Buildings The maximum
height and size of the Project buildings shall be in accordance with the Applicable
Rules.
(e) Reservation or Dedication of Land for Public Purposes The
reservation or dedication of land for public purposes shall be in accordance with
the Applicable Rules.
7. Acknowledgments. Agreements and Assurances on the Part of the
Developer. The parties acknowledge and agree that Developer's faithful
performance in developing the Project on the Site and in constructing and installing
public improvements and complying with the Applicable Rules will fulfill substantial
public needs. The City acknowledges and agrees that there is good and valuable
consideration to the City resulting from Developer's assurances and faithful
performance thereof and that same is in balance with the benefits conferred by the
City of the Project. The parties further acknowledge and agree that the exchanged
consideration hereunder is fair, just and reasonable. Developer acknowledges that
the consideration is reasonably related to the type and extent of the impacts of the
Project on the community and the Site, and further acknowledges that said
consideration is necessary to mitigate the direct and indirect impacts cause by the
development of the Project. in consideration of the foregoing and the City's
assurance set out in Section S, Developer hereby agrees to use its reasonable best
efforts, in accordance with Its own reasonable business judgement, taking into
' consideration market conditions, financing and other economic factors, to develop
RWBTAFFFWTMOMBWW.OT On/OO kb 4
the Project on the Site in accordance with the terms and conditions of this
' Agreement and the Applicable Rubs. Notwithstanding any other provision of this
Agreement, it is understood and agreed that the obligations of Developer under this
Agreement shall not be personal recourse obligations of Developer, but shall be
conditions which, if not satisfied by Developer, its successors or assigns, will give
the City the right to seek a modification or termination of this Agreement in
accordance with the procedures described in Sections 10 through 12 of this
Agreement.
g. Acknowledgements, Agreements and Assurances on the Part of the
City. In order to effectuate the provisions of this Agreement, and in consideration
for the Developer to obligate itself to carry out the covenants and conditions set
forth in the preceding Section 7 of this Agreement, the City hereby agrees and
assures Developer that Developer will be permitted to cant' out and complete the
development of the Project within the Site, subject to the terms and conditions of
this Agreement, the conditions of the Project Approvals and the Applicable rules.
Therefore, the City hereby agrees and acknowledges that:
(a) Entitlement to Develop. The Developer is hereby granted the
vested right to develop the Project on the Site to the extent and in the manner
provided in this Agreement, subject to the conditions of the Project Approvals, the
Applicable Rules and the Future Approvals.
(b) Conflictina Enactments. Any change in the Applicable Rules,
' including, without limitation, any change in any applicable general, area or specific
plan, zoning, subdivision or building regulation, adopted or becoming effective after
the Effective Date, including, without limitation, any such change by means of an
ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted
for any reason whatsoever and adopted by the Council, the Planning Commission
or any other board, commission or department of City, or any officer or employee
thereof, or by the electorate, as the case may be, which would, absent this
Agreement, otherwise be applicable to the Site and which would conflict in any
way with or be more. restrictive than the Applicable Rules ('Subsequent Rules'),
shall not be applied by City to the Site. Developer may give City written notice of
its election to have any Subsequent Rule applied to the Property, in which case
such Subsequent Rule shall be deemed to be an Applicable Rule.
(c) Permitted Conditions. Provided Developer's applications for any
Future Approvals are consistent with this Agreement and the Applicable Rules, City
shall grant the Future Approvals in accordance with the Applicable Rules and
authorize development of the Property for the uses and to the density of the
Project described herein. City shall have the right to impose reasonable conditions
in connection with Future Approvals and, in approving tentative subdivision maps,
impose dedications for rights of way or easements for public access, utilities,
water, sewers, and drainage necessary for the Project; provided, however, such
conditions and dedications shall not be inconsistent with the Applicable Rules or
Project Approvals, nor inconsistent with the development of the Project as
' contemplated by this Agreement. Developer may protest any conditions,
R-.WrAFFipRAOREMNT.OT Gf7M m 5
dedications or fees while continuing to develop the Site; such a protest by
' — Developer shall not delay or stop the issuance of building permits or certificates of
occupancy.
