HomeMy WebLinkAboutDevelopment Agreement
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Htir~OLUTION N®. 97-113
A RESOLUTION t7F TffiE CIITi' CD~JNCIL OIF T]HE"C1TX
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. .. AlyRtliGl~lGldTp~a+~uyv~pn aa~tiei ~A\Ym~a'~171Gyi~vp~^.p~~YtL'ilvAR.~I~NgI~Y
. TF.IIgEC[JLA_ nr.~uV~]'fl ~LI~ IlDISCOaJ1VA.Y 'AiVIID PAuIY~
ARID RECRI?ATYORP ItLYPA('I' F1E~ C~1TS° NIDR TAU
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TEAS, concurreatt with the ezetvtion of this Agreement, the City Council
oonducDed a public hearing gertainingl to Planning Application No. PA97-0204 (Amendment and
Restatement of the Development Agreement for Specific Plan No. 199) on October 7, 1997, at
which time interested persons had opporttutity to testify either in support or opposition W Planning
Application No. PA97-0204;
\ ~'HERF.AS, the City Council received a copy of the. Commission proceedings and Staff
Report regarding Planning Application No. PA97-0204;
S, pursuant to Section 12.5 of the Development Agreement, Temeku Hills is
emitted to•credits against the Park and Recreation Impact Fees;
i~REAS, Temeku Hills is also the owner of an 18-hole golf course adjacent to the
Project, the City is interested in obtaining from Temetcu Bills discounted rates-for its residents to
.play the golf course and, pursuant to the terms and conditions of this Agreement, Temeku Dills
is willing to grant such discounted rates in exchange for additional Park Fee Credits equal to the
value of such discounted rtes,
NO®V, THEREFORE, THE ICITlC COUNCIL OE THE Cl'%'~ ®F TT1~I.A dT1DES
RESOL~rE, DETERAdIlVE AND ORDER AS IFDLI.09VS:
Section 1. k'iIIdiilgs. That the Temecula City Council hereby makes the following
findings; to wit:
A. That the development m be carried out pursuant W the Development Agreement is
consistent with the General Plan for'L'emecula and with all applicable requirements of State law,
City ordinances and Specific Plan No. 199.
B. The overall development of the land is designed for the protection of the public
health, safety and general welfare.
Section 2. Environmental! Comnlian~, Environmental Impact Report No. 202 was
_ prepared for Specific Plan No. 199 and was certified by the Riverside County Board of
Supervisors In conjunction with Amendment No. 2 to the Specific Plan, a number of additional
O Rccod97-I19
- studies were undertaken to update and complement the origmal EIR. The additional studies, a
geotechnical study, traffic study and a Kangaroo Rat trapping and update study, confirmed the
validity of the original analysis.
It has been eleven (li) years since the' original environmental analysis was
performed for this pioject. Therefore, Staff prepared another Initial Environmental Assessment
to examine the question of whether any impacts.beyond those analyzed in the previous E17[t and
subsequent studies would result from the proposed project, changes in circumstances, or new
information. In aieas where there was a potential change in circumstances, specifically traffic,
noi~, andlighting, staff requested additional information from the applicant. Based upon Staff s
analysis, the project is consistent with: the information contained in the previously'certified EIR.
Due to the limited'scoge of the proposed changes to'the-specific plan, there will'be no effect
beyond that which,was reviewed in the previous analysis:
Under California public Resources Code Section 21166 and Section 15162
of the. California Environmental Quality Act (CEQA) Guidelines, no additional EIR is required
unless additional impacts not previously considered, or'substantial increases in the severity of
impacts, may result from: substantial changes in the circumstances under which the project is
undertaken which would require a major revision in the EIR, or new inforiitation that could not
have been known at the time the EiR was prepared becomes available. Atone of these situations
has occurred; therefore, no further environmental analysis is required.
Section 3. The 'City Council- hereby approves that certain agrcement entitled
°Agreemant Regarding Temecula Resident Golf Discounts and Park and Recreation Impact Fee
Credits° for Temeku Hills, and authorizes the Mayor to execute the Agreement in substantially
the form of Exhibit A, attached hereto.
Section 4. The City Clerk shall certify the adoption of this Resolution.
a.~~a u
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O
_y
O - PASSED, APPRO~ APIID ADOPTED by the City Council of the City of Temecula
this 7th day of October, 1997.
Patricia A. Birdsall, A4ayot
ATTEST:
J . Grcek, CMGAAE
City Clerk
[S~-]
STATE OF CALIFORNIA )
COUATTY OF RIVERSIDE) ss
CITY OF TEMECULA
O
I, June S. Greek, City Clerk of the City of Temecula, do hereby certify that the foregoing
Resolution No. 97-113 was duly and regularly adopted by the City Council of the City of
Temecula at a regular meeting thereof, held on the 7th day of October, 1997 by the following
vote, to wit:
AYES: 5 COUNCILM&.MBERS: Ford, Lindemann, Roberts, Stone, Birdsall
NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
~•
June S. Greek, CMGAAE
City Clerk
O n~91-w
EXHIBIT "A"
O
'- AQvREEA~IENT REGARDING
TEARECULA RESIDENT GOH.F DISCOUNTS
AND PARK AND RECREATYON IlbYPACT F131 CREDI7('S
(1'en7e)ttr H'illc)
THIS -AGREENPF.IQT REGARDING, TEAHECULA RESIDENT GOLF DISCOUNTS
AND PARK AND RECREATION IlvIPACT FEE CREDITS (this "Agreement") is entered into
as. of this _ day of October, 1997, by a~ betv,~een the City of Temecula, a California
municipal- corporation ("City"), .aud Temelar Hills Development Farmers, L.P., a California
limited partnership,("Temeku Hills")• .-;;
RECITALS
A. Concurnnt with the. execution of this Agreement, .City and Temeku Hills have
entered .into that certain Ametuhnem sad Restatemem of Developmem Agreemem (the
"Development,Agteeatent") covering that certain 472 acre residential development located in a
portion of Specific Plan No. 199, 'Vr7lage A, known as Temeku Hills Golf and Country Club
(the "Project")..,The Project is more specifically described is Exhibit °A° attached hereto and
incorporated; herein by this reference. Unless othetwise::defiaed,.rhe capitalized terms used
herein shall have the same meanings as set forth in the Development Agreement. .
O ' B. Pursuant to Section 12.5 of the Development Agttremem, Temeku Hills is entitled
to credits against the Park and Recreation Impact Fees, inclndiag the Development Agreement
Fee, paid by Temeku Hills (or arty other Owner within the Project) as a componem of the City
Public Facilities Fce for the acatal costs expended by Tetneku Hills for the design and
construction of a park within the Project (as evidenced by acarai third party invoices), including
a reasonable overhead burden of lOEb of such actual costs (the "Par1c Fee Credits"). As a result
of the Park Fce Credits, the Park and Recreation Impact Fees, inchrding the Development
Agreement Fee, otherwise: paid by Temeku Hills (or a~ other Owner within the Project) as a
componem of the City Public Facilities Fee shall be eliminated until such time as the Park Fee
Credits have been exhausted.
C. Temeku Hills is also the owner of an 1S-hole golf course adjacent to the Project,
more particularly described in Exhrbit "B° attached hereto and incorporated herein by this
reference (the °Golf Course"). The Golf Course will provide additional recreational
opportunities., for Temecula residents. City is interested in obtaining from Temeku Hills
discounted rates for its residents to play the Golf Course in order to increase the availability of
these recreational activities and, pursnam to the terms and conditions of this Agreemern, Temeku
Hills is willing to grant such discounted rates in exchange for additional Park Fce Crediu equal
to the value of such discounted rates for each year this Agreement is in effect.
_ NOW, THEREFORE, in consideration of the above Recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideratioa,the receipt and snfficicncy
O of which is hereby acknowledged and incorporated herein, the patties agree:
0
--- mPERATIVE PROVISIONS
1. Temecula Beside
(a) Temeku HBIs shall offer all City t+esidems, upon ptrsemation of
satisfactory proaf of such msideacy (as may be teasottubly dtxermirred by Tetneku Hills and
City), and only during the Discount Periods (as defied in Paragraph 2 below), discounts to play
the Golf Course (the °Resident Golf Discounts°) equal to: (a)'twenty-orie percent (21 ~) of the
amount for green fees only (currently $24 per golfer per round), attd specifically not for golf
cart rentals (currently $11 per golfer per m+rnd), as the same may exist from time to time, on
Mondays through Fridays ("Weekdays"); and (b) eighteen percent (18 %) of the amount for green
fees only (currently $38 per golfer per round), and specifically not for golf cart rentals (currently
$11 per golfer per round), as the same may exist from time w eime, on Saturdays and Sutxiays
("Weekends°). The Resident Golf Discounts shall be rounded either up or down to the closest
dollaz. Based on these currem green fees, the~Resident Golf Discounts would be $5 per golfer
per round on Wcekdays, and $7 Paz golfer pa round on Weekends.
(b) Person exercising the Resident Golf Discounts shall be subject to space
availability on a first come, first served basis at the Golf Course during the Discount Periods
(as defined in Paragraph 2 below) anal shall not apply to the cost of golf rati rentals or any other
- services offered at the Golf Course from time to time.
(c) Temeku Hr71s resrnes the right m increase or decrease green fees az a~
time, and from time to tithe, is its sole and absohue discretion; provided, however, the
percentages determining the Resident Golf Discounts as set forth iu subparagraph 1(a) above
'shall apply to the green fees as they maybe determined by Tetneku Hills, and as they may exist,
from tithe to tone.
2. Discount Periods Schedule. The Resident- Golf Discounts shall be available to
Temecula residems only at the following days and times (the "Discount Periods"):
(a) Weekdays before 7:30 a.m. all yeaz long (for Discount Periods of .5 bouts
for weekdays during the momhs of November through April ("Wiener Months"), and 1.0 hour
for wcekdays during the motrths of May through October ("Summer Months"));
(b) Weekdays from 10:00 a.m to 12:30 p.m. during Winter Motrths (for
Discoum Periods of 2.5 hoots for weekdays during Winter Months);
(c) Wcekdays from 11:00 a.m to 1:30 p.m. during Summer Moths (for
Discount Periods of 2.5 hams for weekdays during Summer Mouths);
_ (d) Wcekends from 10:30 a.m. to 12:30 p.m. during Wiener Months (for
Discount Periods "of 2 hours for weekend days during Winter Months); and
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(e) Weekends from 11:00 a.m to 1:30 p.m. during Sumtrxr Months (for
Discount Periods of 2.5 hours for weekend days doting Summer Months):
3. Temecula Residents. Reservations. In order to moree fully utilize the Residem Golf
Discounts during Discount Periods, City residents shall have the right to make reservations for
two (2) or more golfers eight (8) days in advance foi•' tee times at the Golf Course doting
Discoum Periods. Non-City residerus shalt have the tight to make resetvatioac for two (2) or
more golfers seven ('7) days in advattce for tee times at'the Golf Course during Discount
Periods.
4. Amount of Park Fee Credits.
(a) .City and Temeku Hi11s hereby understand affi agree that for purposes of
this Agreemetu 28 golfers per hour could be accommodated during Discount Periods. Based
thereoa, the value of the Resident Golf Discounts for a~ particular year shall be determined as
follows: -
Weekdays. On a montlily basis, multiply 28 golfers per hour by the
number of hours per day the Weekday Residem Golf Discount is available (3 hours for Winter
Months and 3.5 hours for Summer Months). Then, multiply such amount by the number of
O Weekdays in that month and;- then, multiply such product by the amount of the then applicable
Weekday Residem Golf Discount (currently $3): This calculation provides the' value of the
Weekday Resident Golf Discount for that mondt. The value of the Weekday Residem Golf
Discount for any given year is determined by adding together the value of the Weekday Resident
Golf Discounts for each month in that year.
