HomeMy WebLinkAbout03_062 PC Resolution
PC RESOLUTION NO. 2003-062
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TEMECULA RECOMMENDING THAT THE
CITY COUNCIL APPROVE A NEGATIVE
DECLARATION FOR A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF TEMECULA AND NORTH
PLAZA, LLC REGARDING THE AUTO MALL
PROPERTIES, AND RECOMMENDING THAT THE CITY
COUNCIL APPROVE THE DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF TEMECULA
AND NORTH PLAZA, LLC REGARDING THE AUTO
MALL PROPERTIES (PLANNING APPLICATION NO.
PA03-0565)
THE PLANNING COMMISSION OF THE CITY OF TEMECULA DOES
HEREBY RESOLVE AS FOLLOWS:
Section 1. Procedural History. The Planning Commission of the City of
Temecula does hereby find, determine and declare that:
A. On December 18, 1990, the City Council approved Parcel Map No. 23496
for the subdivision of 42 acres of property for commercial purposes, which property is
generally located on the west side of Ynez Road, north of the Empire Creek Channel,
and south of the existing auto mall (the "Property"). Parcel Map No. 23496 was
subsequently recorded on December 21, 2003. The conditions of approval for Parcel
Map No. 23496 require the construction of certain on-site and off-site public
improvements on the Property. On August 13, 1996, North Plaza, LLC ("Owner")
entered into a revised Subdivision Improvement Agreement with the City and the City
accepted substitute surety bonds for the completion of the improvements.
B. In accordance with the procedures specified in City Resolution 91-52 and
the Development Code, Owner filed Planning Application No. 03-0565 with the City for
approval of a development agreement regarding the Property ("Development
Agreement").
C. Government Code Section 65864 authorizes the 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.
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D. On December 3, 2003, the Planning Commission held a duly noticed
public hearing to consider the Negative Declaration regarding the Development
Agreement and the proposed Development Agreement.
Section 2. Environmental Findinas. The Planning Commission makes the
following environmental findings and determinations in connection with the Project:
A. Pursuant to California Environmental Quality Act ("CEQA") and the City's
local CEQA Guidelines, City staff prepared an Initial Study of the potential environmental
effects of the approval of the Development Agreement (the "Projecf'). Based upon the
findings contained in that Study, City staff determined that there was no substantial
evidence that the Project could have a significant effect on the environment and a
Negative Declaration was prepared.
B. Thereafter, City staff provided public notice of the public comment period
and of the intent to adopt the Negative Declaration as required by law. The public
comment period commenced on November 20, 2003 and expired on December 16,
2003. Copies of the documents have been available for public review and inspection at
the offices of the Department of Community Development, located at City Hall, 43200
Business Park Drive, Temecula, California 92589.
C. The Planning Commission has reviewed the Negative Declaration and all
comments received prior to and at the December 3, 2003 public hearing regarding the
Negative Declaration. The Project and the Negative Declaration were considered at the
duly noticed public hearing scheduled for the Project.
D. The Planning Commission has reviewed the Negative Declaration and all
comments received regarding the Negative Declaration prior to and at the December 3,
2003 public hearing, and based on the whole record before it, finds that: (1) the Negative
Declaration was prepared in compliance with CEQA; (2) there is no substantial evidence
that the Project will have a significant effect on the environment; and (3) the Negative
Declaration reflects the independent judgment and analysis of the Planning Commission.
Section 3.
declares that:
Findinas. The Planning Commission further finds, determines and
A. 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, the City intends, by
way of the Development Agreement, to give assurance to the Owner that Owner can
proceed with the development of the Project for the Term of the Development
Agreement pursuant to the terms and conditions of the Development Agreement and in
accordance with the City's General Plan, ordinances, policies, rules and regulations, as
set forth in the Development Agreement. In reliance on the City's covenants in the
Development 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.
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B. The Development Agreement implements the goals and policies of the
City's General Plan, provides balanced and diversified land uses, and imposes
appropriate standards and requirements with respect to land development and usage in
order to maintain the overall quality of life and the environment within the City.
C. The City has studied and reviewed of the potential impacts of the Project
as well as the various potential benefits to the City by the development of the Project
and concludes that the Project is in the best interests of the City and is not detrimental to
the health, safety and general welfare of the City.
D. The Development Agreement is consistent with the City's General Plan,
and each Element thereof, and constitutes a present valid exercise of the City's police
power.
E. The Development Agreement is being entered into pursuant to and in
compliance with the requirements of Government Code Section 65867.
F.
All legal prerequisites to the adoption of this Resolution have occurred.
Section 4. Based on the findings set forth in Section 2 of this Resolution, the
Planning Commission hereby recommends that the City Council adopt the Negative
Declaration prepared for the Project.
Section 5. Based on the findings set forth in Section 3 of this Resolution, the
Planning Commission hereby recommends that the City Council approve the
Development Agreement substantially in the form contained in Attachment "A," attached
hereto and incorporated herein by this reference as though set forth in full.
Section 6. The Secretary of the Planning Commission shall cause this
Resolution City Clerk of the City of Temecula shall certify to the passage and adoption of
this Ordinance and shall cause the same to be published in the manner required by law.
PASSED, APPROVED AND ADOPTED this 3rd day of December 2003.
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Dennis Chinieaff, Chairperson
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STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
CITY OF TEMECULA
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I, Debbie Ubnoske, Secretary of the Temecula Planning Commission, do hereby
certify that the PC Resolution No. 2003-_was duly adopted by the Planning
Commission of the City of Temecula at a regular meeting thereof, held on the 3rd day of
December, 2003 by the following vote of the Commission:
AYES: 4 PLANNING COMMISSIONERS: Telesio, Guerriero, Ohlasso,
Matthewson
NOES: 0 PLANNING COMMISSIONERS: None
ABSENT: PLANNING COMMISSIONERS: Chiniaeff
ABSTAIN: 0 PLANNING COMMISSIONERS: None
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R:ID AlAuto MalilFinal PC Resolution.doc
ATTACHMENT A
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Temecula
43200 Business Park Drive
P.O. Box 9033
Temecula, California 92589-9033
Attn: City Clerk
Exempt from recording fees pursuant to Gov!. Code Section 27383
(Space above for recorder's use)
DEVELOPMENT AGREEMENT
AUTO MALL PROPERTIES
THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of
,2003 ("Agreement Date"), by and between NORTH PLAZA, LLC, a
California limited liability company (hereinafter "OWNER"), and the CITY OF TEMECULA, a
municipal corporation, organized and existing under the' íaws 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.
