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HomeMy WebLinkAbout06-068 CC Resolution I I I RESOLUTION NO. 06-68 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA APPROVING AGREEMENTS PURSUANT TO GOVERNMENT CODE SECTION 66462.5 WITH ASHBY USA LLC AND SERAPHINA DEVELOPMENT LLC FOR THE ACQUISITION OF PUBLIC RIGHTS OF WAY IN CONNECTION WITH PUBLIC IMPROVEMENTS TO NICOLAS ROAD THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City council of the City of T emecula hereby approves those two certain agreements entitled (1) "Agreement Between the City of Temecula and Ashby USA LLC for the Acquisition of Certain Property for Public Rights of Way in connection with the Improvements to Nicolas Road" and (2) "Agreement Between the City of Temecula and Seraphina Development LLC for the Acquisition of Certain Property for Public Rights of Way in connection with the Improvements to Nicolas Road" with such changes in each document as many be mutually agreed upon by the parties and the City Manager as are in substantial conformance with the form of such agreement as attached hereto. The Mayor is hereby authorized to execute said agreements, including related exhibits and attachments on behalf of the City. Section 2. The City Manager (or his designee) is hereby authorized, on behalf of the City, to take all actions necessary and appropriate to carry out and implement the Agreements and to administer the City's obligations, responsibilities, and duties to be performed under the Agreements. Section 3. The City Clerk shall certify the adoption of this Resolution. R:/Resos 2006lResos 06-68 I I I PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 8th day of August, 2006. ATTEST: [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) GGl Ron Roberts, Mayor I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 06-68 was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 8th day of August, 2006, by the following vote: AYES: 4 COUNCIL MEMBERS: NOES: 0 COUNCIL MEMBERS: ABSENT: 1 COUNCIL MEMBERS: ABSTAIN: 0 COUNCIL MEMBERS: R:/Resos 2006lResos 06-68 Comerchero, Edwards, Naggar, Washington None Roberts None . Jones, MMC City Clerk 2 I Agreement with Ashby USA LLC I I I AGREEMENT BETWEEN THE CITY OF TEMECULA AND ASHBY USA, LLC FOR THE ACQUISITION OF CERTAIN PROPERTY FOR PUBLIC RIGHTS OF WAY IN CONNECTION WITH THE IMPROVEMENTS TO NICOLAS ROAD TIllS AGREEMENT ("Agreement') is made and entered into as of August 8, 2006 by and between the CITY OF TEMECULA, a general law city in the State of California ("City"), and ASHBY USA, LLC, a California limited liability company ("Developer"). In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto agree as follows: I. 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: I a. On December 17, 2002, the City ofTemecula approved a Development Agreement between the City and Developer which agreement was recorded in the Official Records of Riverside County as Document No. 2003- 018567 on January 9,2003 ("Development Agreement"). b. On November 26,2002, the City of Temecula approved the Roripaugh Ranch Specific Plan (SP II) which provides a specific plan for 804.7 acres consisting of the development of2,015 dwelling units, 110,00 square feetaf neighborhood commercial retail space, a 12-acre elementary school site and a 20- acre middle school site, a 19.7-acre sports park, a 4.8-acre neighborhood park, a fire station site, and 202.7 acres of open space, flood control improvements to Santa Gertrudes Creek and Long Valley Wash, and on-site and off-site public infrastructure improvements ("Project"). c. On November 26,2003, the City ofTemecula approved Tentative Tract Map No. 29353 within the City ofTemecula ("Tentative Tract Map") along with conditions of approval for the map. The Tentative Tract Map is valid for the duration of the Development Agreement. d. Developer is the owner of the land included within the Deyelopment Agreementand Tentative Tract Map except for certain parcels which have been sold to merchant builders. Under the Development Agreement, the Developer is responsible for the. construction and installation of the on-site and off-site public improvements required for the Project. e. Pursuant to the Development Agreement and the Tentative Tract Map, Developer is obligated to improve Nicolas Road from the western Project boundary to 450 feet east of the existing Nicolas Road/Calle Girasol. I 11086/0004/904824.1 August 8, 2006 1 I intersection. Developer's obligation with respect to this portion of Nicolas Road is described in Attachment 5, ON-SITE AND OFF-SITE IMPROVEMENTS, page 47 of the Development Agreement which requires the Developer to construct the following: "2. Nicolas Road - Construct 40' width improvements from 450 feet east of the existing Nicolas Road/Calle Oirasol intersection to Liefer Road including the full width bridge structure over Santa Gertrudis Creek. "3. Calle