(d) Term of Maple) and Other Prosect Aoorovals. Pursuant to
California Govemment Code Sections 66452.6(1) and 65863.9, the term of any
subdivision or parcel map that may be processed on all or any portion of the Site
and the term of each of the Project Approvals, including the Tentative Map and any
Future Approvals shall be extended for a period of time through the scheduled
termination date of this Agreement as set forth in Section 14 below.
(e) Timino of Development Because the California Supreme Court
held in Pardee Construction Co. V. City of Camarillo, 37 Cal.3d 465 (1984), that
failure of the parties to provide for the timing of development resulted in a later
adopted initiative restricting the timing of development to prevail over the parties'
agreement, It is the Developer's and City's intent to cure that deficiency by
acknowledging and providing that Developer shall have the right (without
obligation) to develop the Site in such order and at such rate and at such time as
Developer deems appropriate within the exercise of its subjective business
judgement.
(f) Moratorium. No City -imposed moratorium or other limitation ..
(whether relating to the rate, timing or sequencing of the development or
construction of all or any part of the Site, whether imposed by ordinance, initiative,
resolution, policy, order or otherwise, and whether enacted by the Council, an
' agency of City, the electorate, or otherwise) affecting parcel or subdivision maps
(whether tentative, vesting tentative or final), building permits, occupancy
certificates or other entitlements to use or service (including, without limitation,
water and sewer) approved, issued or granted within City, or portions of City, shall
apply to the Site to the extent such moratorium or other limitation is in conflict
with this Agreement; provided, however, the provisions of this Section shall not
affect City's compliance with moratoria or other limitation mandated by other
governmental agencies or court -imposed moratoria or other limitation.
(g) Permitted Fees. Except as otherwise provided in this
Agreement, and specifically excluding fees set by entitles not controlled by City
that are collected by City, City shall only charge and impose those fees and
exactions, including, without limitation, dedications and any other fees or taxes
(including excise, construction or any other taxes) relating to development or the
privilege of developing, which are in effect on a City-wide basis as of the Effective
Date. This Section shall not be construed to limit the authority of City to charge
application, processing, and permit fees for land use approvals, building permits,
and other similar permits and entitlements, which fees are designed to reimburse
City's expenses attributable to such application, processing and permitting and are
in force and effect on a City-wide basis at such time as sold approvals, permits, or
entitlements are granted by City.
9. Cooperation and Implementation.
The City agrees that it will
'
RASTAFFFMAoREEWrr.or erne Mb
6
cooperate with Developer to the fullest extent reasonable and feasible to implement
' this Agreement. Upon satisfactory performance by Developer of all required
preliminary conditions, actions and payments, the City will commence and in a
timely manner proceed to complete all steps necessary for the implementation of
this Agreement and the development of the Project or Site In accordance with the
terms of this Agreement. Developer shall, in a timely manner, provide the City will
all documents, plans, and other information necessary for the City to cant' out its
obligations. Specifically:
(a) Further Assurances: Covenant to Sign Documents. Each party
shall take all actions and do all things, and execute, with acknowledgment or
affidavit, if required, any and all documents and writings, that may be necessary or
proper to achieve the purposes and objectives of this Agreement.
(b) Reimbursement and Apportionment. Nothing in this Agreement
precludes City and Developer from entering into any reimbursement agreements for
the portion (if any) of the cost of any dedications, public facilities and/or
infrastructure that City may require as conditions of the Project Approvals or the
Future Approvals, to the extent that they are in excess of those reasonably
necessary to mitigate the impacts of the Project
(c) Processing. Upon satisfactory completion by Developer of all . .
required preliminary actions and payments of appropriate processing fees, if any,
City shall, subject to all legal requirements, promptly initiate diligently process,
complete at the earliest possible time all required steps, and expeditiously grant any
approvals and permits necessary for the development by Developer of the Property
in accordance with this Agreement, including, but not limited to, the following:
(1) the processing of applications for and issuing of all
discretionary approvals requiring the exercise of judgement and deliberation by
City, including without limitation, the Future Approvals;
(2) the holding of any required public hearings;
(3) the processing of applications for and issuing of all
ministerial approvals requiring the determination of conformance with the
Applicable Rules, including, without limitation, site plans, development plans, land
use plans, grading plans, improvement plans, building plans and specifications, and
ministerial issuance of one or more final maps, zoning clearances, grading permits,
improvement permits, wall permits, building permits, lot line adjustments,
encroachment permits, conditional and temporary use permits, certificates of use
and occupancy and approvals and entitlements and related matters as necessary
for the completion of the development of the Property ('Ministerial Approvals").