RECITALS
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized terms which are defined in
this Agreement. The parties intend to refer to those definitions in conjunction with the use
thereof in these Recitals.
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B. The Development Agreement Legislation authorizes the 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
development to the consumer; provide assurance to the applicants for development projects that
they may proceed with their projects in accordance with defined 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 CITY of Temecula,
the County of Riverside, State of California (the "Property"), as more particularly described in
Exhibit "A" attached hereto and made a part hereof. The Property is approximately forty-two
(42) acres. Exhibit A shows the current parcels on the Property as well as the proposed parcels
for the Property. 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.
D. On December 18, 1990, the CITY Council of the City of Temecula approved
Parcel Map No. 23496, which was recorded on December 21,1990. The conditions of approval
for Parcel Map 23496 require the construction of certain on-site and off-site public
improvements. On August 13, 1996, the OWNER entered into a revised Subdivision
Improvement Agreement and the City accepted substitute surety bonds for the completion of the
Improvements.
E ,OWNER has applied for, and the 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 the CITY, create a development project sensitive to human needs and values, facilitate
efficient traffic circulation, and provide for the development of the Property in accordance with
the best interests of the City.
F.
The following actions were taken with respect to this Agreement and the Project:
1. On , following a duly noticed and conducted public
hearing, the CITY Planning Commission recommended that the CITY Council approve this
Agreement; ,
2. 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;
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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 adopted the Ordinance, a copy of which
is on file in the City Clerk's Office at the CITY, and adopted the findings and conditions
pertaining thereto, including those relating to the environmental documentation for the Project.
G. 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. As part of the process
of granting this entitlement, the CITY Council of the CITY (hereinafter the "CITY Council") has
required the preparation of an environmental review and has approved the Negative Declaration
as regards the Development and has otherwise carried out all requirements of the California
Environmental Quality Act ("CEQA") of 1970, as amended.
H. In consideration of the public improvements and beneficial uses of the Property to
be provided by OWNER for the City and the Project and in order to strengthen the planning
process for this unique project and reduce the economic costs of development, by this
Agreement, the 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 conditions
of this Agreement and in accordance with the CITY'S General Plan, ordinances, policies, rules
and regulations as provided in this of this Agreement. In reliance on the 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.
I. 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 the 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
the CITY, (ii) this Agreement is in the best interests of and not detrimental to the public health,
safety and general welfare of the CITY and its residents; (iii) adopting this Agreement is
consistent with the 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 Government Code Section 65867 of the Development Agreement Legislation.
AGREEMENT
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Legislation, as it applies to the 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:
744368.8 November 21, 2003
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1. Definitions.
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The following words and phrases are used as defined terms throughout this Development
Agreement and each defined term shall have the meaning set forth below.
1.1. Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance No. 03-
- approving this Agreement.
1.2. CITY. The "CITY" means the City of Temecula, a California municipal
corporation, duly organized and existing under the Constitution and laws of the State of
California, and all of its officials, employees, agencies and departments.
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 this Agreement, 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.
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1.6. Effective Date. "Effective Date" means the date the Authorizing Ordinance
becomes effective.
1.7. Future Development Approvals. "Future Development Approvals" means those
entitlements and approvals contemplated, necessary, and requested by the CITY or OWNER to
cause development to occur upon the Property after the Effective Date.
1.8. Off-site Improvements. "Off-site Improvements" means the improvements set
forth on Exhibit E as more specifically described in Section 3.1.2.12 of this Agreement.
1.9.0n-site Improvements. "On-site Improvements" means physical infrastructure
improvements or facilities that are or will be located on the Property as described in Section
3.1.2.11 of this Agreement. Certain On-site Improvements may be specifically addressed in this
Agreement, which are identified on Exhibit C. All others will be dependent upon the
development of the Property and the requirements of Future Development Approvals.
1.10. OWNER. "OWNER" is initially NORTH PLAZA, ILC, a California limited
liability company, and all successors in interest, in whole or part, to this entity.
1.11. Street and Right-of-Wav Improvements. "Street and Right-of-Way
Improvements" shall mean, and include, but not limited to, all required pavement, base, curb,
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gutter, sidewalk, street lights, irrigation, landscaping, fire hydrants, utilities, and all other
routinely required improvements within public rights-of-way.
1.12. Transferee. The person to whom the OWNER sells, assigns or otherwise
transfers all or any portion of OWNER'S interests in the Property together with all its right, title
and interest in this Agreement, or the portion thereof which is subject to transferred portion of
the Property in accordance with Section 2.5 of this Agreement.
2. General Provisions.
2.1. Binding Covenants. The provisions of this Agreement to the extent permitted by
law, 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 that satisfies California Government Code Section 65865(b).
2.3. Term. This Agreement shall become effective on the Effective Date, and shall
have a term (the "Term") of ten (10) consecutive calendar years. The Term shall commence on
the Effective Date of this Agreement and shall terminate at 11 :59 p.m. of the day preceding the
tenth (10th) anniversary of the commencement of the Term, subject to specific extensions,
revisions, and termination provisions of this Agreement.
2.4. Termination. This Agreement may be terminated by either party upon notice to
the other upon the occurrence of any of the following events:
2.4.1
Agreement;
If termination occurs pursuant to any specific provision of this
2.4.2 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.