Girasol and Nicolas Road/Calle Girasol intersection - Realign existing Calle Oirasol to its ultimate intersection with Nicolas Road including right-of- way acquisition." Condition No. 76, Specific Plan Phase 1, b.i. and b.iii. of the Tentative Tract Map also requires that the Developer: I "i. Improve Nicolas Road from the western project boundary to 450 feet east of the existing Nicolas Road/Calle Girasol intersection (Specific Plan Modified Secondary Road - 110' R/W, Section K) to include installation of 40-foot width on center improvements, paving, asphalt concrete berm including signing and striping, utilities (including but not limited to water and sewer) and a 6-foot wide curb separated asphalt concrete path on the north side. "iii. Provide secondary access by constructing improvements for one of the following options: a. If Nicolas Road is designated as the secondary access route, the following improvements shall be completed: i. Construct 40 foot on center improvements (Specific Plan Modified Secondary Road - 110' R/W, Section K) from 450 feet east of the 'existing Nicolas Road/Calle Girasol intersection to Leifer Road including paving, asphalt concrete berm, including signing and striping, utilities (including but not limited to water and sewer) and the full-width bridge structure over and within Santa Gertrudis Creek. ii. Realign Girasol to its ultimate intersection including right-of-way acquisition. existing Calle with Nicolas Road I 11086/0004/904824.1 August 8, 2006 2 I iii. The Developer shall provide 'adequate bank protection, as approved by the City Department of Public Works and RCFC&WCD, to allow a bridge crossing at Nicolas Road/Calle Girasol along Santa Gertrudis Creek Nicolas Road will not be accepted into the City's maintained street system until all offsite channel improvements are complete and accepted by the City and RCFC&WCD." [ The improvements to the intersection of Nico las Road and Calle Girasol require that Developer improve the Santa Gertrudis Creek Flood Control ChanneL Proper channel design and environmental agency requirements require that the channel improvements be extended to Liefer Road. These channel improvements may also require the replacement of the Liefer Road Bridge. Certain property interests are required for these proposed improvements. g. The necessary rights of way to be acquired pursuant to this ,Agreement for the improvement to Santa Gertrudis Creek Flood Control channel in connection with the improvements to Nkolas Road are described on Exhibit "A," attached hereto and incorporated herein by this reference as though set forth in full (referred to hereafter as "Subject Property Interests"). Developer has made a good faith effort to procure the Subject Property Interests but has thus far been unable to acquire them. I h. Developer has requested the City to acquire the Subject Property Interests pursuant to Government Code Section 66462.5 and Section 3.1.3.5 of the Development Agreement. i. The parties recognize that City cannot exercise its power of eminent domain until a Resolution of Necessity has been adopted by the City's legislative body pursuant to law. This Agreement is neither a commitment nor an announcement ofan intent by the City to acquire any or all of the Subject Property Interests that may be affected by the Developer's project or needed for the improvements to the Santa Gertrudis Channel in connection with the improvements to Nicolas Road. j. Developer acknowledges and agrees that the costs it will incur under this Agreement are reasonably related to the Project and the Nicolas Road improvements are necessary for the Project. 2. City Acquisition of Subiect ProoertY Interests for Imorovements to Santa Gertrudis Channel in Connection with Improvements to Nicolas Road. In accordance with and subject to all of the terms, covenants and.conditions of this Agreement, the City agrees to the following: I 1 J 086/0004/904824.1 August 8, 2006 3 I a. The City shall obtain an appraisal of the Subject Property Interests in accordance with the requirements of the Eminent Domain Law. b. The parties agree that City shall, in good faith and pursuant to the requirements of law, negotiate with the current owners of the Subject Property Interests in order to attempt to acquire the necessary Subject Property Interests without the necessity of eminent domain proceedings. c. If such negotiations prove unsuccessful, City shall begin the preacquisition procedures required by law in connection with condemnation proceedings. d. Subject to the full satisfaction of the negotiation and notice requirements imposed by law, City shall schedule a hearing to consider adoption of a Resolution of Necessity for acquisition of the Subject Property Interests by Eminent Domain. I e. City shall file condemnation proceedings for the purpOse of acquiring the Subject Property Interests if: (I) The City Council determines that all applicable laws relating to the appraisal and required negotiation have been complied with; (2) the City Council has considered all of the facts presented at the hearing for the Resolution of Necessity by Staff and the owners of the Subject Property Interests bearing on the findings required for a Resolution of Necessity; (3) the City Council, in its sole and exclusive discretion, makes the findings necessary for a Resolution of Necessity under the Eminent Domain Law by the requisite vote; and (4) the City Council elects, in its sole and exclusive discretion, to adopt such Resolution of Necessity. f: If the Council elects, in its sole and exclusive discretion, to adopt a Resolution of Necessity and initiate eminent domain proceedings, such proceedings shall be promptly filed following the adoption of the Resolution of Necessity, and diligently prosecuted by City. . g. If the Council elects, in its sole and exclusive discretion, to adopt a Resolution of Necessity and initiate eminent domain actions, the City shall also seek an order of immediate possession of the Subject Property Interests. h. The parties hereto do recognize that if condemnation proceedings are required as to the Subject Property Interests, City may not be able to obtain the necessary title to the Subject Property Interests within the time required pursuant to the provisions of this Agreement and, thus, Developer waives the time requirements of Government Code Section 66462.5. i. The parties hereto further agree that if there is a final determination in such eminent domain proceedings finding that the City does not have, as to any of the Subject Property Interests the right to take, within the , meaning of the Eminent Domain Law, or the City elects not to adopt a Resolution of Necessity this Agreement may be terminated by the City. I 11086/0004/904824.] August 8, 2006 4 I j. Developer agrees to pay all costs of the City necessary for the acquisition ofthe Subject Property Interests, including, but not limited to, payments for land and improvements on the land, severance damages, fIXtures and equipment payments, payments for business goodwill, pre-condemnation damages, relocation assistance and benefits, abandonment damages, attorneys' fees, litigation expenses, consultant fees and costs, appraiser fees and costs, title policy and litigation guarantee charges and costs, deposils, any sum paid as and for settlement of any eminent domain proceeding filed by the City for the acquisition of the Subject Property Interests, and such other payments, costs or expenses arising out of the City's acquisition of the Subject Property Interests. Developer agrees that City shall exercise exclusive control of the acquisition of the Subject Property Interests and, if necessary, an eminent domain action to acquire the Subject Property Interests. k. City and Developer shall cooperate in the acquisition process and keep each other fully advised of the progress of the acquisitions. /. Developer has deposited with the City the sum of dollars ($ .00) which sum is the estimated costs of the appraisal of the Subject Property Interests and the preliminary estimate of attorney fees and costs for the acquisition of the Subject Property Interests and eminent domain action, if required, and which sum shall be applied to the costs of the acquisition of the Subject Property Interests. If the Director oCFinance determines that the amount of the actual costs incurred by the City for the appraisal and legal fees will be more than the amount of the deposit, the Developer shall transfer to €ity or City's bank, such amounts as the Director of Finance determines necessary fur the acquisition costs within five (5) business days ofa written request from the Director of Finance. If the amount of the actual costs incurred by the City is less than the amount of the deposit, then the City shall refund the difference to the Developer, without interest, within ten (10) working days following either the close of escrow for acquisition of the Subject Property Interests, notice ofthe Court's entry of the Final Order of Condemnation, or the determination by the City, in its sole and exclusive discretion, that the eminent domain action is final and no further rights of appeal are possible. I m. Within ten (10) days of a written request from the Director . of Finance, Developer shall deposit with the City or City's bank, such amount, either in whole or in part, as the Director of Finance determines is the value of the Subject Property Interests, and closing costs. Developer understands and . acknowledges that such demand may occur at any time after the execution of this Agreement as may be necessary for the deposit of probable compensation pursuant to the Eminent Domain Law at the time of filing an eminent domain action, settlement of the eminent domain action, or to close escrow pursuant to a negotiated purchase and sale agreement. I 11086/00041904824.1 August 8, 2006 .5 I n. In the event Developer does not make the deposits described in this Agreement in the times required by this Agreement, City may, at its discretion, pay for the expenses described in this Agreement. Developer agrees that in such event the City may recover the expenses from the Performance Bond for the subdivision improvements for the Project. 