(d) Processing During Third Party Litigation. The filing of any third
party lawsuit(s) against City or Developer relating to this Agreement or to other
development issues affecting the Property shall not delay or stop the development,
' processing or construction of the Project, approval of the Future Approvals, or
FLWAFFWr%AQFW1WT.OT SM95 1b 7
issuance of Ministerial Approvals, unless the third party obtains a court order
preventing the activity. City shall not stipulate to the issuance of any such order.
(e) State. Federal or Case Law. Where any state, federal or case
law allows City to exercise any discretion or take any act with respect to that law,
City shall, in an expeditious and timely manner, at the earliest possible time, (a)
exercise its discretion in such a way as to be consistent with, and cant' out the
terms of, this Agreement and (b) take such other actions as may be necessary to
carry out in good faith the terms of this Agreement.
(f) Other Governmefftel Bodies, to the extent that City, its Council,
Planning Commission or any other City agency constitutes and site as any other
board or agency, it shall not take any action that conflicts with City's obligations
under this Agreement.
(g) Defense of Agreement. City shall take all actions which are
necessary or advisable to uphold the validity and enforceability of this Agreement,
subject to the indemnification provisions of this subparagraph. if this Agreement is
adjudicated or determined to be invalid or unenforceable, City agrees, subject to all
legal requirements, to consider modifications to this Agreement to render it valid
and enforceable to the extent permitted by applicable law. The Developer shall
indemnify, protect, defend, and hold harmless, the City and any agency or
instrumentality thereof, and/or any of its officers, employees and agents from any
and all claims, actions, or proceedings against the City, or any agency or
' instrumentality thereof, or any of its officers, employees and agents, to attack, set
aside, void, annul or seek monetary damages resulting from the approval of the
City, or any agency or instrumentality thereof, advisory agency, appeal board or
legislative body including actions approved by the voters of the City, concerning
this Agreement which action is brought within the appropriate statute of limitation
period and Public Resources code, Division 13, Chapter 4 (Section 21000 at seq.,
including but not by way of limitations Section 21152 and 21167). City shall
promptly notify the Developer of any claim, action, or proceeding brought within
this time period. The City shall further cooperate fully in the defense of the action.
Should the City fail to either promptly notify or cooperate fully, Developer shall not
thereafter be responsible to indemnify, defend, protect, or hold harmless the City,
any agency or instrumentality thereof or any of its officers, employees, or agents.
(a) Periodic Review, The Director of Planning of the City shall
review this Agreement annually, on or before the anniversary of the Effective Date,
in accordance with the procedure and standards set forth in this Agreement and
the Temecula Municipal Code in order to ascertain compliance by the Developer
with the terms of this Agreement.
(b) Procedure. During a periodic review, the Developer shall be
required to demonstrate good faith compliance with the terns of this Agreement.
' The burden of proof on this issue shall be on the Developer. The parties
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acknowledge that failure by the Developer to demonstrate good faith compliance
shall constitute grounds for termination or modification of this Agreement in
' accordance with Government Code 11165865.1.
(c) Cure of Default. If, on the basis of review of this Agreement,
the Director of Planning concludes that the Developer has not complied in good
faith with the terms of this Agreement, then the Director of Planning may issue a
written 'Notice of Non-compliance' specifying the ground therefor and all facts
demonstrating such non-compliance. The Developer's failure to cure or commence
and diligently pursue the cure of the alleged non-compliance within thirty (30) days
after receipt of said notice, shall constitute a default under this Agreement, subject
to possible termination of the Agreement as provided below. Upon completion of a
periodic review, the Director of Planning shall submit a report to the City Council
setting forth the evidence concerning good faith compliance by the Developer with
the terms of this Agreement and the recommended finding on that issue.