2.4.3 The lapse of the Term as set forth in Section 2.3.
2.4.4 The termination of this Agreement shall not affect any right or duty arising
independently from entitlements issued by the CITY or other land use approvals approved
prior to, concurrently or subsequent to the approval of this Agreement, except as may be
provided in this Agreement.
2.5.
Transfers and Assignments.
2.5.1.
OWNER shall not sell, assign or otherwise transfer all or any portion of
744368.8 November 21,2003
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its interests in the Property together with all its right, title and interest in this Agreement, or the
portion thereof which is subject to transferred portion of the Property (the "Transferred
Property"), to any person ("Transferee") during the Term of this Agreement unless the CITY has
approved the transfer prior to its completion. CITY shall not unreasonably withhold consent to
the transfer provided that: (1) The Transferee has specifically assumed in writing the
obligations, or a portion of the obligations of the Owner, to design, construct, install and finally
complete the On-Site and Off-Site Public Improvements for the Property; (2) the Transferee has
the experience and financial capacity to complete the On-Site and Off-Site Public Improvements,
or a portion thereof required by this Agreement and the Future Approvals; (3) the proposed
Transferee has duly approved and signed replacement Subdivision Agreements for the On-Site
and Off-Site Public Improvements; and (4) the proposed Transferee has obtained replacement
bonds, accepted by the CITY for the On-Site and Off-Site Public Improvements for which it will
be responsible. In the event of any sale, assignment, or other transfer pursuant to this Section
2.5, (i) OWNER shall notify the CITY within twenty (20) days prior to the transfer of the name
of the transferee, together with the corresponding entitlements being transferred to such
transferee and (ii) the agreement between OWNER and transferee pertaining to such transfer
shall provide that the transferee shall be liable for the performance of those obligations of
OWNER under this Agreement which relate to the Transferred Property, if any, or shall confirm
that the OWNER shall remain liable for the On-Site and Off-Site Improvements.
2.5.2. Rights and Duties of Successors and Assigns. Any, each and all and
assigns of OWNER shall have all of the same rights, benefits, duties and obligations of OWNER
under this Agreement.
2.6. Amendment of Development Agreement.
2.6.1. Initiation of Amendment. Any 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.
, 2.6.3. Consent. Except as 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 or'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 Plan and with respect
to those items covered in general terms under this Agreement. If and when the parties mutually
744368.8 Nov¡'mber 21. 2003
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find that changes, adjustments, or clarifications are appropriate to further the intended purposes
of this Agreement, and such are not inconsistent with the Development Plan they may, unless
otherwise required by law, effectuate such changes, adjustments, or clarifications without
amendment to this Agreement through one or more operating memoranda mutually approved by
the parties, which, after execution, shall be attached hereto as addenda and become a part hereof
and may be further changed and amended from time to time as necessary, with further approval
by the City Manager, or designee, 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 this Agreement, no such changes, adjustments,
or clarifications shall require prior notice or hearing, public or otherwise.
3. Development of the Property.
3.1.Development and Control of Development.
3.1.1. Development of the Property. While this Agreement is in effect,
OWNER shall have the vested right to develop the Property pursuant to and in accordance with
the Applicable Regulations pursuant to this Agreement, including, without limitation, specific
uses, densities, and types of development provided for in the Applicable Regulations, and the
CITY shall have the right to control the Development in accordance with the terms and
conditions of this Agreement and all Applicable Regulations. Except as otherwise specified in
this Agreement, the Applicable 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 Applicable Regulations. The regulations applicable to the development
of the Property shall consist of the following requirements ("Applicable Regulations"):
3.1.2.1 Parcels A, B.C, D, E, F. G, H and I. Proposed Parcels A, B,
C, D, E, F, G, H and I, as designated on Exhibit A to this Agreement as the "Proposed
Parcels," shall be developed for uses limited to the sale of new motor vehicles along with
the ancillary uses of (1) servicing and repair of motor vehicles and (2) sales of pre-owned
motor vehicles and motor vehicle parts. Notwithstanding the provisions of Chapter 17.08
of the Temecula Municipal Code, no other uses shall be allowed on Proposed Parcels A,
B, C, D, E, F, G, H and I, unless otherwise approved by this Agreement. In addition to
motor vehicle sales uses described in this sub paragraph, such parcels shall be subject to
the requirements for the Service Commercial Zone as set forth in Chapter 17.08 of the
Temecula Municipal Code as said Code exists on the date the application for approval of
a development on a parcel of the Property is deemed complete by the City.
3.1.2.1.1 Upon the effective date of this Agreement, new
motor vehicles may be stored on Proposed Parcels D and E and a portion of
Proposed Parcel A provided that: (1) the new motor vehicles stored there are for
ultimate sale by a new motor vehicle dealership located within the City of
Temecula, (2) all applicable permits are obtained, and (3) all applicable
744368.8 November 21,2003
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development standards of the City for vehicle parking areas are fulfilled. The
portion of Proposed Parcel A on which motor vehicles may be stored is that
portion which is used by the adjacent motor vehicle dealer existing on the
effecti ve date of this Agreement.
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3.1.2.2 Proposed Parcel J. K and L on Propertv. Proposed Parcel J
(shown on Exhibit A) shall only be developed for the uses allowed by the "Service
Commercial Zone," Those portions of the Proposed Parcels K and L laying south of the
proposed Rancho Way shall only be developed for uses allowed by the Community
Commercial zone. Each area shall be subject to the requirements of said zones as set
forth in Chapter 17.08 of the Temecula Municipal Code as said Code exists on the date
the application for approval of a development on a parcel of the Property is deemed
complete by the City.
3.1.2.3 Unifonn Building Codes. Development of the Property shall
be subject to such unifonn building codes and the fire codes as may be adopted by the
CITY pursuant to Chapter 15.04 and 15.16, in effect as of the date of the approval ofthe
building permit.
3.1.2.4 Parcel Map. Except as provided in this Agreement, OWNER
shall develop the Property in accordance with the requirements of Parcel Map No. 23496,
recorded in the Official Records of Riverside County on December 21, 1990.