Weekends. Oa a monthly basis, multiply 28 golfers per hour by the
number of bouts per day the Weekend Resident Golf Discount is available (2 hoots for Wittier
Months and 2.5 hours for Summa Months). Then, multiply such amount by the ntmmber of
Wxkend days in that month oral., rhea, multiply such product by the amount of the then
applicable Weeke~ Resident Golf Discount (currently $7). This calculation provides the value
of the Weekend Resident Golf Discount for that month. The vahre of the Weekend Resident
Golf Discount for any given yeaz is determined by adding together the value of the Weekend
Residem Golf Discounts for each moath in that year.
The combined value of the Weekday and Weeke~ Resident Golf Discounts
for any given year shall be referred to hereinafter collectively as the "Amos( Resident Golf
Discounts Value." Based on tarrrent green fees only ($24 and $3>3 per golfer per round for
Weekdays and Weekends, respectively) and the corresponding current Residem Golf Discounts
($5 and $7 per golfer per round for Weekdays and Weekends, respectively), the Arousal Resident
_ Golf Discounts Value for the first year of this Agreement is $168,724 (as calculated acrd shown
as the "Grand Total" on Exhibit 'C" attached hereto and incorporated herein by this reference).
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-- (b) City and. Temeku Hills hereby, understand and agree that Temeku Hills
shall receive, on an annual basis, additional Park .Fee Credits in the amount of seventy-five
percent t75%) of the Annual Resident Golf Discounts Vahie (as shown as a °Graad Total° of
$164,724 on F.xlubit °C" for the fast yeaz of this Agreement), as the same tray be modified in
accordance with subparagraph 4(c) below. Based on the foregoing, and absent any modification
is awotdance with. subpaagtaph. 3(cj below,. Temeku. Hills, shall :receive additional Park Fee
• Credits in the amount of $123,543 (.75 x $164,724),:for the fits[ year of this Agreement.
(c) Temelw-Hills shall have the right. once a, year diiritrg the term of this
Agreement, and upon written notice delivered m City pursuam to Paragraph li below, to cause
an adjustment in the amount of the benefit of the then applicable Anmral Resident Golf Discounts
Vahie (with a corresponding adjustment in the amount of additional Park Fee Credits for sack
year) by: (i) increasing. in its sole aod.absohite discretion,. the ages detemuining the
Resident Golf Discouras; and/or (b~ increasing of decreasing the green fees determining the
Resident Golf Discoutts (although Temeku Hr71.a shall. have the unilateral right to increase or
decrease green fees for the Golf Course as often as Temeku Hr71s shall determine in its sole and
absolute discretion). Within thirty (30) days of City's receipt of any such notice (including a
proposed and revised F.xlubit "C" showing the calculation of the Annual Resident Golf Discounts
Value), City shall verify and acknowledge in writing the rzcaleuhtted amount of the Annual
Resident Golf Discoums Vahte (along with the corresponding adjusanem in the amoutu of
additional Park Fce Credits for such. year). _..
(d) Notwithstanding the.provisions of subparagraph 4(c) above, upon written ' O
notice from Temeku Hills within [bitty (30).days,of each anniversary date of this Agteemem -y'
(including a proposed and revised Exhibit "C" showing the calculation of the Annual Resident
Golf Discounts Vahte for the upcoming yeaz), City shall verify and ac~owledge in writing the
amount of the Attttnal Residem Gmif Discounts Vahte for the upcoming. year (along with the
corresponding adjustment in the amotim of additional Park Fee Credits for such year).
S. j~e of Pack Fee Credits. As a result of the additional Parts Fee Credits obtained
by Temeku Hills pursuant to the terms of this Agreement, the Park and Recreation Impact Fees,
incheding the Development Agreement Fee,,paid as by Tetneku Hills (or any other Ow~r in the
Project) as a component of the City Public Facilities Fee shall be eliminated until such tithe as
these additional Park Fee Credits have been exhausted.
6. Accountine of Park Fce Credits. City shall maintain books and records
accounting for the balance of the Park Fee Credits, as'the same may be used from time ro time
by Temeku Hills (or other Owners within the Project) as set forth in Section 5 above, and upon
written request; shall provide Temeku Hills with a written report accounting for the use of the
Pazk Fce Credits to date.
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-. 7. Terra.
(a) The term of this Agreement shall cornntence on November 1, 1997 and
shall extend for a period" of four (4) years. TLereafter, upon mutual written consent of the
parties hereto, this Agreemem may be extended from year to year.
(b) ., This Agrcenmert shall r~TmimrP and be of no force acrd effect upon the
occurrence•of the entry of.a final jndgmeat or +~~,A.,c~ of the final order after exhaustion of any
appeals, directed against the City as a result of any lawsuit filed against directing the Ciry to set
aside, withdraw, or abrogate the approval by the City Council of the City of this Agreement.
8. o ' s. All notices required or provided for under this Agreement shall be in
writing and delivered in person or sem by certified mail postage prepaid and presumed delivered
upon actual .receipt by personal delivery or within three (3) days following deposit thereof in
United States Mail. Notice required to be given to City shag be addressed as follows:
To City: City of Temecula
. P;O. Box-9033
Temecula. CA 92589-9033 '
- Atteffiion: City Clerk
-O With a copy to: Peter 1v1. Thorson, City Attorney
Richards, Watson & Gershon
A Professional Corporadoa
333 So. Hope Street, 38th=Flooi '
Los Angeles, CA 40071-1469
Notices required to be given to t~evaer shall be addressed as fogows:`
To ®wner:
TemePbt Hills 1)evelopmem Partners, L.P.
2727 Hoover Avenue
National City, CA 91950
Atternion: James H. Hutuer, Senior Vice President
With a copy to: Lorenz Alhadeff Carumn & Rose, LLP
27553 Ynez Road, Suite 203
Temecula, CA 92591
Atremion: Samuel C. Alhadeff, Fsq.
A party may change the address by giving notice in writing to the other party in the manner
- provided for herein, and thereafter notices shall be addressed and transmitted to the new
address.
O aot.FZ.~aw~asaa.mv~ao~v~ -5-
,~
9. Miscellaneous Provisions.
(a) bF legai action by either party is brought because of breach of this
...Agreement or to enforce a provisibn of this Agreement, the prevailing parry is entitled to
reasonable attorneys fees anti court costs.
• (b) This-..Agreement sets forth and trontains the entire understanding and
agreement of the parties,: and there are im oral ar written represemations, ttndecuandings or
,ancillary covettatus,• irndettakitrgs or agreements which ate not contained or expressly
referred to. herein. No testimony or evidentx of a~ such representations, understandings or
covenants shall be admissible in a~ procxeding of any kind or nature to interpret or
determine the terttts or conditions of this Agteettrent.
•. (c) If any term, provision, covenant. or condition of this Agreement shall
,:be determined invalid, void or utreafottxabie, the remainder of this Agrcemem shall trot be
affected thereby to the extent such remaining Provisions ace not zeadered impractical to
perform taking into consideration the purposes of this Agretment. Notwithstanding the
foregoing, the provision of the Pobtic Benefits set forth in Section 12 of this Agreement,
including the payment of the fees set forth therein, are essential elements of this Agreement
and Ciry would not have entered irao this Agreement but for suct- provisions, and therefore
in the event such provisions are determined to be invalid, void or unenforceable, this entire
Agreement shall be null and void and of tto force and effect whatsoever.
(d) This Agreeme~ and any dispute arising herettader shall be governed
and interpreted in accordance with the laws of the State of California. This Agreement shall
be construed as a whole according to its fair language and common meaning to achieve the
objetxives and purposes of the parties hereto, and the rote of cotrsmrction to the effect that
ambiguities are m be resolved against the draining party shall not be employed in interpreting
this Agreemem, ail parties having been tepresemed by counsel in the negotiation and
preparation hereof.
(e) .All section headings and subheadings are inserted for com~eniet-ce only
and shag not affect a~ construction or.imerpretation of this Agreement.
(f) As used herein, the singular of any word iochrdes the phual.
(g) Titne is of the essence in the performance of tbe provisions of this
Agreement u to which time is an element.
(h) Faihue by a patty to insist upon the strict performance of airy of the
provisions of this Agreemem by tha other patty, or the failure by a party to exercise its
rights upon the default of the other party, shall not constitute a waiver of such parry's right
to insist and demand strict compliatra by the other patty with the terms of this Agreement
thereafter.
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-- (i) This Agreement is made and entered into for ffie~sole protection and
benefit of the parties and their successors and assigns. No other person shall have any right
of action based upon nay provision of this Agreement.
(j) The covenaffis coraained herein are mutual covenams and also
constitute conditions to the coruxtttent or subsequent performance by the party benefitted
thereby of the covenants to be performed hereunder by such beaefitted parry.
(k) The burdens of this Agreement shall be binding upon, and the benefits
of this Agreement shall imrte to, all successors in interest to the parties to this Agreement.
(1) This Agreement may be executed by the parties in counterparts, which
counterparts shall be consnved together and have the, same effect as if all of the parties had
executed the carne instrttment.
(m) Any action at law or in equity arising under this Agreemem or brought
by an party hereto for the purpose of enforcing, consnuing or determining the validity of any
provision of this Agreement shall be filed and tried in the Superior Court of the County of
Riverside, State of California, and the ponies hereto waive all provisions of law providing
for tbe filing, removal or change of venue to a~ other court.
(n) Each of the parties shall cooperate with and provide reasonable
O assistance to ffie other to the extern coraetnplated hereunder in the performance of all
obligatioae under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either party at a~ time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and free or record such required
instruments and writings and take any aarons as may be reasonably necessary under the
terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement
or to evidence or co~~**~*nate the transactions contemplated by this Agreement.
(o) Each party hereto exptt:ssly warrants a~ represents that he/she/they
has/have the authority to execute this Agreement on behalf of his/her/their corporation,
partnership, busirxss entity, or governaxntal entity and warrants and represents that
he/she/they has/have the authority to bind his/lur/their entity to the performance of its
obligariotrs hereunder.
p aotFr.,~owr asw.mvirois~ -7-
IN WITNESS"WHEREOF this Agreement has been executed by tix authorized
representatives of the parties hereto.
City of Temecula
By:
Y
Patnc~a H. Budsall, Mayor
ATTEST:
June S. Gteek, City Cleric
APPROVED AS TO FORM:
Peter M. Thorson, City Attorney
"OWNER"
Temekn Hills: Temelcn Hills Developmem Partners, L.P.;
a California limited partnership
By: McMillin Project Services, Imo., .
a California- corporation, as Attorney-in-fact
Under Durable Power of Attorney
By:
Its:
By:
Its:
GOIFtAGW/t a5]61101/100197 -H- O
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®RiDI%ANC)E r1O. 97 20
Arl ORDIlVAIVCE OF THE CI'd'Y COUr1CitL OF TlEIE CIfT~
OF TEA3ECIILA APPRO~VG. T1E~AAT CETiiTAIRT
DE6'EiAP~1S'd' AGItEEli9F1~lT lER]1gTE.1® °A1Li~tVllDIl~Er1T
Arm RESTATI~~lvT OF DEVEIIdDIE°Ji~RIT ACn1T,.
sPECxFac PLArr rro. ls~, s~,LA~ii;, A, PLAr>RllRr~ ACAS
33 TO 3g, ~0 'flYD ®4 A1VD fib, 1'LANNIlYG APPLYCATI[ORT
rIO. PA49-02Qd .°RIARGAR%7CA Y~LAQIIr;,' T IE$ILYS
DEVF.LOPIV~iVT PARTrIEIY.S, L.P. ArID 1QY2C ~OAgF.S,
11~C•p
Tom' Cy1pT~X C®j\U~ry1Cl/I~.y~®~(F THE C%fl'X O]E TFA~CULA, STATE ®F CALIFFOl31V%A,
DOES ~11U/Al1V A171~~/lIQA/YY Ji
Section 1. Temeku I3i1Lc Development Partrrers, L. P. filed Planning Application No.