11. Proceedinas Ligon Termination. If the City determines to proceed with
termination of this Agreement, the City shall give written notice to the Developer of
its intention to terminate this Agreement and comply with the notice and public
hearing requirements of Government Code § § 65868 and 65867. At the time and
place set for the hearing on termination, the Developer shall be given an
opportunity to be heard. If the City Council finds, based upon substantial
evidence, that the Developer has not reasonably complied in good faith with the
terms or conditions of this Agreement, the City Council may modify or terminate
' this Agreement.
12. Modification. Amendment. or Cancellation. Subject to the notice and
hearing requirements of Section 65867 of the Government Code, this Agreement
may be modified or amended from time to time by mutual consent of the parties or
their successors in interest in accordance with the provisions of the Temecula
Municipal Code and Section 65868 of the Government Code.
13. Ooeretion Agreement. The provisions of this Agreement require a
close degree of cooperation between City and Developer and the refinements and
further development of the Project may demonstrate that clarifications are
appropriate with respect to the details of performance of City and Developer. If
and when, from time to time, during the term of this Agreement, City and
Developer agree that such clarifications are necessary or appropriate, they shall
effectuate such clarifications through operating memoranda approved by City and
Developer, which, after execution, shall be attached hereto, and may be further
clarified from time to time as necessary with future approval by City and
Developer. No such operating memoranda shall 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 clarification is of such a
character to constitute an amendment hereof pursuant to Section 12. The City —
Manager may execute any operating memoranda hereunder without Council action.
IR:WTAFAPTIAGFAZMW.OT WIN 6b 9
14. Terre of Agreement. This Agreement shall become operative and
commence upon the C-ifectivs Date, it shall remain in effect until (Term - to be 10
years] unless this Agreement is terminated, modified, or extended upon mutual
written consent of the parties hereto. Following the expiration of said term, this
Agreement shall be deemed terminated and of no further force and effect;
provided, such termination shall not automatically affect any right of the City or
Developer arising from City approvals on the Site prior to the expiration of the term
and arising from the duties of the parties as prescribed in this Agreement.
15. Legal Action. Any party may, in addition to any other rights or
remedies, institute legal action to cure, correct or remedy any default, enforce any
covenant or agreement herein, enjoin any threatened or attempted violation hereof,
or enforce by specific performance the obligations and rights of the parties hereto,
except as provided in this subparagraph. It is acknowledged by the parties that
City would not have entered into this Agreement if it were to be liable in damages
for a default under or with respect to this Agreement or the application thereof and
that Developer has adequate remedies other than damages to secure City's
compliance with City's obligations pursuant to this Agreement. City, and its
officers, employees and agents, shall not be liable in damages to Developer or to
any assignee, transferee of Owner, or any other person for its default under or with
respect to this Agreement, and Developer covenants not to sue for or claim any
damages for default of this Agreement by City.
Pursuant to Code of Civil Procedure Section 638, at sea., all legal
' actions shall be heard by a referee who shall be a retired judge from either the
Superior Court, the California Court of Appeal, the United States District Court or
the United States Court of Appeals, provided that the selected referee shall have
experience in resolving land use and real property disputes. Developer and City
shall agree upon a single referee who shall then try all issues, whether of fact or
law, and report a finding and judgement thereon and issue all legal and equitable
relief appropriate under the circumstances of the controversy before such referee.
If Developer and City are unable to agree on a party hereto, either party may seek
to have one appointed pursuant to 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 shall be considered a temporary judge appointed
pursuant to Article 6, Section 21 of the Califomia Constitution.
16. Administration of Agreement and Resolution of Disputes. All
decisions by the City staff concerning the interpretation and administration of this
Agreement and the Project which is the subject hereof are appealable to the City
Project which is the subject hereof are appealable to the City Council and all like
decisions of the City Council shall also be subject to judicial review pursuant to
Code of Civil Procedure Section 1094.5 or any other applicable provision of law or
equity. The resolution of disputes shall be conducted pursuant to the provisions of
Section 15 of this Agreement.
17. Transfers and Assianments.
MWAFFR AGrAMA--MOT 6/7196 m 10
(a) Bim, Developer shall have the right to sell, assign or
' transfer all or portions of the real property comprising the Properly to any person at
any time during the term of this Agreement.