3.1.2.5 General Development Regulations. Except as otherwise
specified in this Agreement the ordinances, 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 those ordinances rules, regulations and official
policies as they exist on the date the application for approval of a development on a
parcel of the Property is deemed complete by the City. OWNER acknowledges and
agrees that CITY may develop and implement specific design regulations for signage,
landscaping and other physical requirements unique to automobile dealerships which will
be applied to development on the Property.
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. 3.1.2.5 . Subsequent Approvals. In connection with any
subsequent approval or action which the CITY is permitted or has the right to make under
this Agreement relating to the Project, the CITY shall exercise its discretion or take action
in a manner which complies and is consistent with this Agreement and such other
standards, tenns and conditions contained in this Agreement.
3.1.2.7. Development Impact Pees. The presently adopted
Development Impact Pees ("DIP"), as defined in Chapter 15.04 of the Temecula
Municipal Code, and the rates of the DIP as set forth in Resolution No. -, shall be
the DIP to be imposed and the DIP rates to be imposed upon parcels within the Property
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744368.8 Novdmber 21, 2003
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which are developed for the sale of new vehicles for which a building permit is issued
prior to July 1, 2006. The DIF and the DIF rates shall apply only to the City's
development impact fees and not to the TUMF fees described in Section 3.1.2.80f this
Agreement, the proposed Multi-Species Habitat Conservation Fee, the K-Rat fees or to
any other development impact fees imposed by another governmental agency. Developer
shall be entitled to such credits as might be available pursuant to the terms of Chapter
15.04 or other provisions of this Agreement.
3.1.2.8. TUMF Fees. The presently adopted Transportation Uniform
Mitigation Fee, as defined in Chapter 15.08 of the Temecula Municipal Code shall be
imposed upon development within the Property at the rate in effect as of the date of
issuance of each building permit for the Property. Developer shall be entitled to such
credits as might be available pursuant to the terms of Chapter 15.08.
3.1.2.9. Future Development Fees. Any fees adopted by the CITY, as
defined in Government Code Section 66000(b), shall be applied to development on the
Property in such amount as is in effect at the time of issuance of building permits for the
property.
3.1.2.10. Future Development Approval FeeslProcessing and
Application. OWNER shall pay the application and processing fees customarily imposed
on the type of entitlement sought at the rate, and in the amount, imposed by CITY
pursuant to the fee schedule, resolution or ordinance in effect at the time the application is
deemed complete and accepted by CITY for action.
3.1.2.11. On-Site Public Improvements. OWNER shall, at its sole cost
and expense, design, construct, install, and finally complete the on-site public
improvements described on Exhibit C ("On-Site Public Improvements"). The design,
construction, installation and final completion of the on-site public improvements shall be
pursuant to the requirements set forth in the "CITY of Temecula Subdivision
Improvement Agreement (On-Site and Off-Site Improvements)" set forth in Exhibit D.
Except as otherwise provided in this Agreement, the On-Site Public Improvements shall
be completed within twelve (12) months following the Effective Date. North Plaza Drive
shall be completed prior to the issuance of the first Certificate of Occupancy for a
building on Proposed Parcels A, E, F, or G. Park Plaza Lane shall be completed prior to
the issuance of the first Certificate of Occupancy for a building on Proposed Parcels B, C,
or D. The City Manager may extend the time for completion of the On-Site Public
Improvements. Exhibit D sets forth the standard conditions and terms of the City's
Subdivision Improvement Agreement which are approved as part of this Development
Agreement. The parties agree negotiate in good faith estimated construction costs of the
On-Site Subdivision Improvements described in Exhibit C and the Off-Site Subdivision
Improvements described in Exhibit E. The City Council shall formally approve the
revised Subdivision Improvement Agreement (On-Site and Off-Site Improvements) with
the agreed upon cost estimates and accept the bonds for such improvements.
744368.8 November 21, 2003
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3.1.2.12. Off-Site Public Improvements. OWNER shall, at its sole cost
and expense, design, construct, install, and finally complete the off-site public
improvements described on Exhibit E ("Off-Site Public Improvements"). The design,
construction, installation and final completion of the off-site public improvements shall
be pursuant to the requirements set forth in the "CITY of Temecula Subdivision
Improvement Agreement (On-Site and Off-Site Improvements)" set forth in Exhibit D.
Except as otherwise provided in this paragraph, the Off-Site Public Improvements shall
be completed within twelve (12) months following the Effective Date. The traffic signal
at the intersection of Ynez Road and North Plaza Drive, adjacent to Proposed Parcel F, as
shown on Exhibit E, shall be constructed and installed prior to the first Certificate of
Occupancy for the Property, unless otherwise deferred in writing by the Director of Public
Works. The City shall contribute the sum of forty-five thousand dollars ($45,000.00)
for the construction of the signal adjacent to Proposed Parcel F. A building pennit for
Proposed Parcels J and K shall not be issued until such time as the raised landscaped
median for Ynez Road is completed and the right of way for the Rancho Way and the
Empire Creek Box Culvert is conveyed to the City. The City Manager may extend the
time for completion of the Off-Site Public Improvements. Exhibit D sets forth the
standard conditions and terms of the City's Subdivision Improvement Agreement which
are approved as part of this Development Agreement. The parties agree negotiate in good
faith estimated construction costs of the On-Site Subdivision Improvements described in
Exhibit C and the Off-Site Subdivision Improvements described in Exhibit E. The City
Council shall formally approve the revised Subdivision Improvement Agreement (On-
Site and Off-Site Improvements) with the agreed upon cost estimates and accept the
bonds for such improvements.