PA97-0204 in accordance with the City of Temecula General Plan and Development Code. Public
hearings have been held before the Planning Commission and City Council of the City of
Temecula, State of California, pursuant to ,the Planning. and Zoning laws ~of the State of
California, and the City Code of the City of Temecula.
Section 2. F.nvimnmental Comb liance. Environmental Impact Report No. 202 was
prepared for Specific Plan AIo. 199 and was. certified by the Riverside County Board of
Supervisors. In conjunction with Amertdment Ido. 2 to the Specific Plan, a number of additional
studies were undertaken to update and complement the original EIRE,: The additional studies, a
geotechnical study, traffic study and a Kangaroo Rat trapping and update study, confirmed the
validity of the original analysis.
It has been eleven (11) years since the original environmental analysis was
performed for this project. Therefore, Staff prepared another Initial Environmental Assessment
to examine the question of whether any impacts beyond those analyzed in the previous EIR and
subsequent studies would result from the proposed project, changes in circumstances, or new
information. In areas where there was a potential change in circumstances, specifically traffic,
noise, and lighting, staff requested additional informadon from the applicant. Based upon Staff s
analysis, the project is consistent with the information contained in the previously certified EIR.
Due to the limited scope of the proposed changes to the specific plan, there will be no effect
beyond that which was reviewed in the previous analysis.
Under Califomia Public Resources Code Section 21166 and Section 15162
of the California Environmental Quality Act (CEQA) Guidelines, no additional EIR is required
unless additional impacu not previously considered, or substantial increases in the severity of
impacts, may result from: substantial changes in the circumstances under which the project is
undertaken"which would require a major revision in the EIR, or new information that could not
aa.~r-zo
have bees )mown at the time the EDt was' prepared becomes available. None of these situations
has occuaed; therefore, no further environmental,analysis is required.
Section 3. F]IIS11Dg5
The City Council in approving. the proposed Development Agrcement, makes the following
findings, to wit:
1. The development to be carried out pursuant to the Development Agrcement
is consistent with the General Plan.
2. The Development Agreement and the development to be carried out
hereunder complies with all other applicable requirements of State law, City ordinances and
Specific Plan No. 199.
Section 4. The City Council- hereby approves that certain agreement entitled
"Amendment and Reshetement of Development Agn9crreent between City of Temecula and Temeku
Hips Development Partners, L. P. and UDC Homes Inc." and authorizes the Mayor to execute
the Agreement in substantially the form of Exhibit A, attached hereto.
Section S. The City Clerk is directed and authorized w record the Agreement.
Section 6. This Ordinance shall be in full force and effect thirty (30) days after its
passage. The City: Clerk shall certify to the adoption of this Ordinance. The City Clerk shall
publish a summary of this Ordinance and a certified copy of the full text of this Ordinance shall
be posted in the office of the City Clerk at least five days prior to the adoption of this Ordinance.
Within 15 days from adoption of this Ordinance, the City Clerk shall publish a summary of this
Ordinance, together with the names of the Councilmembers voting for and against the Ordinance,
and post the same in the office of the City Clerk.
o~a.~-zo Z
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~•,
O-- PASSIID, APPItOV4~, APIID AIIOP7C1®, by the City Council of the City of Temecula
at a regular meeting held on the 28th day of Qctober, 1997.
Patricia H. Birdsall, Mayor
ATTEST:
Jlmr~S!Greek, CMC/AA
City Clerk
[SEAL
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE) ss
O' CITY OF TEMECULA )
I, June S. Greek, City Clerk of the City of Temecula, California, do hereby ceztify that
the foregoing Ordinance No. 97-20 was duly introduced and placed upon its first reading at a
regular meeting of the City Council on the 7th day of October, 1997, and that thereafter, said
Ordinance was duly adopted and passed at a regular meeting of the City Council of the City of
Temecula on the 28th day of October, 1997 by the following roII call vote:
AYES: 5 COUNCILMEMBERS: Ford, Iandemans, Roberts, Stone, Birdsall
NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCII.MEMBF.RS: None
1
June S. Gree , CMC/AAE
_.__ City Clerk
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EXHIBIT "A"
O
O
RECORDED AT THE REQUEST OF
WHEN RECORDED RETURN TO ,
City Clerk
City of Temecula
P.O. Box 9033
" Temecula, CA 92589-9033
(Space Above Line For Recorder's Uu)
AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEIVIIIVT
SPECIFIC PLAN NO. 199, VILLAGE A
. PLANNING AREAS, 33 Qo 3S, 40, fo 44 and 46
PLAPINING APPLICATYON NO. PA 97-0204
„R4ARGARITA VILLAGE"
TEI~YEIICU HII,LS DEVELOPMENT PARTNERS, L.P.
AND
UDC HOMES, IIVC. -
O
-- AMENDMENT AND RESTATEMENT OF DEVELOPA4[ENT AGREEMENT O,
BETWEEN CHTY OF TEMECULA
and
TEA9EKU HILLS DEVELOPIIVIENT PARTNERS, L.P.
and
UDC HOAYES, INC.
This Amendment and Restaumrnt of Development Agreement ("Agreement") is
entered into by and among the City of Temecula, a California Municipal Corporation ("City")
and Temeku Hills Developmrnt Partners, L.P., a California limited partnership ("Temeku
Hills"), and UDC Homes, Inc. a California corporation ("LJDC'7. Temeku Hills and UDC are
sometimes referred to herein collectively az "Owner."
~~ti~
A. Pursuant to California Government Code Section 65864, seq. ("Development
Agreement Statutes"), Margarita Village Development Company (Buie-Rancho California and
Nevada-Rancho California) and others and the County of Riverside, California ("County")
entered into Development Agreement No. 5 recorded in the Official Records of Riverside
..County, California on November 7, 1988, az Instrument No. 325515 ("Development
Agreement No: 5").
B. Development Agreement No: 5 encompasses a project formerly located within
County approved Specific Plan No. 199 known as "Margarita Village," a mixed use O',
subdivision, (the "Original Project"), to be developed on property which came within the
municipal boundaries of the City when the City incorporated on December 1, 1989. This
Agreement encompasses only a portion of the Original Project, a 472 acre residential
development located is a portion of Specific Ptan No. 199, Village A, known az Temeku
Hills Golf and Country Club (the "Project"). The balance of the Original Project covered by
Development Agreement No. 5 not included within this 472 acre portion of Specific Pian No.
199, Village A, is not amended or impacted by this Agreement.
C. Pursuant to the provisions of the Development Agreement Statutes, the City
became the successor-in-interest to the County under Development Agreement No. 5 upon
incorporation of the City. Pursuant to Tetneku Hills obtaining title to the Project az recorded
in the Official Records of Riverside County, California on May 3, 1996 az Instrument
No. 162332, and UDC obtaining title to a portion of the Project from Temeku Hills az
recorded is the Official Records of Riverside Couary, California on April 18, 1997, az
Instrument No. 132180, and p++*"+•~~t to the provisions of Development Agreement No. 5,
Temeku Hills and UDC became successors-in-interest to the "Owner" described in
Development Agreement No. 5.
__ D. Pursuant to Section 65868 of the Development Agreement Statutes, the City
and Owner propose to restate and amend Development Agreement No. 5 to substitute this
Agreement for Development Agreement No. 5, but only to the exunt Development O
Agreement No. 5 pertains to the Project.
~i
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0
- E. Pursuant and subject to the Development Agreement Statutes, the City's police
powers and City Resolution No. 91-52, City is authorized to enter into binding agreemrnu
with persons having legal or equitable interest in teal property located within the City's
municipa[ boundaries or sphere of influence thereby establishing the conditions under which
such property may be developed in the City.
F. By entering into this Agreement, City shall bind future Members of the City
Council of City by the obligations specified herein and further limit the.future exercise of
- certain govetnmrntal and proprietary powers of Members of the City Council. Likewise,
Owner shall bind iu successors in interest to the obligations specified in this Agreement
G. The terms and conditions of this Agreement have undergone extensive review
by, the staff.of the City, the Planning Cotntnission of the City, and the City Counci] of the
City and have been found to be fair,. just, and reasonable.
H. The,City fords and determines that it will be in the best interest of iu citizens
and the public health, safety and welfare will be served by entering into this Agreement.
I. .All of~the procedures and requiremrnu of the California Environmental Quality
Act relevant to this Agreement have been met
O -- 1. Riverside County Ordinance No. 659, as adopted by the City, establishes public
facilities impact fees for residential development within City ("RSA Fees"). City requires
these revenues to gtitigate the impact of development City requites RSA Fees from
development of the Property in„order. to complete>capital projecu to mitigate Ute impact of the
Project
IC Development Agreement No. 5 provided for. public facilities and services
impact fees ("County Development Agreement Fees' higher than the RSA Fees. These
higher fees, particularly during the presrnt economic situation, unduly discourage and delay
development and thereby prevent City from. ever receiving .the County .Development
Agreement Fees or RSA Fees. Consequrntiy, after extensive study, and public input and
hearings, the City has adopted a Development Impact Fee for detached uniu of $2,934 per
unit and for attached uniu of $2,114 per unit Therefore, the City is willing to reduce the
County Development Agreemrnt Fees for residential developmrnt in the Project to the level
contemplated by this Agreemrnt.
L. City and Owner acknowledge that development of the Project will result in the
grneration of municipal revenue, for public irtfrastrtrcture facilities and the enhaucemrnt of the
quality of life, including recreation facilities for present and future residrnu of the City. The
brnefiu to the City and Owner wntemplated by development of the Project intrude without
limitation:
muoauel~ftee.~~
asx.roimsmsr _3_
(1)
.. (Z)
(3)
(4)
_ (5)
(6)
completion of vacant lots in Project;
payment of signal mitigation fees;
payment of libtaty fees;
payment of park fees;
payment of Fire Protection Impact Fees; and
payment of Street System Impact Fees.
All of the fees described above are a pert of, and included within,` the Public Facilities Fce
_ contemplated herein.
M.` The City and Owner acknowledge that due to the present ewnomic situation,
none of these benefits to the City are possible unless the Project proceeds with development
N. The City Council of the City has approved this Agreement by Ordinance
No. adopted on .and effective on ("Effective Date").
On the Effective Date, Development Agreement No. 5 shall be terminated and of no further
force-and effect as to the Project only, having been replaced by this Agreement
NOW, THEREFORE in consideration of the above Recitals and of the mutual
covenants hereinafter contained and for other good and valuable consideration, the receipt and.
sufficiency of which is hereby acknowledged and incorporated herein, the patties agree:
1. ni ' In this Agreement, unless the context otherwise requires, the
following words and phrases shall have the meaning set forth below:
L 1 "City" is the City of Temecula.
1.2 "City Public Facilities Fee" is an amount established 5y Ordinance of
City as more particulazly defined in Section-12.3 of this Agreement
1.3 "City's Quimby Requiranent" [Weans Owner's obligation to dedicate
park land or pay in lieu pazk fees under Riversidt County Ordinance No. 460.93, as the same
was incorporated by refetence into the Temecula Municipal-Code by Ordinance No. 90-04, as
more particulazly defined iti Section I2.Tof this Agreement.