3. ' Negation of Agencv. The parties acknowledge that, in entering into and performing under this Agreement, each is acting as an independent entity and nol 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, agents of the other, or employer/employee. 4. Notices. All notices under this Agreement shall be in writing and shall be deemed delivered when personally received by the .addressee, or within three (3) working days after deposit in the United States mail by registered or certified mail, postage prepaid, return receipt requested, to the following parties and their counsel at the addresses indicated below, provided, however, if any party to this Agreement delivers a notice or causes a notice to be delivered to any other party to this Agreement, a duplicate of that Notice shall be concurrently delivered to each other party and their respective counsel. To City: City ofTemecula Attention: City Manager 43200 Business Park Drive Post Office Box 9033 Temecula, CA 92589-1033 I With a Copy to: Peter M. Thorson, Esq. Richards, Watson & Gershon 355 South Grand Ave., 40th Floor Los Angeles, CA 90071 To Developer: Ashby USA, LLC 39252 Winchester Road, Suite 107-393 Murrieta, CA 92563 Attention: Sunny Kopp, Project Manager Ashby Development Company, Inc. Justin Ashby, President 470 E. Harrison Street Corona, CA 92879-1314 5. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. I 11086/0004/904824.1 August 8, 2006 6 I 6. Force Maieure. I a. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where party seeking the extension has acted diligently and delays or defaults are due to events beyond the'reasonably control ofthe party such as but not limited . to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; intragalactic invasion; lack of transportation; litigation; unusually severe weather; or any other causes beyond the control or without the fault ofthe party claiming an extension oftime to perform. b. Notwithstanding anything to the contrary in this Agreement, an extension oftime for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. c. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City Manager and the Developer. 7. 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. 8. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Developer and the City of Temecula and their successors and assigns. No other person shall have any right of action based upon . any provision of this Agreement. 9. Attornevs' Fees. If any party commences any action for the interpretation, enforcement, termination, cancellation or rescission of this Agreement, or for specific performance for the breachhereof, the prevailing party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees under this Section shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post-judgment proceedings to collect or enforce the judgment. 10. IntelITation of Terms. This Agreement represents the entire agreement of the parties with respect to the acquisition of the Subject Property Interests. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof, except for the Subdivision Improvement Agreement for the Tract between the City and the Developer. I 11086/0004/904824.1 August 8, 2006 7 I II. Investigation bv Develooer. Developer warrants and represents to the City that it has investigated all of the costs and expenses of the acquisition of the Subject Property Interests and the potential eminent domain action Developer is requesting. Developer further represents and warrants that it has had the opportunity to review the terms of this Agreement with legal counsel. 12. Governinl! Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 13. Counteroarts. This Agreement may be executed in counterparts, each of which shall be an original instrument, and all when taken together, shall constitute this Agreement. . /11 11/ I I It 086/0004/904824.1 August 8, 2006 8 I IN WITNESS WHEREOF, the Parties have each executed this Agreement of the date first written above. CITY OF TEMECULA Ron Roberts Mayor ATTEST: Susan Jones, CMC City Clerk I APPROVED AS TO FORM: Peter M. Thorson City Attorney I 11086/0004/904824.1 August 8, 2006 9 I ASHBY USA, LLC, a California limited liability company By: Ashby Development Company, Inc., ils Managing Partner By: Justin K. Ashby President By: USA Investment Partners, LLC, a Nevada limited liability company, its member By: USA Commercial Mortgage Company, a Nevada corporation, its non-Member Manager. I