3.1.2.13. Tennination of Prior Subdivision Improvement Agreement.
That certain "CITY of Temecula Subdivision Improvement Agreement" between the
CITY of Temecula and North Plaza, liC," dated as of August 13, 1996, is hereby
tenninated upon the occurrence of all of the following conditions: (1) This Agreement
becomes effective on the Effective Date; (2) OWNER has duly executed the Subdivision
Improvement Agreement (On-Site and Off-Site Improvements) set forth on Exhibit F and
described in Sections 3.1.2.11 and 3.1.2.13 and City approves and executes said
agreement; and (3) the CITY has accepted the Subdivision Performance Bond and the
Labor and Materials Bond for the On-Site Public Improvements and the Off-Site Public
Improvements as required by the Subdivision Improvement Agreement (On-Site and Off-
SiteJmprovements). Upon the tennination of said "CITY of Temecula Subdivision
Improvement Agreement" between the CITY of Temecula and North Plaza, LLC," dated
as of August 13, 1996, the CITY Engineer shall release bond numbers 14841 89, 14841
90,1484191, and 1484192 issued by Insurance Company of the West.
3.1.2. Timing of Development. Except as set forth in Agreement,
regardless of any future enactment, by initiative, or otherwise, OWNER shall have the
discretion to develop the Property in one phase or in multiple phases at such times as
OWNER deems appropriate within the exercise of its subjective business judgment and
as the same is in accordance with the Development Plan. Specifically, the CITY agrees
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744368,8 November 21, 2003
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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'~pplication is made in accordance with this Agreement and the Existing
Regulations. The parties hereto expressly reject the holding of Pardee Construction
Companv v. CITY of Camarillo, 37 Cal.3d 465 (1984), as regards any authority
regulating the phasing of the Development and authorize the phasing of the construction
on the Property to be consistent with the Development Plan.
3.1.3. Entitlements, Permits and Approvals - Cooperation.
3.1.3.1. Further Mitigation. In connection with the
completion of the Project, OWNER shall be responsible for the satisfaction of any
mitigation measures that depend on, act upon, or relate to Future Development
Approvals.
3.1.3.2. Other Permits. The CITY further agrees to reasonably
cooperate with OWNER, at no cost to CITY, in securing any County, State and
Federal permits or authorizations which may be required in connection with
development contemplated by the Development Plan. This cooperation shall not
entail any economic contribution by the CITY.
3.2.
Reserved Authoritv.
3.2.1. 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, the 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 the 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 aftertaking into consideration all reasonable alternatives.
3.2.2. Regulation for Health and Safetv. Notwithstanding anything to
the contrary in this Agreement, the CITY shall have the right to apply the 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 the 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.
744368.8 November 21, 2003
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3.3. Vested Right. By entering into this Agreement and relying thereupon, OWNER is
obtaining the vested rights to proceed with the development of the Property in accordance with
the terms and conditions of this Agreement. By entering into this Agreement and relying
thereupon, the CITY is securing certain public benefits which enhance the public health, safety
and welfare, a partial listing of which benefits is set forth in Section 4.1. The CITY therefore
agrees to the following:
3.3.1. No Conflicting Enactments. Except as provided in Section 3.3 of
this Agreement, neither the CITY Council nor any other agency of the CITY shall enact a
rule,regulation, ordinance or other measure (collectively "law") applicable to the
Property which is inconsistent or in conflict with the terms of 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:
(i) Limits or reduces the density or intensity of the
Development as regulated by the Applicable Regulations or otherwise requires
any reduction or increase in the number, size or square footage of lot(s),
structures, buildings or other improvements, except as provided in Section 3.2; or
(ii) Applies to the Property, but is not uniformly applied by the
CITY to all substantially similar development within the CITY, except as
provided in Section 3.2.
3.3.2. Initiative Measures. It is the intent of OWNER and the 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 the CITY, or portions of the CITY,
shall apply to the Project to the extent such moratorium or other limitation would restrict
OWNER's right to develop the Property as provided by this Agreement in such order and
at such rate as OWNER deems appropriate as limited or regulated by this Agreement.
The 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.
3.3.3. Consistencv Between This Agreement and Current Laws. The
CITY represents that at the Effective Date there are no rules, regulations, ordinances,
policies or other measures of the CITY in force that would interfere with the
Development and use of all or any part of the Property according this Agreement and the
Development Plan.
744368.8 November 21, 2003
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4. Obligations of the Parties.
4.1. Obligation of CITY to Construct a portion of Empire Creek Improvements.
Except as otherwise provided in this section, CITY agrees to construct a box culvert for Empire
Creek and approach structure as specifically described on Exhibit G or as currently designed
and/or modified as part of the Improvement Plans for Parcel Map 23496 ("Empire Creek Box
Culvert"). CITY shall construct the Empire Creek Box Culvert only if it determines in its
reasonable discretion that the Empire Creek Box Culvert is necessary for the construction of the
extension of Rancho Way. If the CITY determines that it is necessary to construct the Empire
Creek Box Culvert, CITY shall construct the Empire Creek Box Culvert at such time as the
CITY may construct the Rancho Way extension. In the event the OWNER or its successor
develops Proposed Parcel L, OWNER or its successor shall construct, at its sole cost and
expense, all off-site public improvements as may be necessary for the development of Proposed
Parcel L, including the construction of the Empire Creek Box Culvert, whether or not the City
has constructed Rancho Way.
4.2. Lot Line Adjustment. OWNER shall diligently apply for and process a lot line
adjustment to the portion of the Property southerly of Rancho Way in substantial conformance
with the preliminary drawings set forth on Exhibit H. CITY agrees to expeditiously process the
lot line adjustment. Owner shall apply for the lot line adjustment within thirty (30) days from the
Effective Date of this Agreement. As part of the application for the lòt line adjustment, OWNER
shall include fully executed grant deeds as necessary to complete the lot line adjustment. City
shall diligently process and act upon the lot line adjustment. Upon approval of the lot line
adjustment, CITY shall record the lot line adjustment and applicable deeds in the Official
Records of Riverside County. OWNER acknowledges and agrees that City has the authority to
and may withhold grading permits or building permits or any other land use entitlements for the
property until such time as the lot line adjustment is recorded.
744368.8 November 21, 2003
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4.3
Dedications and Exactions.