(b) Liabilities Upon Transfer. Upon the delegation of all duties and
obligations and the sale, transfer or assignment of all or any portion of the
Property, Developer shall be released from its obligations under this Agreement
with respect to the Property, or pardon thereof, so transferred arising subsequent
to the effective date of such transfer If (1) Developer has provided to City ten days'
written notice of such transfer and (ii) the transferee has agreed in writing to be
subject to all of the provisions hereof applicable to the portion subject to all of the
provisions hereof applicable to the portion of the Property so transferred. Upon
any transfer of any portion of the Property and the express assumption for
Developer's obligations under this Agreement by such transferee, City agrees to
look solely to the transferee for compliance by such transferee with the provisions
of this Agreement as such provisions relate to the portion of the Property acquired
by such transferee. A default by any transferee shall only affect hat portion of the
Property owned by such transferee and shall not cancel or diminish in any way
Developer's rights hereunder with respect to any portion of the Property not owned
by such transferee. The transferee shall be responsible for the reporting and
annual review requirements relating to the portion of the Property owned by such,
transferee, and any amendment to this Agreement between City and a transferee
shall only affect the portion of the Property owned by such transferee.
' 18. Martaace Protection. The parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, at Developer's sole discretion,
form encumbering the Property or any portion thereof or any improvement thereon
by any mortgage, deed of trust or other security device securing financing with
respect to the Property. City acknowledges that the lander(s) providing such
financing may require certain Agreement interpretations and modifications and
agrees upon request, from time to time, to meet with Developer and
representatives of such lender(s) to negotiate in good faith any such request for
interpretation or modification. City will not unreasonable withhold its consent to
any such requested interpretation or modification provided such interpretation or
modification is consistent with the intent and purposes of this Agreement. Any
mortgagee of a mortgage or a beneficiary of a deed of trust ("Mortgagee") on the
Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage
or deed of trust on the Property made in good faith and for value.
(b) The Mortgagee of any mortgage or deed of trust encumbering
the Property, or any part thereof, who has submitted a request in writing to City in
the manner specified herein for giving notices, shall be entitled to receive written
notification from City of any default by Developer In the performance of
' Developer's obligations under this Agreement.
RAFrAFFIWiMO1R33Nr.Or erase m 11
(c) If City timely receives a request from a Mortgagee requesting a
copy of any notice of default given to Developer under the terms of this
' Agreement, City shall provide a copy of that notice to the Mortgagee within ten
days of sending the notice of default to Developer. The Mortgagee shall have the
right, but not the obligation, to cure the default during the remaining cure period
allowed such party under this Agreement.
Id) Any Mortgagee who comes into possession of the Property, or
any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed
in lieu of foreclosure, shall take the Property, or part thereof, subject to the terms
of this Agreement; provided, however, in no event shall such Mortgagee be liable
for any defaults or monetary obligations of Developer arising prior to acquisition of
title to the Property by such Mortgagee, except that any such Mortgagee or its
successors or assigns shall not be entitled to a building permit or occupancy
certificate until all delinquent and current fees and other monetary obligations due
under this Agreement for the Property, or portion thereof acquired by such
Mortgagee, have been paid to City.
19. NoLGBS. All notices under this Agreement shall be in writing and shall
be effective when personally delivered or upon receipt after deposit in the United
States mail as registered or certified mail, postage prepaid, return receipt
requested, to the following representatives of the parties at the addresses indicated
below:
' If to City: City of Temecula
Attention: City Manager
43174 Business Park Drive
Temecula, CA 92590-3606
With a Copy to: Peter M. Thorson, Esq.
Burke, Williams & Sorensen
611 West Sixth Street, 25th Floor
Los Angeles, CA 90017
If to Developer: Mr. Eugene S. Hancock, President
Hancock Development Company, Inc.
3183 Airway Avenue, Building E
Costs Mesa, CA 92626
Stevan J. Gromet, Esq.
Pinto, Gromet, Dubia & Worcester
Two Park Plaza, Suite 300
Irvine, CA 92714-8513
Mr. John F. Firestone
702 South Laudnda Avenue
' Orange, CA 92669
RATrAFFA MAaasOMrr.OT arms m 12
With a Copy to: Ronald I. Silverman, Esq.
Cox, Castle & Nicholson
' 2049 Century Park East, 28th Floor
Los Angeles, CA 90067-3284
Samuel C., Alhadeff, Esq.