By: Joseph D. Milanowski President I 11086/0004/904824.1 August 8, 2006 10 I EXHIBIT "A" DESCRIPTION OF SUBJECT PROPERTY INTERESTS I) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Juan P. Delval and IIIana Delval, commonly known as 31050 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-140-005, which parcel is shown on the attached map. I 2) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Isaac G. Navejar and Isabel L. Navejar, commonly known as 39622 Liefer Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-023, which parcel is shown on the attached map. 3) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Ngo Lam and Tran Huyen Lam, commonly known as 31249 Indian Summer Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-022, which parcel is shown on the attached map. 4) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Reine Baillargeat Trust, commonly known as 31249 Indian Summer Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-020, which parcel is shown on the attached map. 5) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Goldie M. Edwards and Cecil E. Edwards, commonly known as 31249 Indian Summer Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-019, which parcel is shown on the attached map. 6) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Foursquare International Church, commonly known as 31276 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-018, which parcel is shown on the attached map. " 7) The necessary right of way for the Nicolas Road Improvements located on the real property owned by DSE Temecula I Limited Partnership, commonly known as 31253 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-150-003, which parcel is shown on the attached map. I 1I08(i10004/904824.1 August 8, 2006 11 I 8} The necessary right of way for the Nicolas Road Improvements located on the real property owned by DSE Temecula I Limited Partnership, commonly known as 31255 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-150-016, which parcel is shown on the attached map. 9) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Michael K. Brannigan and Elaine Brannigan, commonly known as 31270 Tommy Lane, Temecula, California 92591, and identified as Assessor's Parcel Number 957-150-005, which parcel is shown on the attached map. 10) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Michael K. Brannigan and Elaine Brannigan, commonly known as 31280 Tommy Lane, Temecula, California 92591, and identified as Assessor's Parcel Number 957-150-006, which parcel is shown on the attached map. I I 11086/0004/904824.1 August 8, 2006 12 I Agreement with Seraphina LLC I I I AGREEMENT BETWEEN THE CITY OF TEMECULA AND SERAPHINA. DEVEWPMENT LLC FOR THE ACQUlSmON OF CERTAIN PROPERTY FOR PUBLIC RIGHTS OF WAY IN CONNECTION WITH THE IMPROVEMENTS TO NICOLAS ROAD TIllS AGREEMENT ("Agreement") is made and entered into as of August 8, 2006 by and between the CITY OF TEMECULA, a general law city in the State of California ("City"), and SERAPHINA DEVELOPMENT LLC, a Washington limited liability company ("Developer"). In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto agree as follows: I. Recitals. This Agreement is made with respect to the following mcts and for the following purposes, each of which is acknowledged as true and correct by the parties: I a. On March 16, 2005, the City of Temecula Planning Commission approved Tentative Tract Map No. 32346, subdividing 28.6 acres into 71 lots on Assessor's Parcel Numbers 957-080-014 and 957-080-019 ("Project"), generally located on the north side of Nicolas Road, east of Joseph Road along with conditions of approval for the Tentative Tract Map (''Tentative Tract Map''). The Tentative Tract Map expires on March 16,2007. b. Developer is the owner of the land included within the Tentative Tract Map. Under the Tentative Tract Map, the Developer is responsible for the construction and installation of certain on-site and off-site . public improvements. c. Pursuant to Condition 70.a. of the Tentative Tract Map (pages 14-15 of Tentative Tract Map), the Developer is obligated to improve Nicolas Road along the frontage of the subdivision to the Arterial Highway Standards prior to approval of the Final Map. Condition 70.a. of the Tentative Tract Map requires the developer to "include dedication of half-width street right of way, installation of half-width street improvements, paving, curb and gutter, sidewalk, street lights, drainage facilities, signing and striping, utilities (including but not limited to water and sewer) and a raised landscaped median." d. The improvements to the intersection of Nicolas Road and Calle Girasol require that Developer improve the Santa Gertrudis Creek Flood Control Channel. Proper channel design and environmental agency requirements require that the channel improvements be extended to Liefer Road. These channel improvements may