.
4.3.1. Dedication for Rancho Wav. OWNER shall dedicate such land to the
CITY for road and public utility purposes for the extension of Rancho Way. The
preliminary description of the land needed for the Rancho Way Extension is set forth on
Exhibit H. Except as otherwise provided in this Agreement, OWNER shall convey the
right of way for Rancho Way to CITY within twelve (12) months of the effective date of
this Agreement. OWNER acknowledges and agrees that additional right of way may be
required and therefore agrees to dedicate such additional land as the CITY may require.
A building permit for Proposed Parcels H, I, J and K shall not be issued until such time as
the right of way for Rancho Way and the Empire Creek Box Culvert is conveyed to the
City.
4.3.2. Dedication for Empire Creek Box Culvert. OWNER shall dedicate
such land to the CITY as necessary for the construction of the Empire Creek Box Culvert.
The preliminary description of the land needed for the Empire Creek Box Culvert is set
forth on Exhibit G. Except as otherwise provided in this Agreement, OWNER shall
conv~y the right of way for the Empire Creek Box Culvert to CITY within twelve (12)
months of the effective date of this Agreement. OWNER acknowledges and agrees that
additi'onal right of way may be required and therefore agrees to dedicate such additional
land as the CITY may require.
4.3.3. Future Dedications. 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. Notwithstanding anything to the
contrary, the health, safety and general welfare based mitigation measures arising from
the future Development Approvals shall not be limited by this Agreement.
.
4.3.4 Liens. Encumbrances and Environmental Conditions. All real
property dedicated to the CITY pursuant to this Agreement shall be free and clear of any
and all matters of record (excepting all non delinquent taxes and assessments), including
but not limited to, deeds of trust, liens, or other encumbrances of record that would
prevent the CITY from using such dedicated facility for its intended use as identified
herein. Further the real property shall be warranted to be free of any known
environmental conditions that would prevent, restrict or cause CITY to fund hazardous
material/contamination/toxic remediation activities so as to allow the real property to be
used as intended by CITY. OWNER shall provide CITY copies of all reports,
investigations and analysis that document the environmental condition of the real
property.
4.3.5 DIP Credit for Median Construction. Provided OWNER completes the
construction of the full width medians on Ynez Road pursuant to Section 3.1.2.12 of this
Agreement, OWNER shall be entitled to a credit on the payment of its obligation to pay
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the Street System Component of the DIP pursuant to the provisions of Section 15.06.050
of the Temecula Municipal Code in the amount of fifty percent (50%) the actual cost of
constructing the full median.
4.3.6 DIP Credit for Traffic Signal. Provided OWNER completes the
construction of the Traffic Signal at the intersection of Rancho Way and Y nez Road
pursuant to Section 3.1.2.12 of this Agreement, OWNER shall be entitled to a credit on
the payment of the Traffic Signal System Component of the DIP pursuant to the
provisions of Section 15.06.050 of the Temecula Municipal Code up to one hundred
percent (100%) of the total cost of construction.
4.3.7. Environmental for Channel Improvements. The OWNER may, at his
sole expense, apply for and diligently pursue environmental clearances from all
applicable government agencies for the construction of the channel improvements from 1-
15 to Ynez Road pursuant to the City's preliminary alignment study for the Rancho Way
construction, dated , and with the plans approved by the City as part of
Parcel Map No. 23946 for the overall channel improvement as part of the off-site public
improvements described on Exhibit E ("Off-Site Public Improvements") and to be
designed and constructed pursuant to the "Subdivision Improvement Agreement (On-Site
and Off-Site Improvements)" set forth in Exhibit D.
5. Further Assurances to OWNER Regarding Exercise of Reserved Authoritv.
5.1. Adoption of General Plan and Granting of Other Project Approvals.In preparing
and adopting any general plan amendment, zoning district change and in granting the other
Project Approvals, the CITY reserves its right to and shall consider the health, safety and welfare
of the residents of the CITY.
5.2. Assurances to OWNER. The parties further acknowledge that the public benefits
to be provided by OWNER to the 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 the 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 the CITY shall not and the 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
744368.8 November 21, 2003
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pursuant to the Reserved Authority, OWNER shall bear the burden of proof in establishing that
such rule, regulation or policy is inconsistent with the Applicable Regulations and the 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 the CITY in violation of
this Agreement.
.
6. Indemnification.
6.1 Owner agrees to indemnify and hold harmless the CITY, the
Redevelopment Agency of the City of Temecula, their agents, officers, contractors,
attorneys, and employees ("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 the Indemnified Parties is
or are liable therefore as a direct or indirect result of the CITY's approval of this
Development Agreement.
6.2 Owner Agrees during the term of this Agreement, to indemnify 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. The
CITY shall retain settlement authority with respect to any matter provided that prior to
settling any such lawsuit or claim, OWNER shall provide the CITY with a minimum ten
(10) business days written notice of its intent to settle such lawsuit or claim. If the 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 the 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.
.
6.3 OWNER's duties under this Section 6.1 are solely subject to and
conditioned upon the Indemnified Parties written request to OWNER to indemnify the
Indemnified Parties. OWNER shall deposit the expected costs of defense with the CITY
within five (5) business days of notice from the CITY of the claim and shall add to the
deposit within five (5) business days from the request of CITY. Without in any way
limiting the provisions of this Section 6, the parties hereto agree that this Section 6 shall
be interpreted in accordance with the provisions of California Civil Code Section 2778 in
effecl'as of the Effective Date.
7. Relationship of Parties. The contractual relationship between the CITY and OWNER is such
that OWNER is an independent contractor and not the agent or employee of the CITY. The
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 development of the Property shall be construed as making the CITY and
OWNER joint ventures or partners.
8. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in
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744368.8 November 21, 2003
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whole or in part only by mutual consent of the parties in 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 the CITY's or OWNER's remedies as provided by
Section 10.