1.4 "Cpwty" is the County of Riverside.
1.5 "County Development Agreement Fae" mesas the Cowry public
facilities and services mitigation fee set forth in Section 4.2 of Development Agreement
No. 5.
1.6 "Development Agreement Fce" means the development agreement fee
set forth in Section 12.6 of this Agreement
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O _ l.7 "Development Exaction" means any requirement of the City in
connection with or pursuant to'any Land Use Regulation or Existing Developtent Approval
for the dedication of land, the construction of improvements or public facilities, or the
payment of fees'in order to lessen, offset, mitigate or coirrpcnsate for the impacts of
development on the environment or other public interests.
1.8 "Development Plan" means the Existing Development Approvals.
1.9 "Effective Date" means the date upon which the Ordinance approving
this Agreement becomes effective: Absent a referendum challenge, such date is thirty (30)
days following the date the City Council adopted such Ordinance.
1.10 "Existing Development Approval(s)" means those certain development
approvals relating to the Property in effect as of the Effective Date, including, without
limitation, the "Existing Development Approvals" listed in Exhibit A, attached hereto and
incorporated herein by this reference, which were approved by the County.
1.11 "Existing Land Use Regulations" means those Land Use Regulations
listed on Exhibit B,. attached hereto and incorporated herein by this reference, which are a
matter of public record on the Effective Date of this Agreement.
O __ 1.12 "Financing District" means a Community Facilities District formed
pursuant to the Mello-Roos Community Facilities Act of 1982 (California Government Code
Section 53311 Wig., Ss amended); an assessment district formed pursuant to Landscaping
and Lighting Act of 1972 (California Street and Highways Code Section 22500 et~se . as
amended);. a special assessment district formed pursuant to the Improvement Act of 1911
(California Streets and Highway Code Section 10102, as amended); or any other special
assessment district existing pursuant to Sate law formed for the purpose of ftnancittg the cost
of public improvements; facilities, services and/or public facilities fees within a speciSc
geographical area of the City.
1:13. "Hazardous Substance" shall include, without limitation, any flammable
explosives, radioactive materials, asbestos, polychlorinated biphenyls, cbemicals lmowu to
cause cancer or reproductive toxicity, substances described in Civil Code Section 2929.5(e)(2),
as it now exists or as subsequently amended, pollutants, contaminants, hazardous wastes, toxic
substances or related materials. Notwithstanding the foregoing, "Hazardous Substances" shall
not include substances customarily used in developing, operating or maintaining developments
similar to the project, provided ail such substances are used, stored, and disposed of in
accordance with all applicable laws.
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urs.aaiosms~ _5_
__ 1.14 "Land Use Regulations" means all. ordinances, resolutions, codes, rules, `
regulations, and written official policies of City, governing the development. and use of land
including without limitation: the permitted rue of land; the density or, intensity of use;
subdivision requirements; the maximum height and size of proposed buildiags;.the provisions
for reservation or dedication of load for public purposes;,and the: design, improvement, and
construction standards and specifications applicable to the development of the Property.
"Land Use Regulations" does not include any Courtly or City ordinance, resolution, code, rule,
regulation, or official policy, governing:
(a) The conduct of businesses, professions, and occttpations;
(b) Taxes, assessments and rates and charges of the City's Community
Services District; -
(c) The control and abatement of nuisances; ;.
(d) The granting of encroachment permits and the conveyance of rights and
interest which provide for the use of or the entry upon.pub$c property;
(e) The exercise of the power of emine~ domain.
1.15 "Owner" means Temeku Hills Development Partners, L.P., a limited
~- partnership, UDC.Homes, Inc., a California corporation, and any successors in interest to O
Temeku Hills and UDC
1.16 "Project" is the development of the Property in accordance with the
Development Plan.
1.17 "Property" is the real property described in Exhibit C, attached hereto
and incorporated herein by this reference..
1.18 "Remaining Uniu" means all remaining residential dwelling uniu within
the Project after the 608th such residential unit, all as more particularly described in Section
12.5(6) of this Agreement.
1.19 "RSA Fee" means the fee established by County Ordinance No. 659,
adopted 6y City by Ordinance No. 90.04.
1.20 "Subsequent Development Approvals" means all development approvals
required subsequent to the Effective Date in connection with development of the Property.
1.21 "Subsequent Land Use Regulation" mesas any Land Use Regulation
applicable to the Property adopted and effective aRet the Effective Date of this Agreement.
O
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csrs.ro~asmsr {-
O - 2. Interest of Owner. Owner represenu that it has the fee. title interest in the
Property and that all other persons holding legal or equitable interest in the Property are to be
bound by this Agreement
3. ibit . The following documenu referred to in this Agreemrnt are attached
hereto, incorporated herein, and made a part hereof by this references
Exhibit Desienation
A.
B.
C.
D.
E.
F.
4. Teem.
TZescriotion ..
Existing Development Approvals
Existing Laad Use Regulations
Legal Description of the Property
Assignment and Assumption of
Development Agreement
Notice From Mortgagee
Fee Matrix
4.1 The term of this Agreement shall corrlmrnce on the Effective Date and
shall extend for a period of ten (]0) years thereafter, unless this Agreement is terminated,
modified or extended by circumstances set forth in this Agreement or by mutual consent of
O the parties hereto.
4.2 This Agreement shall terminate and be of no force and effect upon the
occurrence of the entry of a final judgment or issuance of the' final order after exhaustion of
nay appeals, dtrected against the City as a result of any lawsuit filed against directing the City
to set aside, withdraw, or abrogate the approval by the City Cotmcil of the City of this
Agreemrnt
$, Accionmrnr
$.l Rieht to Assien. The Owner shall have the right to sell, transfer, or
assign the Property in whole or in part (provided that no stub partial transfer shall violate the
Subdivision Map Act, Govemmem Code Section 66410, et sea., or Riverside County
Ordinance No. 460, as the same was incorporated by reference into tbe Temecula Municipal
Code by Ordinance No. 90-04) to any person, partnership, joint venture, firm, or corporation
at any time during the term of this Agreement; provided, however, that any such sale,
transfer, or assignment shall include the assignment and assumption of the rights, duties, and
obligations arising under or from this Agreement and be made in strict compliance with the
following conditions precedent-.
- (a) No sale, transfer, or assignment of any right or interest under this
Agreement shall be made unless made together with the sale, transfer, or assignment of all or
O apart of the Property. Owner agrees to provide specific notice of this Agreement, including
the record or documrnt number, where a true and correct copyof this Agreement may be
~:~..~~
osrsm~rormsr _7_
-- obtained from the Riverside County Recorder, in any grant deed or other document purporting
to transfer the title or an interest in the Property during the term of this Agreement or any
extension thereof.
(b) Concurrent with any such sale; tiansfet, or assignment, or within fiReen
(IS) business days thereafter, the Owner shall notify City, in writing, of such sale, transfer, or
assignment and shall provide City with an executed agreement, in the form attached hereto as
Exhibit D, by the purchaser, transferee, or assignee and providing therein that the purohaser,
_ transferee, or assignee unconditionally assumes all the duties and obligations of the Owner
under this Agreement..,:
Any sale; transfer, or assigtrmeat not made in strict compliance with the
foregoing wnditions shall constituted a default by dre Ow~r under this Agreement.
Notwithstanding the failure of any purchaser, transferee, or assignee to execute the agreement
required by_ Paragraph (b) of this Subsection, the burdens of this Agt~eement shall be binding
upon such purchaser, transferee, or assignee, but the benefits or this Agreement shall not inure
to such purchaser, transferee, or assignee until and unless such agreemem is executed.
5.2 Release of Transferrin¢ Owner. Notwithstanding any sale, transfer, or
assignment, a transferring Owner shall continue to be obligated under this Agreement unless
such transferring Owner is given a release in writing by. the City, which release shall be
_ provided by the City upon the, full satisfaction.by such transferring Owner of ~e of the
following conditions: i . Y
(a) The Transferring Owner no longer has a legal interest in atl or any part
of the Property except as a beneficiary under a deed of trust.
(b) The Owner is not then in default under this Agreement.
(c) .The Owner or purchaser has provided City with the notice and executed
agreement required under Paragraph (b) of Subsection 5.1 above.
(d) The purohasu, transferee, or assignee has provided City with security
equivalent to any security previously provided by the Transferring Owner to segue
performance of its obligations hereunder.
(e) The Transferring Owner has reimbursed the City for any and all City
costs associated with Owner's transfer of all or a portion of the Property.
5.3 Termination of Agreement with Respect to Individual Lou upon Sale to
Public and Completion of Construction. Notwithstanding Subsectioa.5.1, or any other
provisions of this Agreement, this Agreement shall tetmioate with respect to any lot and such
lot shat) be released and no longer be subject to this Agreement without the execution or
recordation of any further document upon satisfaction of both of the following conditions:
O
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uxaoia9mn -&
O _ (a) The lot has been finally subdivided and individually (and not in "bulk")
sold or leased (for a period longer than one year) to a member of the public or other ultimate
user, and
(b) A Certificate of Oceupaoey has been issued for a building on a lot, and
the fees set forth` in this Agreement Lave been paid.
5.4 Subseaueet Assimunent Any subsequent sale, transfer; or assignment
after an initial sale, transfer, or assigtment stall be made only in accordance with and subject
to the terms and conditions of this Section.
6. Mortgagee Protection. TLe'parties Lereto agree that this Agreement shall not
prevent or limit Owner, in any manner, az Owner's sole discretion, from encumbering the
Property or any portion thereof or any improvemaat thereon by a~ mortgage, deed of trust,
or other security device securing furancing with respect to the Property. City aelmowledges
thaz the lenders providing such financing may require certain Agreement interpretations and
modifications and agrees upon request, from time to time; to meet with tLe Owner and
representatives of such lenders to negotiate in good faith any such requested interpretation or
modification. City witl not unreasonably withhold its consent to any such requested
interpretation or modification provided sucL interpretation oz modification is consistent with
the intent and purposes of this Agreement and provided further thaz the City will be entitled
O to exercise its'disrsetion in accordance with applicable law: Owner shall reimburse City for
any and all of City's reasottable costs associated with the negotiations, tntetpretadons, and
modifiptions within thirty (30) days of receipt of an invoice from City.
Any Mortgagee of the Property shall be entitled to the following tights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement
stall defeat, render invalid, diminish, or impair the Gen of any mortgage on the Property
made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagce has subautted a request is writing, in the form
as attached hereto as Exhibit E, attached hereto and incorporated herein by this reference, to
the City in the manner specified herein for giving notices, shall be entitled to receive written
notification from City of airy default by the Owner in the performance of the Owner's
obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee, in the form set forth
on Exhibit E, aztached hereto and incorporated herein by this reference, requesting a copy of
any notice of default given to the Owner under the terms of this Agreement, City shall
endeavor to provide a copy of that notice of default to the Mortgagee within ten 10 days of
sending the notice of default to the Owner. The Mortgagee shall Lave the right, but not the
obligation, to cure the default during the remaining cure period allowed such party under this
Agreement City shall have no liability for damages or otherwise to Owner, Owner's
O successor, or to any Mortgagee or successor thereof for the failure to provide such notice.