also require the replacement of the Liefer Road Bridge. Certain property interests are required for these proposed improvements. I 11086/00041904912.1 August 8, 2006 I I e. The necessary righls of way to be acquired pursuant to this . Agreement for the improvement to Santa Gertrudis Creek Flood Control channel in connection with the improvements to Nicolas Road are described on Exhibit "A", attached hereto and incorporated herein by this reference as though set forth in full (referred to hereafter as "Subject Property Interests"). Developer has made a good faith effort to procure the Subject Property Interests but has thus far been unable to acquire them. f. Developer has requested the City to acquire the Subject Property Interests pursuant to Government Code Section 66462.5. g. The parties recognize that Cily cannot exercise its power of eminent domain until a Resolution of Necessity has been adopted by the City's . legislative body pursuant to law. This Agreement is neither a commitment nor an announcement of an intent by the City to acquire any or all of the Subject Property Interests that may be affected by the Developer's project or needed for the improvements to the Santa Gertrudis Channel in connection with the , improvements to Nicolas Road. I h. Developer acknowledges and agrees that tJie costs it will incur under this Agreement are reasonably related to the Project and the Nicolas Road improvements are necessary for the Project. 2.' City ACQuisition of Subiect Property Interests for Improvements to Santa Gertrudis Channel in Connection with Imorovements to Nicolas Road. In accordance with and subject to all of the terms, covenants and conditions of this Agreement, the City agrees to the following: a. The City shall obtain an appraisal of the Subject Property . Inlerests in accordance with the requirements of the Eminent Domain Law. b. The parties agree that City shall, in good faith and pursuant to the requirements oflaw, negotiate with the current owners of the Subject Property Interests in order to attempt to acquire the necessary Subject Property Interests without the necessity of eminent domain proceedings. c. If such negotiations prove unsuccessful, City shall begin the preacquisition procedures required by law in connection with condemnation proceedings. d. Subjectto the full satisfaction of the negotiation and notice requirements imposed by law, City shall schedule a hearing to consider adoption . ofa Resolution of Necessity for acquisition of the Subject Property Interests by Eminent Domain. e. City shall file condemnation proceedings for the purpose of acquiring the Subject Property Interests if: (1) The City Council determines that all applicable laws relating to the appraisal and required negotiation have been I 11086/0004/9049]2.] August 8, 2006 2 I complied with; (2) the City Council has considered all of the facts presented at the hearing for the Resolution of Necessity by Staff and the owners ofthe Subject Property Interests bearing on the findings required for a Resolution of Necessity; (3) the City Council, in its sole and exclusive discretion, makes the fmdings necessary for a Resolution of Necessity under the Eminent Domain Law by the requisiie vote; and (4)the City Council elects, in its sole and exclusive discretion, to adopt such Resolution of Necessity. f. If the Council elects, in its sole and exclusive discretion, to adopt a Resolution of Necessity and initiate eminent domain proceedings, such proceedings shall be promptly filed following the adoption of the Resolution of Necessity, and diligently prosecuted by City. I g. If the Council elects, in its sole and exclusive discretion, to adopt a Resolution of Necessity and initiate eminent domain actions, the City shall also seek an order of immediate possession of the Subject Property Interests. h. The parties hereto do recognize that if condemnation proceedings are required as to the Subject Property Interests, City may not be able to obtain the necessary title to the Subject Property Interests within the time required pursuant to the provisions of this Agreement and, thus, Developer waives the time requirements of Government Code Section 66462.5. i. The parties hereto further agree that if there is a final determination in such eminent domain proceedings finding that the City does not have, as to any of the Subject Property IntereSts the right to take, within the meaning of the Eminent Domain Law, or the City elects not to adopt a Resolution of Necessity this Agreement may be terminated by the City. j. Developer agrees to pay all costs of the City necessary for the acquisition of the Subject Property Interests, including, but not limited to, payments for land and improvements on the land, severance damages, fixtures and equipment payments, payments for business goodwill, pre-condemnation damages, relocation assistance and