9. Periodic Review of Compliance with Agreement.
9.1. Periodic Review. The CITY and OWNER shall review this Agreement at least
once every l2-month period from the date this Agreement is executed. The 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.
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 the CITY, in the exercise of its
reasonable discretion, may require. If requested by OWNER, the CITY agrees to provide to
OWNER, a certificate that OWNER or a duly authorized transferee is in compliance with the
terms of this Agreement, provided OWNER reimburses the CITY for all reasonable and direct
costs and fees incurred by the 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 the CITY failure to conduct this annual review.
9.4. Initiation of Review bv 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 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 final decision by the 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 written
notice that the staff decision is final. The CITY Council shall render its decision to affirm,
reverse or modify the staff decision within thirty (30) days after the appeal was filed.
9.6. Availability of Documents. Ifrequested by OWNER, the CITY agrees to provide
to OWNER copies of any documents, reports or other items reviewed, accumulated or prepared
by or for the CITY in connection with any periodic compliance review by the CITY, provided
OWNER reimburses the CITY for all reasonable and direct costs and fees incurred by the CITY
744368.8 November 21, 2003
- 17-
with respect thereto. The CITY shall respond to OWNER's request on or before ten (10)
business days have elapsed from the CITY's receipt of such request.
.
10. Events of Default: Remedies and Termination. Unless amended as provided in Section
8, or modified or suspended pursuant to Government Code Section 65869.5, this Agreement is
enforceable by either party hereto.
10.1. Defaults by OWNER. If the 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, the 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 the 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'S remedies for OWNER'S breach shall be limited to those specified in Section 10.3.
10.2. Defaults by CITY. If OWNER determines on the basis of a preponderance of the
evidence that the CITY has not complied in good faith with the terms and conditions of this
Agreement, OWNER shall, by written notice to the CITY, specify the manner in which the CITY
has failed to so comply and state the steps the 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 the CITY has failed to so comply, the CITY does not commence all steps reasonably
necessary to bring itself into compliance as required and thereafter diligently pursue such steps to
completion, then the CITY shall be deemed to be in default under the terms of this Agreement.
OWNER'S remedies for CITY'S breach shall be limited to those specified in Section 10.3.
.
10.3. Specific Performance Remedy.
10.3.1 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 development of the Property 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, the CITY and OWNER agree that damages
would not be an adequate remedy if the 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. Moreover, the CITY would not have
consented to this Agreement if it were to be subject to damages for breach of this
Agreement. Therefore, OWNER specifically agrees that it has no authority under this
Agreement to seek monetary damages against the CITY for any breach of this Agreement
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744368.8 Nov~mber 21, 2003
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by the CITY, and agrees not to seek monetary damages against the CITY for breach of
this Agreement.
10.3.2 The CITY and OWNER further acknowledge that, if OWNER fails to
carry out its obligations under this Agreement, the CITY shall have the right to refuse to
issue any permits or other approvals which OWNER would otherwise have been entitled
to pursuant to this Agreement. Therefore, the CITY's remedy of denying issuance of
permits or terminating this Agreement shall be sufficient in most circumstances if
OWNER fails to carry out its obligations hereunder. Notwithstanding the foregoing, if
the 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, the CITY shall be entitled to
specific performance for the sole purpose of causing OWNER to satisfy such condition.
The CITY's right to specific performance shall be limited to those circumstances set forth
above, and the 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, and except
as provided in Section 10.3, OWNER or the 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 Riverside County Superior Court pursuant to the reference procedures of the California
Code of Civil Procedure Sections 638, et seQ. OWNER and the 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 the 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 borne 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
744368.8 November 21, 2003
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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 the Estoppel 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.
10.6 Termination for Failure to Develop. Notwithstanding the provision of this
Section 10, in the event that on March 31, 2004, at least twenty (20) acres of the Property have
not been conveyed in a bona fide transfer to a legal entity or entities, other than an entity or
entities affiliated with the OWNER, for the development of an new vehicle sales facility on said
acreage, the City may, in its sole and absolute discretion, without finding any breach of the
Agreement, elect to terminate the executory provisions of this Agreement on twenty (20)
calendar days notice to OWNER.
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 Majeure. 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, intergalactic invasion,
strikes and other labor difficulties beyond OWNER's control, government regulations (including,
without limitation, state and federal environmental and natural resource regulations applied to the
Property), orjudicial decisions directly applicable to the Property.
11.4. Extensions. The Term of this Agreement and the time for performance by
OWNER or the CITY of any of its obligations hereunder 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 provided that OWNER or CITY notifies the other of an event of force majeure within
thirty (30) days of the commencement of the condition and the allowed delay is equal to the time
of the event justifying delay. 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 Agreement or having the actual effect of delaying implementation of the
development of the Property is pending, including litigation pending on the
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744368.8 Nove;"ber 2t, 2003
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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 ollÙssions of
the CITY or any other governmental agency or public utility and beyond the reasonable control
of OWNER except those related to the normal and customary processing of Future Development
Approvals.
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 the CITY shall be addressed as follows:
CITY of Temecula
43200 Business Park Drive
Post Office Box 9033
Temecula, CA 92589-9033
Attention: CITY Planner
With a copy to:
Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071-1469
Attention: Peter M. Thorson;City Attorney
744368.8 November 21, 2003
-21-
Notices required to be given to OWNER shall be addressed as follows:
.
North Plaza LLC
Robert R. Chambers, Manager
29400 Rancho California Road
Temecula, Ca. 92591
With a copy to:
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. Attornevs' 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 lOA above as an item of damage
and/or recoverable costs.
.
14. Recording. This Agreement and any amendment or cancellation hereto shall be recorded,
at no cost to the 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 the 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 the CITY hereby agree that this
Agreement shall not prevent or linUt 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. The CITY acknowledges
that any Lender (as hereinafter defined) may require certain interpretations of or modifications to
the Agreement or the project and the 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. The 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
.
744368.8 Nov';mber 21, 2003
- 22-
.
.
.
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 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. Severabilitv 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 3.3.2 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.