~~
uw.roirosms~ -9-
(d) Any Mortgagee who comes into possession of the Property, or any part O
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding arty othez provision of this Agreemrnt to the contrary, no Mortgagee shall
have an obligation or duty under, this Agreemrnt to perform any of the Owner's obligations or
other affirraaflve covenants of the Owner hereunder, or to guarantee such performance,
provided however, that to the extent that nay covenant to be performed by Owner is a
condition precedrnt to the perfomtance of a covenant by City, tbe performance thereof shall
continue to be a condition precedent to City's performance hereunder, and further provided
that any sale, transfer or assignment by a~ Mortgagee in possession shall be subject to the
provisions of Secdoa 5.1 of this Agreement The term of the Agreement shall not be
extended based on.the fact that a Mortgagce holds flue to the Property for all or any part of
the rum of this Agreement.
(e) Any Mortgagee. who comes into possession of the Property, or any
portion thereof, pursuant. to subsection (d) above.aad who; elects not to.a~n~*~+a the obligations
of the Owner set forth herein shall not be entitled to any rights to develop which have or may
have vested as a result of this Agreement
7. Binding- Effect of Agreemett The burdees of.this Agreement bind and the
benefits of the Agreement inure to the successors-in•interest to the parties to it in accordance
with the provisions of and subject to the limitations of this Agreement.
8. Pro4eet as a Private Undertakin¢/Reladonshin of Parties. It is specifically
understood and agreed by and between the parties herem that the development of the Project
is a private development, that neither party is an independent contracting entity with respect to
the terms, covenants, and conditions contained in this Agreement No partnership, joint
venture, or other association of any kind is formed: by this Agreement The only relationship
betwern City and Owner is that of a government enflty regulating the development of private
property and the owner of such property.
9. - Chances in Project. No change, modification, revision, or alteration of Existing
Development Approvals may be made without the prior approval of the City. City may
expand the permitted uses for the Property without amending this Agreement so long as
Owner or Owner's successor retains his/her/their existing entitlements.
10. Timin¢ of Development. The parties acknowledge that Owner: carmot at this
time predict when, or the rate at whiclt, the Property will be developed. Such decisions
depend upon numerous factors which are not within the control of Owner, such as market
orientation and demand, interest rates, absorption, completion and other similar factors. Since
the California Supreme Court held in Pardee ~nst~ucflon Co. v C[tv of Camarillo 37 Ca1.3d
465 (1984), that the failure of the parties therein to provide for the tinting of development
resulted in slater-adopted initiative restricting the timing of.developmrnt to prevail over such
parties, it is the parties' intent to cure the deficiency by aclatowledging end providing that the
Owner shall have the right to devclop the property in such order, at such rate, and at such
~um~a.ey~
ss~s.ooiasaos~ -10-
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0
- - ~. times as the' Owner deems appropriate within the exercise of its subjective business judgment,
subject only to any timing or phasing requirements set forth.in the Development Plan.
1 L . -Indemnity and Cost of Litieation.
~_ 11.1 Hold' Harmless. Owner agrees to and shall hold City, its officers,
employees, agents, and representatives harmless from liability for damage or claims for
damage for personal injury including death and claims for.property damage which may arise
- from the direct or indirect operations of the Owner or those of iu contractor, subcontractor,
employee, agents; or other person' acting on its behalf which relate to the Project, regardless
of whether or not City prepared, supplied, or approved plans or specifications for the Project
't7tis indeamification requirement shall survive the termination or expiration of this
:Agreement .
! 1.2 1ltird Party Litieation Corteernin¢' Agreement Owner shall indemnify,
protect; defend, at its expense -including attorney's fees, and hold harmless City, its officers,
employees, or agents against any loss, cost expense, claim, or counter-claim, complaint, or
proceeding to attack, set aside, void, or amid the approval' of this Agreement or the approval
of any permit granted pursuant to this Agreement brought by any third party. City shall
promptly notify Owner of any such claim,. action, or proceeding and City shall cooperate in
the defense. If Ciry falls to promptly notify Owner of any such claim, action, or proceeding,
O _.. or if City fails to cooperate in $te defense, Owner shall not thereafter be responsible to
defend, iadetmtify, or hold harmless City. City may in its discretion participate in the defense
of any such claim,. action, or proceeding.
11.3 Environmental Assurances. Owtter shall indemnify, protect, defend with
counsel approved by City, and hold harmless City, its officers, etnployees,,agents, assigns, and
any suctxssor of successors to City's interest from and against all claims, actual damages
(inclttdittg but not limited to special and consequential damages); natural resources damages,
punitive damages, injuries costs, response, remediation, and removal costs, losses, demands,
debts, liens, liabilities, causes of action, suits, legal or administrative'proceedings,~interests,
Ernes, charges, penalties and expenses (including but not limited to attorneys' and expert
witness fees and costs incurred in connection with defending against any of the foregoing or
in enforcing tfiis'indetaniry) of any kind whatsoever paid, incurred; or suffered by, or asserted
against, Ciry of its officers, employees, or agents arising from or attributable to any repau,
cleanup, of detoxification, or preparation and impleme~tion of any removal, remedial,
response, closure, or other plan (regardless of whether undertaken due to governmental action)
concerning a Harrrdous Substance or hazardous wastes eYany place within the property which
is the subject of this Agreement The foregoing indenuriry extends beyond the temt of this
Agreement and' is intended to operate as an agreement pursuant to Section ] 0?(e) of the
Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"),
42 U.S.C. Section 9667(e), and California Health and Safety Code Section 25364, and their
successor statutes, to insure, protect, hold harmless, and indemnify City from liability.
O
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asse.aixemm -11-
_ 11:4 Release: Owner; for itself, its successors and assignees, hereby releases
.the City, its officers, agents, and employees from. any, and ail. claims,, demands,,actions, or
suits of any kind or nature arising out of any liability, known or tmknowa, Present or future,
including, but not limited to, any claim;or liability, based or, asserted, pursuant to Article I,
Section 19 of the California Constitution, the Fifth Amendment of the United States
Constitution, or any. other law or orditrance which seeks°to, impose any other liability or
damage, whatsoever, upon the City because it entered into this Agreemem or-because of the
terms of this Agreement .
11.5 Reservation of Ri¢hts. With respect to Sections •1 l.l; through 11.4
herein, Ciry reserves the right to either(1) approve.the attorney(s) which Owner selects, hires,
orothetwise engages to defend City hereunder,;which approval•shall not be unreasonably
withheld, or (2) conduct its own defense, provided, however, the Owner shall reimburse City
forthwith for any and all reasonable expenses incurred for such defense, including attorney's
fees, upon billing and accounting ffierefor. ,;
11.6 Survival. The provisions of this Section 11.I to 11.6, inciusive, shall
survive the termination of this Agreement ,
12. Public Benefits. Public Imorovemenu and Facilities. "
__ 12.1 tent. The parties. acknowledge and•agree that. this Agreement roofers
private benefits on the Owner which should be balanced by commensurate public benefits. O
Accordingly, the parties intend to provide consideration to the public. to balance the private
benefits conferred on the Owner by providing more fully for the satisfaction of the public
needs resulting from development of the Project..
12.2 Quimbv Requirement Temeku Hills shall satisfy its obligations to
dedicate park land or pay in lieu park fees under Riverside. County Ordinance No. 460.93, as
the same was incorporated by reference into the Temecula Municipal Code by Ordinance
No. 90-04 ("City's Quimby Requirement").as follows: , .
(a) Temeku Hills shah dedicate to fire City land for a fitlly improved park to
be used for recreational purposes in accordance with the City's.Quimby Requirement, in a
size to be determined as set forth below, prior to the issuance of the 608th building permit for
residential:dwelling units in the Project The size of Ure park described above is this Section
12.2(x) shall be calculated in the following ttranner.
(i) Multiply the number of dwelling uniu in the Project by 2.59 (the
average number of persons per dwelling unit), and then divide that sum by 1,000. .
(ii) Multiply the quotient obtained by the calculation in subparagraph (i)
above by five (5) (the number of acres required per 1,000 people).
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O
O ._ _. (iii) The result of the multiplication obtained in sub-paragraph (ii)
above shall constitute the siu of the park to be dedicated by Temeku-Hills to the City, subject
to reduction for the credits set forth is Section 12Z(b) below.
(b) The park described is Section 12.2(a) above shall be reduced in siu by
the following credits:
(i) An acrerge credit determined by multiplyinge.the size of the park
detetatined in accordance with Section 12.2(a) by, twenty-five percent: (25%) for,the Temeku
Hills Golf Course located within the ProjecK.
(ii) A 2.5 acre credit for Veterats Parka
(ii) ,An acreage credit of 1.10 acres determined by multiplying the 2.2
acre common recreational facilities located within the Project by fifty percent (50%).
(c) By way: of example only, if the number of dwelling units. in the Project
is 1,449, the size of the park to be dedicated. by Temeku hills to the City pursuant to this
Section 12.2 shall be as follow:
1,449 dwelling units x 2.59 persotu, divided by 1,000, multiplied by 5 acres = 18.76
acre pazk;
O _ 18.76 acre pazk, less the following credits:
(4.69) acre credit (25% golf course credit x 18.76 acre park)
(2.50). acre credit for Veterans Pazk
(1.10) acre credit for the common recreational facilities (2.2 acres x 50%).
10.47 acre park required
(d) Upon dedication of the land for a park as provided in Section 12.2 (a)
above, Temeku hills shall design and complete construction of park improvements thereon
similar to other public parks of the same size and class~rztion prior to the issuance of the
608th building permit for residential dwelling units in the Project.
12.3 Public Facilities Fee. In lieu of the Cotmty DevelopmentAgreement
Fee, Owner shall pay the City Public Facilities Fee for residential units as follows:
(a) For each detached dwelling unit, the amount of Two Thousand Nine
Hundred and Thirty-Four Dollars ($2,934.00), inclusive of Street System Impact Fees
($729.00), .Traffic Signal and Trafftc Control System Fees ($109.00), Parks and Recreation
Impact Fees (51,611.00), Corporate Facilities.Impact Fees ($222.00), Fire Protection Impact
-- Fees ($55.00) and Library Impact Fees.($208.00). -
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_ (b) For each attached dwelling unit, the amount of Two Thousand One O
Hundred and Fourteen Dollars ($2,114.00), inclusive of Street System impact Fees ($511.00),
Traffic Signal and Traffic Control System Fees (577.00), Parks and Recreation Impact Fees
($1,209.00), Corporate Facilities Impact Fees ($118.00), Fire Protection Impact Fees ($42.00)
__ and Library Impact Fees ($156.00).
The City Public Facilities Fce shall be paid az provided in Section 12.8 below.
Owner expressly.aeknowledges the existence and holding in the case of Kaufman and Broad
Central:Vallev. free. v. City. of Modesto. (1994) 25 Ca1.App.4th 1577,tas it applies to later
adopted fees. Owner hereby waives for himseb; and for any successor thereto, the right to
challenge the validity or amount of any such other public facilities fees which are enacted and
applied to residential development projects in the Gty. Such waiver applies to the Project
lI$4[ the City Public Facilities Fce has been enacted by the City and applied to residential
development projects in the City. Owner acknowledges and agrees that the City would not
have entered into this Agreement if-its application or operation would limit in any way the
City's ability to develop and apply a Comprehensive Public Facilities Fce Program to this
Project .Owner further acknowledges and agrees that the waiver provided herein applies not
only to this Agreement, but to_any rights Owner may have under any vesting map filed and
deemed complete under the vesting maps statutes, Government Code Section 66498.1 et sea.
Finally, Owner agrees that the institution of nay legal action by Owner, or any successor
thereof, to challenge the validity, amount, or application of the City Public Facilities Fee,
__ including paying such fees "under protest" pursuant to Government Code Section 66020 et
gam, shall constitute a material breach and default under this Agreement entitling the City to O
summary termination hereof.