benefits, abandonment damages, attorneys' fees, litigation expenses, consultant fees and costs, appraiser fees and costs, title policy and litigation guarantee charges and costs, deposits, any sum paid as and fur settlement of any eminent domain proceeding filed by the City for the acquisition of the Subject Property Interests, and such other payments, costs or expenses arising out of the City's acquisition of the Subject Property Interests. Developer agrees that City shall exercise exclusive control of the acquisition of the Subject Property Interests and, if necessary, an eminent domain action to acquire the Subject Property Interests. k. City and Developer shall cooperate in the acquisition process and keep each other fully advised of the progress of the acquisitions. I 11086/0004/904912.1 August 8, 2006 3 I 1. Developer has deposited with the City the sum of dollars ($' .00) which sum is the estimated costs of the appraisal of the Subject Property Interests and the preliminary estimate of attorney fees and costs for the acquisition of the Subject Property Interests and eminent domain action, if required, and which sum shall be aplJlied to the costs of the acquisition of the Subject Property Interests. If the Director of Finance determines that the amount of the actual costs incurred by the City for the appraisal and legal fees will be more than the amount of the deposit, the Developer shall transfer to City or City's bank, such amounts as the Director of Finance determines necessary for the acquisition costs within five (5) business days ofa written request from the Director of Finance. If the amount of the actual costs incurred by the City is less than the amount of the deposit,: then the City shall refund the difference to the Developer, without interest, within ten (10) working days following either the close of escrow for acquisition of the Subject Property Interests, notice of the Court's entry of the Final Order of Condemnation, or the determination by the City, in its sole and exclusive discretion, thaI the eminent domain action is final and no further rights of appeal are possible. I m. Within ten (10) days of a written request from the Director of Finance, Developer shall deposit with the City or City's bank, such amount, either in whole or in part, as the Director of Finance determines is the value of the Subject Property Interests, and closing costs. Developer understands and acknowledges that such demand may occur at any time after the execution of this Agreement as may be necessary for the deposit of probable compensation pursuant to the Eminent Domain Law at the time of filing an eminent domain action, settlement of the eminent domain action, or to close escrow pursuant to a negotiated purchase and sale agreement. n. In the event Developer does not make the deposits described in this Agreement in the times required by this Agreement, City may, at . its discretion, pay for the expenses described in this Agreement. Developer agrees that in such event the City may' recover the expenses from the Performance . Bond for the subdivision improvements for the Project. 3. Negation of Al!encv. 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, agents of the other, or employer/employee. 4. Notices. All notices under this Agreement shall be in writing and shall be deemed delivered when personally received by the addressee, or within three (3) working days after deposit in the United Stales mail by registered or certified mail, postage prepaid, return receipt requested, to the following parties and their counsel at the addresses indicated below, provided, however, if any party to this Agreement delivers a notice or causes a notice to be delivered to any other party to this Agreement, a duplicate I 11086/0004/904912.1 August 8, 2006 4 I of that Notice shall be concurrently delivered to each other party and their respective counsel. ... . To City: City ofTemecula Attention: City Manager 43200 Business Park Drive Post Office Box 9033 Temecula, CA 92589-1033 With a Copy to: Peter M. Thorson, Esq. Richards, Watson & Gershon 355 South Grand Ave., 40th Floor Los Angeles, CA 90071 To Developer: Seraphina Development LLC 2010 65th Avenue West Fircrest, W A 98466 Attention: Scott Carino, Project Manager 5. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. I 6. Force Maieure. a. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where party seeking the extension has acted diligently and delays or defaults are due to events beyond the reasonably control of the party such as but not limited to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the puBlic enemy; epidemics; quarantine restrictions; freight embargoes; intragalactic invasion; lack of transportation; litigation; unusually severe weather; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. b. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. c. Times of performance under this Agreement may also be .. extended in writing by the mutual agreement of City Manager and the Developer. I 11086/00041904912.1 August 8, 2006 5 I 7. 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. 8. No Third Partv Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Developer and the City ofTemecula and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 9. Attornevs' Fees. If any party commences any action for the interpretation, enforcement, termination, cancellation or rescission of this AgJ"\lement, or for specific performance for the breach hereof, the prevailing party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees under this Section shall include attorneys' fees on any appeal as well as any attorneys' fees in.curred in any post-judgment proceedings to collect or enforce the judgment. 10. Integration of Terms. This Agreement represents the entire agreement of the parties with respect to the acquisition of the Subject Property Interests. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereo~ except for the Subdivision Improvement Agreement for the Tract between the City and the Developer. I I L Investigation bv DeveloDer. Developer warrants and represents to the City that it has investigated all of the costs and expenses of the acquisition of the Subject Property Interests and the potential eminent domain action Developer is requesting. Developer further represents and. warrants that it has had the opportunity to review the terms of this Agreement with legal counsel. 12. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 13. Counteroarts. This Agreement may be executed in counterparts, each of which shall be an original instrument, and all when taken together, shall constitute this . Agreement. . III /II I 11086/0004/904912.1 August 8, 2006 6 I IN WITNESS WHEREOF, the Parties have each executed this Agreement of the date first written above. CITY OF TEMECULA Ron Roberts Mayor ATTEST:. Susan Jones, CMC City Clerk I APPROVED AS TO FORM: Peter M. Thorson City Attorney SERAPHINA DEVELOPMENT LLC, a Washington limited liability company By: Title: By: Title: I 11086/0004/904912.1 August 8, 2006 7 I EXIllBIT "A" DESCRIPTION OF SUBJECT PROPERTY INTERESTS I) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Juan P. Delval and IlIana Delval, commonly known as 31050 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-140-005, which parcel is shown on the attached map. . I 2) The necessary right of way for the Nicolas Road Improvements located on the real property owned.by Isaac G. Navejar and Isabel L. Navejar, commonly known as 39622 Liefer Road, Temecula, California 9259 I, and . identified as Assessor's Parcel Number 957-090-023, which parcel is shown on the attached map. 3) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Ngo Lam and Tran Huyen Lam, commonly known as 31249lndian Summer Road, Temecula, California 92591, and identified as' Assessor's Parcel Number 957-090-022, which parcel is shown on the attached map. 4) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Reine Baillargeat Trust, commonly known as 31249lndian Summer Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-020, which parcel is shown on the attached map. 5) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Goldie M. Edwards and Cecil E. Edwards, commonly known as 31249 indian Summer Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-019, which parcel is shown on the attached map. . 6) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Foursquare International Church, commonly known as 31276 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-090-018, which parcel is shown on the attached map. 7) The necessary right of way for the.Nicolas Road Improvements located on the real property owned by DSE Temecula 'I Limited Partoership, commonly known as 31253 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-150-003, which parcel is shown on the attached map. I 11086/0004/904912.1 AugustS, 2006 8 I 8) The necessary right of way for the Nicolas Road Improvements located on the real property owned by DSE Temeclda I Limited Partnership, commonly known as 31255 Nicolas Road, Temecula, California 92591, and identified as Assessor's Parcel Number 957-150-016, which parcel is shown on the attached map. 9) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Michael K. Brannigan and Elaine Brannigan, commonly known as 31270 Tommy Lane, Temecula, California 92591, and identified as Assessor's Parcel Number 957-150-005, which parcel is shown on the attached map. 10) The necessary right of way for the Nicolas Road Improvements located on the real property owned by Michael K. Brannigan and Elaine Brannigan, commonly known as 31280 Tommy Lane, Temecula, California . 92591, and identified as Assessor's Parcel Number 957-150-006, which parcel is shown on the attached map. I I ] 1086/0004/904912.1 August 8, 2006 9