Lorenz, Alhadeff, Cannon & Rose
27555 Ynez Road, Suite 203
Temecula, CA 92591-4677
20. Severability and Termination. If any provision of this Agreement is,
determined by a court of competent jurisdiction to be invalid or unenforceable, or if
any provision of this Agreement is superseded or rendered unenforceable according
to any law which becomes effective after the Effective Date, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of this
Agreement.
21. Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
22. Force Maleure. In the event of changed conditions, changes in local,_.
state or federal laws or regulations, floods, delays due to strikes, inability to obtain
materials, civil commotion, fire, acts of god, or other circumstances which
substantially interfere with carrying out the Project, as approved by the City, or
with the ability of either party to perform its obligations under this Agreement, and
which are not due to actions of Developer and are beyond its reasonable control,
the panties agree to bargain in good faith to modify such obligations to achieve the
goals and preserve the original intent of this Agreement.
23. Waiver. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized representative of the
party against whom enforcement of a waiver is sought.
24. Constructive Notice and Acceotance. Every person who, now or
hereafter, owns or acquires any right, title or interest in or to any portion of the
Site is, and shall be, conclusively deemed to have consented and agreed to every
provision contained herein, whether or not any reference to this Agreement is
contained in the instrument by which such person acquired an interest in the Site.
25. No Third Party Beneficiaries. This Agreement is made and entered
into for the sole protection and benefit of the parties, the City Council and their
successors and assigns. No other person shall have any right of action based upon
any provision of this Agreement.
26. Attorney's Fees. If either party commences any action for the
interpretation, enforcement, termination, cancellation or rescission of this
' Agreement, or for specific performance for the breach hereof, the prevailing party
RASTAccwrwoREOMMOT eniae Mb 13
shall be entitled to Its reasonable attorney's fees, litigation expenses and costs.
Attorney's fees under this Section shall include attomey's fees on any appeal as
' well as any attorney's fees incurred in any postjudgement proceedings to collect
or enforce the judgement.
27. Incorporation of Exhibits. The following Exhibit Is part of this
Agreement and each of which are Incorporated herein by this reference:
Exhibit No. A Legal Description of Site
28. Entire Agreement: Conflicts. This Agreement represents the entire
agreement of the parties. Should any or all of the provisions of this Agreement be
found to be in conflict with any other provision or provisions found In the Project
Approvals, Applicable Rules, or Subsequent Applicable Rules, then the provisions
of this Agreement shall prevail.
IN WITNESS WHEREOF, the Parties have each executed this Agreement of
the date first written above.
CITY OF TEMECULA
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Peter M. Thorson
City Attorney
HANCOCK DEVELOPMENT COMPANY INC.
By:
President
John F. Firestone
1 aWrAFFarvAaasawr.ar 617118 m 14
STATE OF CALIFORNIA )
) as.
' COUNTY OF 1
On , 19_ before me, the undersigned, a Notary Public in and
for said state, personally appeared and
, known to me to the persons who executed the within
instrument as Mayor and City Clerk, respectively, of the CITY OF TEMECULA, the
public agency therein named, and acknowledged to me that such Commission
executed the within instrument pursuant to Its bylaws or a resolution of its
members.
WITNESS my hand and official seal.
STATE OF CALIFORNIA
COUNTY OF
Name (typed or printed)
)
as.
On , 19_ before me, the undersigned, a Notary Public in and
for said state, personally appeared , known to me to be
President of and , known to me to be the Secretary
of the corporation that executed the within instrument, known to be to be the
persons who executed the within instrument of behalf of HANCOCK
DEVELOPMENT COMPANY, INC., the Corporation therein named, and
acknowledged to me.that such Corporation executed the within instrument
pursuant to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
IRASTAFFIFT%MREE NT.OT WIN Y6
Name (typed or printed)
15
STATE OF CALIFORNIA 1
1 as.
COUNTY OF 1
On , 19_ before me, the undersigned, a Notary Public in and
for said state, personally appeared , personally known to me
to be the person whose name is subscribed to the within Instrument, and
acknowledged to me that he/she executed the some.
WITNESS my hand and official seal.
(SEAL)
M%TAFFRPnVoVJMMrT.0T enne m
Notary Public in and for said State
Ell