12.4. Public Facilities Fee Adiustment. The fees requiied by Section
12.3 above shall be adjusted annually during the term of this Agreement on the anniversary of
the Effective Date in accordance with the changes in the Consumer Price rndat for All Urban
Consumers in the Los Aageies-Anaheim-Riverside Area (hereinafter CPI) published monthly
by the U.S. Bureau of Labor Statistics. The annual adjustment shall be calculated in the
following taanner:
(a) Divide the CPI for month and year of the Effective Datc into the CPI
for the month immediately preceding the anniversary in which-the fees are to be adjusted.
(b) Multiply the quotient obtained by the calculation in sub-paragraph (a)
above times the fees to be adjusted.
(c) The result of the multiplication obtained in sub-paragraph (b) above
shall constitute the fees payable during the succeeding year.
If the CPI specified herein is discontinued or revised during the term of this
Agreement, such other government index or computation with which it is replaced shall be
- used in order to obtain substantially the same result az would have been obtained if the CPI
had not been discontinued.
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0
___ In no event shall the fees.after adjustmrnt be less than the fees set forth in
Section 12.3 above.
12.5 Public Benefits and Credits. In consideration of Temeku Hills
dedicating, designing and improving a public park, providing the existing Veterans Park and
setting aside substantial private usable open space within the Project, all as more specifically
set forth in Section 12.2 above, Temeku Hills shall be entitled to an offseragainst the Park
and Recreation Impact Fees paid by Temeku Hills as a componrnt of fire City Public
_ Facilities Fee for the actual costs expended by Temeku Hills for the design and constntccion
of the park described in Seerion` 12.2 above {as evidenced by actual third party invoices),
including a reasoeable overhead burden of 10% of such actual costs (the "Park Fee Offset").
As a result of the Pazk Fee Offset, the Park and Recreation Impact Fees paid as a component
of the City`PUblic Facilities Fee shall be affected'in the following manner:
(a)" Eliminated for the first 608 building permiu issued to Owner for
residential dwelling units within the Project; and
(b) Eliminated for the number of building pettnits issued to Temeku Htlls
for residential dwelling units constructed in excess of 608 units until such time as the Park
Fee Offset has been exhausted
O _ (e) By way of example only, assuming the cost to improve the park
described in Section 12.2 above is Oae Million Five Hundred Thousand Dollar ($1,500,000),
and the Park and Recreation Impact Fee, including the Development Agreement Fce, is
$1,772.10, the number of building pemuts in excess of 608 uniu to be issued to Tetneku Hills
for which the Park and Recreation Impact Fees component of the City Public Facilities Fee
would be eliminated as a result of the Park Fee Offset is as follows: _
$1,772.10 pazk fee x 608 dwelling uniu = $1,077,436.80
$1,100,000 park improvements - $1,077,436.80 = $422,563.20 Park
Fee Offset
$422,563.20 Park Fee Offset ~ 51,772.10 park fee = 238.45 building
pemtits in excess of 608 issued for which no Park and Recreation
Impact Fees would be paid (for a total of 846.45 building permits for
which no Park and Recreation Lttpact Fees would be paid including the
fast 608 building permits)
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- 12.6 I,~evelooment Agreement Fee. In consideration of the City granting to
Owner the rights and benefits contained within this Agreement, Owner shall pay to the City a
development agreement fee in an amount equal to ten percrnt (10%) of each componrnt of
the City,Public Facilities Fee described in Section 12.3(x) or 12,3(6), as the same may be
increased from-dime to time pursuant to: Section 12.4,.above (the "Development Agreement
Fee"),::The Development Agreement Fee shall. be added to the City Public Facilities Fee and
paid as;proyided in Section 12.8 below..
12.7 Fee Matrix.. Attached hereto as Exhibit F u,a Fee Matrix showing the
City Public Facilities..Fee, and the individual components ti-ereol;.the credits applicable to the
City Public Facilities Fee, andcomponrnss thereof, and the Development Agreement Fee.
12.8. ~'iming: The.City Public Facilities Fee shall be paid at the time of
issuance of building permits for each residential unit constructed on the Property. Collection
of any and all interim,Public FaciUties Fees, or component thereof (or when combined with
the Park and Recreation Impact Fees) paid by the Owner for ap home uaiss constructed prior
to adoption of this Agreement, in surplus to those fees contained herein, shall be credited to
Owner.
12.9 Other Avolicable Fees.
_ (a) Owner also shall pay all other customary and typical development
exactions, for a project of this siu and nature, in existence as of the Effective Date and
throughout the term of this Agreement, not included in the:City Public Facilities Fce, pursuant ~.
to provisions of City ordinances and resolutions in existence whrn paid.
(b) The parties hereto agrce that to the extent the applicable Stephen's
Kangaroo Rat and drainage fees have not been paid prior to the execution of this Agreement
by both parties, those fees remain applicable to the Project.
12.10 Public Works. If Owner is required by this Agreement or any other
obligation, to construct any public works facilities which will be dedicated to City or :.ny
other public agency upon completion, and if required by applicable laws to do so, Owner
shall perform such work in the same manner and subject to the same requiremenss as would
be applicable to City or such other public agency should it Gave undertaken such construction.
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O ...__ 12.11 fe ce. In the event the City approves, enacts or applies a City
Public Facilities Fee or any component thereof, in an amount which is less than the amount(s)
provided in Section 12.3 above, or if the City approves, enacts or applies a City Public
Facilities Fce or any component thereof, for any other detac}ted residential dwelling units in
ap amount which is less than applicable to the,Project, or if the,Gity approves, enacu or
applies a Development Agreement Fee which is less than provided in this Agreement, or if
the City approves, enacts or applies any other fee which serves the same or similar purposes
of the Development Agreemem Fee, or the City Public Facilities Fee in an amount which is
less than provided in this Agreement, the City shall adjust the amounu of the City Public
Facilities.Fee, and/or Development Agreement Fee applicable to the Project to equal the lesser
fce amount(s). If any attached dwelling units are coacttucted in the Project, the City agrees to
apply the adopted components and fees for attached residential units with the same
proportional adjustrnents and credits as set forth in.Section 12 of this Agreement
13. Reservation of Authority.
13.1 Limitations. Reservations. and Exceptions. ,Notwithstanding any other
provision of the Agreement, the following Subsequent Land.Use Regulations shall apply to
the development of the Property:
(a) Processing fees and charges imposed by City to cover the estimated
actual costs to City of processing applications for Subsequent Development Approvals.
O - (b) Regulations governing construction standards and specifications
including without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code, and Fire Code.
(c) Regulations which are IdOT in conflict with the Development Plan.
Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of
development of the Property shall be deemed to conflict with the Development Plan and shall
therefore not be applicable to the development of the Property. .
(d) Regulations which aze in conflict with the Development Plan, provided
Owner bas given writtrn consent to the application of such regulations to development of the
Property.
13.2 Subsequent Development Approvals. T7»s Agreement shall not prevent
City, in acting on Subsequent Developmem Approvals, from applying the Subsequent Land
Use Regulations which do not conflict with Ute Development Plan, nor shall this Agreement
prevent City from denying or conditionally approving any Subsequent Development Approval
on the basis of the Existing or Subsequent Land Use Regulations not in conflict with the
Development Plan.
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13.3 'Modification or Suspension by State or Federal Law. In the event that ~ O
State or Federal laws or regulations enacted after the Effective Date of this Agreement
prevent or preclude compliance with one or more of the provisions of this Agreemen; such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such State or-Federal laws or regulations. [n that even; however, this Agreement shall
remain in frill 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. ,
13.4 Reeulation'by Other Public Agencies. It is acknowledged by the parties
' that other public agencies not within the controi of City possess authority to regulate aspects
of the development of-the Property separately from or jointly with City and this Agreement
does not limit t}ie authority of such other public agencies.
13.5 Tentative Tract Man Extension. Pursuant to the provisions of
Section 66452.6 of the Government Code, any current or future tentative subdivision map(s)
or tentative pamxl map(s) {vested or regular) approved as a part of implementing the
Development Plan, including without limitation Revised Tentative Tract Map 23371, shall be
extended to expire at the end of the term of this Agreement
13.6 .Vesting Tentative Mans. If any tentative or fmal subdivision map, or
tentative or final parcel map, heretofore or hereafter approved in connection with the ,~
development of the property, is a vesting map under the Subdivision Map Act (Government
Code Section 664).0, et seal and Riverside Cou~y Ordinance No. 460, as the same were
incorporated by reference into the Temecula Municipal Code by Ordinance No. 90-04, and if
this Agreement is determined by a final judgment to be invalid or unenforceable ittsofaz as it
grants a vested tight to develop to the Owner, then and w that extent the rights, obligations,
and protections afforded the Owner and City respectively, under the laws and ordinances
applicable to vesting snaps shall snpersede provisions of this Agreement Except as set forth
immediately above, development of the Property shall occur only a9 provided in this
Agreemen; and the provisions in this Agreement shall be controlling over conflicting
provisions of law or ordinances concerning vesting maps.
13.7 Tentative Tract Macs -Perimeter Walls. The conditions of approval for
tentative subdivision map(s) or tentative parcel trap(s) (vested or regular) approved as a part
of implementing the Development Plaa shall be amended to provide that the construction of
perimeter walls gad installation of landscaping and irrigation systems, that would otherwise be
required to be completed prior to the construction of any residential dwelling units, shall be
constructed in phases as the adjacent tracts are developed within the Project.
13.8 Maintenance of Protect Land-esa*_+e Areas. Owner shalt fonn a
homeowners' association which shall maintain all landscape areas within the Project including,
without limitation, all block walls and entry monuments located within the Project
Notwithstanding the foregoing, the City acting through its Community Services District and
upon compliance with alt applicable laws including, without limitation, any necessary public O
voting procedures, shall consider maintaining all exterior landscape areas (excluding block
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O-- walls and entry monuments) within the Project adjacent to main collector streets having
widths of sixty-six feet (66') or larger. Unless these areas are accepted by the City's
Community Services District for maintenance, they will be maintained by the homeowner's
association. .
13.9 Margarita Road Reimbursement Owner's obligation to reimburse the
City for the cost of "constructing certain roadway improvements to the east side of Margarita
Road from Rancho California Road to La Serena shail.be $1$5.00 per residential unit
- applicable to the'first 800 residential units constructed is the Project, all as more specifically
set forth in that certain Reimbursement Agreement recorded in the Official Records of
Riverside County on-July 14, 1994, as IpstrtartenYNo..28I356.
13.10 Modified Street See6otu: The Existing Development Approvals
incorporate the conversion of previously designated"private streets" within the Project to
public streets. To accommodate the conversion of private streets to public streets within the
Project, apd as more fully set forth in the Existing Development Approvals, the City has
approved one type ofmodified street sections for Tracts 23371-1 through 23371-7, and
another type of modified street sections for the remainder of the Project.
13.11 ~ Park Improvement Agreement and Sectaity. For park improvements,
recreation facilities, slopes and landscaping proposed for dedicanon to the City's Community
Services District pursuant to this Agreement, Owner-shall enter into an Improvement
O Agreement and post securities for said improvemems concurrently with the recordation of the
tracts where the improvements are located.
14. j~evelopment of the Property. Yestina. Termination of Development Agreement
No. 5
14:1 $~jghts to Develop. Subject to the terms of this Agreement, including
payment of the City PubIIc Facilities Fee and the Development Agreement Fee, the Owner
shall have a vested right to develop the Property in accordance with, and to the extent of the
Development Plan. The Project shall remain subject to all Subsequent Development
Approvals required to complete the Project as contemplated by the Development Plan. Except
as otherwise provided in this Agreement; the permitted uses of'the Property, the density and
intensity of use, the maximum height and size of proposed buildings, and provisions for
reservation and dedication of land for public purposes shall be those set forth in the
Development Plan. In exchange for the vested right to develop p~a~»^t to this Agieemem,
Owner expressly waives for himself and for any successor thereto, the right to challenge or
contest the validity of any condition of approval attached to any entitlement which is a part of
the Development Plan.