744368.8 November 21, 2003
- 23-
18.1. Intemretation 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 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 Liabilitv. 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 the
CITY, arising by reason of such breach shall be applicable solely to the OWNER that committed
the breach. However, the 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. Recitals. All Recitals set forth herein are incorporated in this Agreement as
though fully set forth herein.
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 parol evidence of any prior
or other agreement shall be permitted to contradict or vary the terms hereof.
19. Not for Benefit of Third Parties. This Agreement and all provisions hereof are for the
exclusive benefit of the CITY and OWNER and its Development Transferees and shall not be
construed to þenefit or be enforceable by any third party.
20. Exhibits. The following Exhibits are attached to this Agreement and incorporated
herein as though set forth in full:
Exhibit A
Exhibit B
Exhibit C
Property Description and Designation of Parcels
[Intentionally Omitted]
On-Site Public Improvements
.
744368,8 November 21, 2003
- 24-
.
.
.
Exhibit D
Improvements)
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Subdivision Improvement Agreement (On-Site and Off-Site
Off-Site Public Improvements
[Intentionally Omitted]
Description of Empire Creek Box Culvert
Description of Proposed Lot Line Adjustment
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year dated below.
ATTEST:
"CITY"
CITY OF TEMECULA, a municipal corporation
Jeffrey Stone
Mayor
Susan Jones, CMC
CITY Clerk
[Signatures continue]
744368.8 November 21, 2003
- 25-
APPROVED AS TO FORM:
.
Peter M. Thorson
CITY Attorney
"OWNER"
NORTH PLAZA, LLC, a California limited
liability company
By:
Name: Robert R. Chambers
Title: Manager
.
.
744368.8 Novetnber 2t, 2003
-26 -
.
.
.
State of California
)
) ss
)
County of Riverside
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/shelthey executed the same in
hislher/their authorized capacity(ies), and that by hislherltheir 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
State of California
)
) ss
)
County of Riverside
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
hislher/their authorized capacity(ies), and that by hislher/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
744368.8 November 21,2003
-27 -
.
EXHIBIT "A"
(Legal Description and Depiction of Property and Proposed Parcels Thereon)
.
.
744368.8 November 21,2003
-28 -
.
.
.
744368.8 November 21, 2003
EXHIBIT "B"
[Intentionally Omitted]
-29-
.
EXHIBIT "C"
ON-SITE PUBUC IMPROVEMENTS
1. Complete installation of public improvements for North Plaza Drive including
curb and gutter, sidewalk, sewer, water, stonn drains, streetlights and underground public
utilities.
2. Complete installation of public improvements for Park Plaza Lane including curb
and gutter, sidewalk, sewer, water, stonn drains, streetlights and underground public
utilities.
3. Redesign the alignment of Park Plaza Lane to connect to the new Rancho Way
and design and construct public improvements to support that redesign. Prepare the
necessary right-of-way documents to cause the dedication of Park Plaza Lane and Rancho
Way.
4. Design and construct public improvements for the intersection of Rancho Way
and Y nez Road to meet the standards of the department of Public Works. Prepare the
necessary right-of-way documents including slope easements to cause the dedication of
Rancho Way from Interstate 15 to Ynez Road. Prepare the necessary right-of-way
documents to cause the vacation of the redesigned portion of Park Plaza Lane connection
to Ynez Road.
.
5. Prepare the necessary right-of-way documents to cause the dedication of a stonn
drain easement for Empire Creek to be realigned and contained in order to accommodate
the future construction of Rancho Way.
.
744368.8 November 21, 2003
- 30-
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EXHffiIT "D"
Subdivision Improvement Agreement (On-Site and Off-Site Improvements)
[City's Standard Subdivision Improvement Agreement]
.
.
744368.8 November 21, 2003
- 31-
.
.
.
EXIDBIT "E"
OFF-SITE PUBLIC IMPROVEMENTS
I. Design and construct a Traffic Signal at the intersection of North Plaza Drive and
Y nez Road to meet the standards of the Department of Public Works
2. Design and construct a Traffic Signal at the intersection of Rancho Way and Y nez
Road to meet the standards of the Department of Public Works
3. Design and construct a raised landscaped median on Ynez Road from North Plaza
Drive to the Empire Creek crossing to meet the standards of the Department of Public
Works and Temecula Community Services District
744368.8 November 21, 2003
- 32-
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.
EXHIBIT F
[Intentionally Omitted]
.
.
33
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Exhibit G
Description of Empire Creek Box Culvert
.
.
34
.
Exhibit H
Description of Proposed Lot Line Adjustment
.
.
35
"'-- L.LA. NO.1
'" "'-- PARCELS 4, 5, 6 AND 10 TO PARCELS E, F, G AND H
'- L.L.A. NO.2
~PARCELS H, 7, 8, AND 14 TO H, I, J AND PORTION PARCEL .14
LEGEND
l.lA LOT UNE AOJUST!J£NT
!'OR. POfITION
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PUBllC RIGHT-OF-WAY
.O.c. FUTURE CfRTlFlCAT£ OF COUPlWiC£
HT£R CflY ACOUISITJON
.
.
AREAS (PROPOSED PARCELS)
PARCEL A 6.24 AC 271,600 SF
PARCEL B 2.59 AC 112,106 SF
PARCEL C 4.50 AC 195,907 SF
PARCEL 0 4.17 AC 181,676 SF
PARCEL E 4.73 AC 206,143 SF
PARCEL F 1.87 AC 81,565 SF
PARCEL C 1.83 AC 79,637 SF
PARCEL H 1.16 AC 76,844 SF
PARCEL I 1.66 AC 72,309 SF
PARCEL J 1.99 AC 86,143 SF
PARCEL K 0.96 AC 42,038 SF
PARK PLAZA LANE-TO BE DEDICATED 36,632 SF
RANCHO WAY-TO BE DEDICATED 35,415 SF
RANCHO WAY-FUTURE 55,026 SF
SLOPE 36,323 SF
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