14.2 Effect of Agreement on Land Use Regulations. Except as otherwise
_ provided under the terms of this Agreement, including the payment of the City Public
Facilities Fee, the rules, regulations, and official policies governing permitted uses of the
O Property, the density and intensity of use of the Property, the maximum height size of
proposed buildings, and the design, improvement and construction standards and specifications
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- applicable to development of the Property shall .be Existing Land, Use Regulations. City shall ~ -'
.exercise its lawful reasonable discretion in connection with Snbsequeni Development
Approvals in accordance with the Development Plan, and az provided' by this Agreement
including, but noc limited to, payment of the City Public Facilities Fee and the Development
Agreement Fce. City shall accept for processing, review, and action all applications for
Subsegtteat Development Approvals; and such applications shall be processed in the normal
manner for processing such -matters. City may, at the, request of Owner, contract for planning
and engineering consultant services to expedite the review and processing of Subsequent
Development Approvals, the cost of which shall. be home by Owner:
14.3 Chances and Agreements. The parties acknowledgethat.refinement and
fiuther development of the Project will require Subsequent Development Approvals and may '
demonstrate that changesare appropriate and mutuallx desirable in the Existing Development
approvals. In the-event the Owner fords that a change in the Existing-Development Approvals
is necessary or appropriate, the Owner shall apply for a Subsequent Development Approval to
effectuate such change. If approved, any such change in the Existing Development Approvals
shall be incorporated herein az addendum to this Agreement and may be further changed from
time to time az provided in this. Section. Owner, shall, within thirty. (30) days of written
demand by City, reimburse City for any and all reasonable costs, associated with any
amendment of change,to this Agrcemeat that is initiated by Owner or Owner's successor --
without regard to the outcome of the request for amendmentor change to.this Agreement
- Unless otherwise required by law, as determined in City's reasonable discretion, a change to
the Existing Development Approvals shall be deemed "minor" and not require an amendment
to this Agreement provided such a change does not: -
(a) Alter the permitted uses of the Property az a whole; except as provided
in Section 9 hereof, or,
(b) Increase the density or intensity of use of the. Property az a whole; or,
(c) Increase. the maximum height and size of permitted buildings; or,
(d) Delete a requirement for the reservation or dedication of land for public
purposes within the Property az a whole; or,
(e) Constitute a project requiring,a subsequent or a supplemental .
Environmental Impact Report pursuant.to Section 21166 of the,Public Resources Code.
14.4 Termination of Development Agreement No. 5. Both the City and the
Owner agree that on the Effective Date of this Agreement, Development Agreement No. 5
shall be terminated and of no further force or effect az to this Project only, having been
replaced by this Agreement
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O __ 15. Periodic Review of Compliance with Aureemmt.
(a) Pursuant to City Resolution No. 91-52, as it may be svbseq»ently
amrnded, Ciry shall review this Agreement at least once during every twelve (12) month
period from the Effective Date of this Agreement The Owner or successor shall reimburse
City for the reasonable and necessary costs of this review, within thirty (30) days of written
demand: from City.
(b) During each periodic review by City, the Owner is required to
demonstrate good faith compliance with the terms of this Agreement The Owner agrees to
famish such evidence of good faith compliance as City in the exercise of its discretion may
require.
16. ~inancine District. Upon the request of Owner, the parties shalt cooperate in
exploring the use of special assessment districts and other similar Financing Districts for the
financing of the construction,_improvement; or acquisition of public infrastructure, factlities,
lands; and improvements ao serve the Project. and its residents, whether located within or
outside the Property. It is aclmowledged that nothing contained in this Agreement shall be
construed as requiring City or City Council to form such a district or to issue or sell bonds.
1:7. Agreement or,Cancellation of Asteemrnt This Agreement may be amended or
_ canceled is whole or in paR only by mutual consent of the parties and in the **+n~*~.r provided
for in Government Code Section 65868.. If an amendment is requested by the Owner or its
O successor,"the Owner/successor agrees to pay City any. Development Agreement
processing fee
.then in existence as established by City Council.Resolution, or if no such fee is established, to
..reimburse City for the actual and reasonably necessary vests of reviewing and processing the
Agreement within thirty (30) days of written demand from City -without regard to City's
action on such amendmrnt "
18. Enforcement Unless amended or canceled as herein provided, this Agreement
is enforceable by any party to it, notwithstanding achange in the applicable general or
specific plan, zoning, subdivision, or building regulations adopted by-the City.
19. Events of Default. Owner is in default under this Agreement upon the
happening of one or. more of the following events or wnditiorrs:
(a) If a warranty, .representation, or statement made or furnished by Owner
to City is false or proves to have been false in any material respect when it was made;
(b) More than forty-&ve (45) days have passed since City's making of a
written request to Owner for payment or reimbursement for a fee or service authorized or
agreed to pursuant to this Agreement
(c) A fording and determination by City that upon the basis of substantial
evidence the Owner has not complied in good faith with one or more at the terms or
O conditions of this Agreement.
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_ 20. Procedure Upon Default. ?~_
(a) Upon the occurrence of an event of default, City may terminate or
modify this Agreement in accordance with the. procedure adopted by the City.
(b) City does not waive:any claim of defect in performance by Owner
implied if on periodic review the City does not propose to modify or terminate this
Agreement.
(c) Non-performance shall not be excused because of a failure of a third
person.
(d) Non-performance shall be excused only when it is prevented or delayed
by acts of God or an emergency declared by Governor. .
(e) AU other remedies at law or equity which are not otherwise provided
for in this Agreement or in City's regulations.govemit-g development agreements-.are available
to the parties to pursue in the event;there is a breach.
21. $emedics. In general, each of the parties hereto may pursue any remedy at law
or equity available for the breach of any provision of this Agreement, except that City, and its
_ officers, employees and agents, shall not be liable in damages to Owner or to any assignee,
transferee of Owner, or any other person, and "Owner covenants not to sue or claim airy
damages for breach of that Agreement by City: It is acknowledged by the parties that City
would not have entered into .this. Agreemenn if it were to be liable in damages under or with
respect to this Agreement or the application thereof Owner, for himself' or any successor
thereto, expressly waives the right to seek damages against the City or any officer, employee
or agent thereof, for any default or breach of this Agreement
22. Attomevs Fees. and Cosa. If legal action by either party is brought because of
breach of this Agreement or to enforce a provision of this .Agreement, the prevailing party is
entitled to reasonable attorneys fees and court costs.
23. tices. All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by certified mail postage prepaid and presumed
delivered upon actual receipt by personal delivery or within three (3) days following deposit
thereof in United States Mail. Notice required to be given to City shall be addressed as
follows:
To City: City of Temecula
P.O. Box 9033
Temecula, CA 92589-9033
Attention: City Cierk
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O _ _ With a copy to: Peter M. Thorson, City Attorney-
Richards, Watson & Gershon
A Professional Corporation .:
.;,. 333 So..Hope Street, 38th.Floor
°Los Angeles,:CA 90071-1469"
Notices required to be given to Owner shall, be addressed as follows:
~.
To Owner.. .. , . , . •-
Temeku Hills Temeku Hills Development Partners, L.P.."
•. 2727 Hoover Avenue ... •
National City, CA 91950 ":
Attention: James H. Hunter, Senior Vice President
With a copy to: Lorenz Alhadeff Cannon &"Rose, LLP
27555 .Ynez Road, Suite 203
Temecula, CA 92591
_ Attention: Samuel C. Alhadef~ Fsq. ,
UDC: UDC Homes,. Inc.
438 Camino.Del Rio South, Suite 112B
_ San-Diego, CA 92108-3546
O Attention: Jon Werner, Division President"
With a copy to: Hecht; Solberg, Robinson & Goldberg
600 West Broadway, 8th Floor, , .
San Diego, CA 92101 -
Attention; Dairyl O. Solberg, Esq.
A parry may change the address by giving notice in writing"to the other party in the manner
provided for herein, and thereafter notices shall be addressed and transmitted to the new
.. .address.
• 24. Coororation. City agrees that it shall accept for processing and promptly take
action on all appiications,.provided they are in a proper; form and,acceptable for required
processing for discretionary permiu, tract or parcel traps, or other land use entitlement for
development of the Project in accordance with the provisions of this Agreement City shall
cooperate with.Owaer in providing expeditious review of any such-applicatiotu, permits, or
land use entitlement and, upon request and payment of any costs and/or extra fees associated
therewith"by Owner, City. shall assign to the Project planner(s), building inspector(s), and/or
other staff personnel as required to insure the timely processing arrd completion of the Project
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'.y
25. vfisaellaneous Provisions.
25.1 Recordation of Agreement. This Agreement and any amendment or
cancellation thereof shall be recorded"with the Connty Recorder by the City Clerk within the
period required by Section 65868:5 of the Governmrnt Code.
25.2 Entire Agreement -This Agreement sets forth and contains the entire
understanding and agreement of the parties, and there are no oral or written representations.
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein No testimony or-evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms.or conditions of this Agreement
25.3 Severability. If any term, provision, covenant or condition of this
Agreement shall be detefnrined invalid, void or unenforoeable, the remainder of this
Agrcement shall not be affected thereby to the 'extent such remaining provisions are not
rendered impractical to perform taking into consideration the purposes of this Agreement
Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 12 of
this Agreement, including the payment of the fees set forth therein, are essential elements of
this Agreement and City would not have entered. into this Agreement but for such provisions,
and therefore in the event such provisions=are determined to be invalid, void or unenforceable,
this ernire Agreement shall be nail and void and of no force and effect whatsoever.
23.4 Interoretation and Governin¢ Law. This Agreement and any dispute O
arising hereunder shall be governed sari interpreted'in accordance with the laws of the State
of California. This Agreement shall be constrtrod as a whole according to its fair language
and common meaning to achieve the objectives and purposes of the parries hereto, and the
rule of construction to the effect that ambiguities are to be resolved agaiasi the draining patty
shat! not be employed in interpreting this Agreement, all parties having been represented by
counsel in the negotiation and preparation hereof.
25.5 Section Headin¢s. All section headings and subheadings are inserted for
convenience only and shall not affect any coctsntrction or interpretation of this Agreement
25.6 Sinaulaz and Plural. As used herein, the singulaz of any word includes
the plural: .
. 25.7 -Joint and Several Obli¢ations. If at any time during the term of this
Agreement the Property is owned, in whole or is pact, by more than one Owner, all
obligations of such Owners under this Agreemrnt shall be joint and several, and the default of
any such Owner shall be the default of all such Owners. Notwithstanding the foregoing, no
Owner of a single lot which has been finally subdivided and sold to such Owner as a member
of the general public or otherwise as an ultimate user shall have any obligation under this
Agreement except as provided under Section 5 hereof.
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O ... 25.8 Time of Essence. Time is,of the essrncc in the performance of the
.provisions of this Agreement as to which.time is an elemrnt.
25.9 .. Waiver. Failure by a party to insist upon the strict performance of any
of the provisions of this Agreemrnt by tbe other party, or the failure by a party to exercise its
rights upon the default of the other party; shall not constitute a waiver of such party's right to
insist and demand strict compliance by the other party.with the terms of this Agreement
thereafter. .
25:10 No Third-Party Beneficiaries: This Agreement is made and entered into
for the sole protection and benefit of the parties and their srtccessots and assigns. No other
person shalt have any right of action based upon any provision of this Agreemrnl.
25.11 Force Maieure. Neither party shall be deemed to be in default where
failure or delay in performance of airy of its obligations under this Agreement is caused by
floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other
labor difficulties beyond the parry's control ("mclttding the party's employment. force),
governanrnt regulations, court actions (such as restraining orders or injunctions), or other
causes. beyond the party's wntrol. tf any.such evrntsshall occur, the term of this Agreement
and the time for performance by either party of any of its obligations hereunder may be
extended by the written agreement of the parties for the period of time that such events
O _ _ prevented such performance, provided that the term of this Agreement shall not be extended
under arty circtmrstaoces for more than five (5) years.
25.12 Mutual Covenants. The covenants contained herein are mutual
.covenants and also constitute conditions to the concurrent or subsequent performance by the
party bencfitted thereby of the covenants to be performed hereunder by such brnefitted party.
25:13. Successors in Interest. The burdens of this Agreement-shall be binding
upon, and the benefits of this Agreement shall inure to, alt successors in interest-to the parties
to this Agreement. All provisions of this Agreement shall be enforceable as equitable
servitude and constitute covenants caroling with the land. F.aeh covenant to do or refrain from
doing some act hereunder with regard to development of the Property: (a) is for the benefit of
and is a burdrn upon every portion of the Property; (b) rtms with the Property and each
portion thereof, and (c) is binding upon each party and each successor in interest during
ownership of the Property or any portion thereof.
25.14 Countemarts. This Agreement maybe cxecuted by the parties in
counterparts, which counterparts shall be construed together and have the same effect as if all
of the parties had executed the same instrument.
25.15 Jurisdicrion and Venue. Any action at law or in equity arising under
this Agrccmrnt or brought by an party hereto for the purpose of enforcing, construing or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of itiverside, State of California, and the parties hereto waive
O all provisions of law providing for the filing, removal or change of venue to any other court.
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25.16 Further Actions and (nstroments. Each of the parties shall cooperate
with and provide reasonable assistance to the other to the extent contemplated hereunder in
the performance of all obligations under this Agreement and the satisfaction of the conditions
of ibis Agreement. • Upon the request of either party at any time, the other party shall
promptly execute; -with acknowledgment or affidavit if reasonably required, and file or record
such required instruments and writings and take any actions as may be reasonably necessary
under the terms of this Agretattent to carry out the intent and to fulfill the provisions of this
Agreement or to evidence or consummate the transactions contemplated by this Agreement.
25.17 Eminent Domain. No provision of this Agreement shall be construed to
limit or restrict the exercise by City of its power of.eminent-0omain.. .
• 25.18 t4grreement for Service of Process. Ia the event owner is not a resident
of the Stateof California of it is ao association, partnership or joint venture without a
member, .partner or joint venturer rrsidemt of the State of California; or it is a foreign
corporation, then in any such everrt, Owner shall file with the Planning Drrector, upon its
execution of this Agreement, a devgnation of a natural person residing in the State of
California, giving his or her name, residence and business addresses,. as its agem for the
purpose.of service of process in any court acoion arising out of or based upon this Agreement,
and the delivery to such agent of a copy of any process-in any such.actioa shall: constitute
valid service-.upon,Owner. If for any reason service of such:process upon such-agent is not
feasible, then in such went Owner may be personally served with such process out of this
County and such service shaA wnseitute valid. service upon owner. Owneris amenable to the n
process so served,,subatits to the jurisdiction of the Court so obtained and waives any and all ~-/
objections and protests thereto.
26. Authority to~Execute. Each party hereto expressly warrants and represents that
he/she/they hasRtave the authority to execute this Agreement on behalf of his/her/their
corporation, Partnership, business entity, or govemtnental entity and warrants and represents
that he/shehhey has/have the authority to bind his/her/their entity to the performance of its
obligations hereunder.
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IN WITNESS ~+HEREOF this Agrcement has been executed by the authorized
_ representatives of the parties hereto.
•MTCIh
CLli•.lltyl oaf Temecula
,. By.
Patricia H. Birdsall, Mayor
ATTEST:
Jun6 S. Greek, City Clerk
APPROVED AS TO FORM:
Peter M. Thorson; City Attorney
O
[Notary Required]
[SIGNATURES CONTINUE ON NEXT PAGE]
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_. - "OWNER" .
Temeku Hills: Temeku Hills Development Partners, L.P.,
a California limited partnership
By: McMillin Project Services, Inc.,
a California corporation, as Attorney-in-fact
Under Durable Power of Attorney
sy:
Its:
UDC: UDC Homes, Ine.,
a California corporation
By:
Its:
By:
[Notary Required)
sy:
Its:
Its:
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O
__ EXHIBIT A
CITY OF TEMECULA
COWDIT101MS OF APPROVAL
Revised September $ 1997
Planning Application No. PA97-0180 (Amondment Mo. 3 to Specific Plan No. 199)
Project Description: A reduction of darall'mg unka from 4,047 unka to 3,922
unka; a roducdon of avenge pmpoaed for cormreereial
deve~apmant from 13.7 avow to 6.2 acres leliminating the
commercial uses on 7.5 avow of the oo'thxreat comer of
Meadows Perhvaay and Rancho CaRfomia Road) all with
Spseffie Plan Rlo. 199 - Margarita Village
PLANNING DEPARTMENT
General Requirements
ra+:. .. .
1. The developer/applicant shall indemnify,. protect, defend, and.hold harmless, the City
and any agency or instrumentality.thareof, and/or any of its officers, employees and
O _ agents from any and all claims, actions, or proceedings against the. City, or any agency
or instrumentality thereof, or any of ks officers, employees and agents, to attach, set
aside, void, annul, or seek monetary damages resuking from an approval of the City, or
any agency or instrumentality thereof, advisory agency, appeal board or legislative body
including actions approved by the voters of the City, concerning Planning Application
No. PA97-0160 (Amendment No. 3 to Spee'rfie Plan No. 199) which action is brought
within the appropriate slalom of limitations period and Public Resources Code, Division
13. Chapter 4 (Section 21000 ~ fig., including but not by the way of limitations
Section 21152 and 211671. City shall promptly notify the developer/applicant of any
claim, action, or proceeding brought within this lane period. City shall further cooperate
fully in the defense of the action. Should the City; fail to either promptly notify or
cooperate fully, ,developer/applicant shall not, thereafter be responsible to indemnify,
defend, protect, or hold harmless the City, any agency or instrumentality thereof, or any
of its officers, employees, or agents.
2. The applicant shall comply wkh all underlying conditions of approval for Specific Plan
No. 199 and its amendments uhless superseded by these conditions of approval.
3. The text of Amendment No. 3 to Specific Plarr No. 199 shall conform with Exhibit A,
'Margarita Village Amendment No. 3 of Margarita Village Specific Plan No. 199," dated
August 1997, or as amended by these eondkions.
4. The text of Amendment No. 3 to Specific Plan No. 199 Zone Standards shall conform
_.. with Exhibit B, "Margarita Village Amendment /!3 to Margarita Village SP Zone
O Standards." dated August 1997, or as amended by these conditions.
5. Maintenance of common areas and slope areas shall be provided in accordance with
R'ISiAFrRPn16uPA9r.WA IWIH7 rd
~o
- - Exhibit F -Maintenance Responsibility Exhibit.
6. No construction shall occur within .Planning Area 42 of Specific Plan No. 199 without
the proponent first tiling Development Plana for City review and approval, unless single
family detached homes are proposed on each of the fifteen 115) lots.
7. Tum-in garages forstandard vehicles era limited to lots with a frontage width of 45 feet
or wider.
Within Thirty (30) Days From the Second Riding of The Ordinance Approving the Amendment
8. The applicant shall submit the Amended Specific Plan text to the Planning Department.
TEAAECULA COflAMUWfTY SERVICIES DISTRICT
..
Community Services offers the following Conditions of Approval for the aforementioned
Specific Plan Amendment for Temeku Hills:
GEPoERAL REO:UIRERAEMTS:
9. The park land dedication reQuirement (Quimby) for the Temeku Hills Development shall
be satisfied with the 'development and dedication of an approximately 12.5 sae
community-park located within Planning Area 44. O
- (Amended by the Planning Commission, September B, 19971
10. "The design of the community park in Planning Area 44 ehall'be in conformance with the
conceptual design idehtifrad within the Specific Plan. The actual park size shall be
determined upon submittal if the subdivision maps for the area.
'11: Ballfield lighting shall be provided at the Community Park to allow far night use of the
playing fields. The developer, or his successor, shall provide a disclosure to all properties
adjacent to the Community Park regarding the use of bellfield lighting.
12. " All proposed public park facilities shall provide for pedestrian circulation and
''handicapped accessibility pursuant to the American Disability Aet (ADA) Standards.
13. The installation of all landscape materials and irrigation equipment far the public park
sites, slope areas, parkway landscaping, and landscaped medians shall be in
conformance with the City of Temecula Landscape Development Plan Guidelines and
Specifications.
14. Construction of the community park, medians, and perimeter slope areas proposed for
dedication to the TCSD shall commence pursuant to a pre-job meeting with the
developer and the City Mairrosnance Superintendent. Failure to wmply with the TCSD
review and inspection process may preclude acceptance of these areas into the TCSD
maintenance program.
15. Park facilities, and/or other recreational areas, intended for transfer to the City "in-fee' O
shall be dedicated free and clear of any liens, assessments, or easements that would
preclude the City from using the property for public park and/or recreational purposes. l
nitrutnrrusm,~9rcon ~dusr,e 2
0
- - A policy of title insurance and a soils assessment report shall also be provided with the.
dedication of the property.
16. The developer shall complete the TCSD application and dedication process prior to the
acceptance of street lighting and perimeter slopes areas into the respective TCSD
maintenance programs. The developer shall maintain the park facilities, slopes, and
medians until such time as those responsibilities are accepted by the TCSD or other
responsible party.
17. All eXterior slopes contiguous to public streets that are adjacent to single family
residential developmem shall be ma6ltained by an established homeowner's association
until such time as those responsibilities are offered and accepted by the TCSD for
maintenance purposes. All other interior slopes, open space, perimeter walls, and entry
monumentation shall be maintained by the homeowner's association.
18. Slopes and landscaping adjacent to commercial development shall be maintained by the
property owner, or other approved private maintenance association.
19. Bike lanes and recreational trails shall ba provided on site and designed to intercept with
the City's Park and Recreation Master Plan. Class II Bike Lanes shall be completed in
concurrence with the street improvements.
O PRIOR TO RECORDATIOfd OF THE FIWAL RAAP:
20. Prior to recordation of final maps, landscape construction drawings for any respective
public park, slopes, and landscaped medians proposed far dedication to the City shall
be reviewed and approved by the Director of Community Services.
21. If the community park has not been completed Drior to the recordation of the final map
for Planning Area 44, then the developer shall enter into an improvement agreement
and bond for the park improvements prior to recordation of said map.
PRIOR TO ISSUANCE OF.BUILDIPIG PERNi1fTS:
22. The community park in Planning Area 44 shall be improved and dedicated to the City
prior to the issuance of 608th overall residential building permit within Village A.
PRIOR TO ISSUANCE OF CERI7FICATES OF OCCUPANCY:
23. Prior to the issuance of the first certificate of occupancy within each phased map, the
developer shall submit the most current list of Assessor's Parcel Numbers assigned to
the final project.
24. It shall be the developer's responsibility to provide written disclosure of the existence
of the TCSD and its service level rates and charges to all prospective purchasers.
O I have read, understand and accept the above Conditions of Approval.
_ Applicant Name
0.4StAFFRPttI60PA4r.COA 16'IN7 cQ