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081109 CC Agenda
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the office of the City Clerk (951) 694-6444. Notification 48 hours prior to a meeting will enable the City to make reasonable arrangements to ensure accessibility to that meeting [28 CFR 35.102.35.104 ADA Title 11] AGENDA TEMECULA CITY COUNCIL A REGULAR MEETING CITY COUNCIL CHAMBERS 43200 BUSINESS PARK DRIVE AUGUST 11, 2009 - 7:00 PM At approximately 9:45 P.M., the City Council will determine which of the remaining agenda items can be considered and acted upon prior to 10:00 P.M. and may continue all other items on which additional time is required until a future meeting. All meetings are scheduled to end at 10:00 P.M. Next in Order: Ordinance: 09-06 Resolution: 09-72 CALL TO ORDER: Mayor Maryann Edwards Prelude Music: Earlene Bundy Invocation: Pastor Steve Struikmans, Rancho Community Church Flag Salute: Council Member Comerchero ROLL CALL: Comerchero, Naggar, Roberts, Washington, Edwards PRESENTATIONS/PROCLAMATIONS Plein Air Contest Winner - 2009 Best of Show PUBLIC COMMENTS A total of 30 minutes is provided so members of the public may address the Council on items that appear within the Consent Calendar or ones that are not listed on the agenda. Speakers are limited to two (2) minutes each. If you desire to speak to the Council on an item which is listed on the Consent Calendar or a matter not listed on the agenda, a pink "Request to Speak" form should be filled out and filed with the City Clerk. When you are called to speak, please come forward and state your name for the record. For all Public Hearing or Council Business matters on the agenda, a "Request to Speak" form must be filed with the City Clerk prior to the Council addressing that item. There is a five minute (5) time limit for individual speakers. CITY COUNCIL REPORTS Reports by the members of the City Council on matters not on the agenda will be made at this time. A total, not to exceed, ten (10) minutes will be devoted to these reports. CONSENT CALENDAR NOTICE TO THE PUBLIC All matters listed under Consent Calendar are considered to be routine and all will be enacted by one roll call vote. There will be no discussion of these items unless Members of the City Council request specific items be removed from the Consent Calendar for separate action. 1 Standard Ordinance and Resolution Adoption Procedure RECOMMENDATION: 1.1 Motion to waive the reading of the text of all ordinances and resolutions included in the agenda. 2 Action Minutes RECOMMENDATION: 2.1 Approve the action minutes of July 28, 2009. 3 List of Demands RECOMMENDATION: 3.1 Adopt a resolution entitled: RESOLUTION NO. 09- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A City Treasurer's Report as of June 30, 2009 RECOMMENDATION: 4.1 Approve and file the City Treasurer's Report as of June 30, 2009. Approval of a Purchase and Sale Aareement to Sell an Approximate 0.875 Acre Portion of Assessor Parcel Number 921-021-088. at the NW corner of Diaz Road and Business Park Drive RECOMMENDATION 5.1 Approve a Purchase and Sale Agreement between the City of Temecula and 43455 BPD, LLC for the Sale of an approximate 0.875 Acre portion of Assessor Parcel Number (APN) 921-021-088 and authorize the City Manager to sign the Agreement. Amendment to the Western Riverside Council of Governments Joint Powers Agreement (at the reauest of Council Member Washinaton) RECOMMENDATION: 6.1 Approve the Amendment to the Western Riverside Council of Government's (WRCOG) Joint Powers Agreement (JPA) to include Eastern Municipal Water District and Western Municipal Water District as full voting members and authorize the Mayor to execute the Amendment on behalf of the City. Sixth Amendment to the Professional Services Agreement with Project Design Consultants for the desian of the Murrieta Creek Bridge and Overland Drive Extension to Diaz Road - Proiect No. PW00-26 RECOMMENDATION: 7.1 Approve the Sixth Amendment to the agreement with Project Design Consultants in an amount not to exceed $62,250 for additional services to complete the improvement plans for the Murrieta Creek Bridge and Overland Drive Extension to Diaz Road - Project No. PW00-26. Settlement of Eminent Domain Proceeding: Litigation City of Temecula v. Borchard- Temecula. L.P., et al. (Riverside County Superior Court Case No. 519307) for the Pechanaa Parkway Dual riaht Turn Lanes from Temecula Parkway - Project No. PW06-11 RECOMMENDATION: 8.1 Approve the following documents substantially in the form attached: Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff City of Temecula and Defendant Borchard-Temecula, L.P. (subject to resolution of issues between the City and County of Riverside and the City and Pacific Bell Telephone Company); Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff City of Temecula and AT&T Corp.; Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff City of Temecula and Verizon California, Inc. 8.2 Authorize the City Manager to approve a settlement and Stipulation for Interlocutory Judgment with Pacific Bell Telephone Company on terms substantially similar to the terms set forth in the Stipulation for Interlocutory Judgment Submitted by Plaintiff City of Temecula and Verizon California, Inc. Authorization to cooperate with the League of California Cities, the California Redevelopment Association, and other Cities and Counties in litigation challenging the constitutionality of anv seizure by State Government of the City's Property Tax Street Maintenance and Redevelopment Funds. RECOMMENDATION: 9.1 Adopt a resolution entitled RESOLUTION NO. 09- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA AUTHORIZING THE CITY ATTORNEY TO COOPERATE WITH THE LEAGUE OF CALIFORNIA CITIES, OTHER CITIES, AND COUNTIES IN LITIGATION CHALLENGING THE CONSTITUTIONALITY OF ANY SEIZURE BY STATE GOVERNMENT OF THE CITY'S PROPERTY TAX, STREET MAINTENANCE, AND REDEVELOPMENT FUNDS 10 Police Department Office of Traffic Safety (OTS) Grant Funding RECOMMENDATION: 10.1 Increase estimated General Fund Grant Revenue by $79,000; 10.2 Appropriate $79,000 from General Fund Grant Revenue to the Police Department. TEMECULA COMMUNITY SERVICES DISTRICT MEETING CSD PUBLIC COMMENTS A total of 15 minutes is provided so members of the public may address the Board of Directors on items that are not listed on the agenda or on the Consent Calendar. Speakers are limited to two (2) minutes each. If you decide to speak to the Board of Directors on an item not on the agenda or on the Consent Calendar, a pink "Request to Speak" form should be filled out and filed with the City Clerk. When you are called to speak, please come forward and state your name for the record For all other agenda items, a "Request to Speak" form must be filed with the City Clerk Prior to the Board of Directors addressing that item. There is a five (5) minute time limit for individual speakers. Anyone wishing to address the Board of Directors should present a completed pink "Request to Speak" form to the City Clerk. When you are called to speak, please come forward and state your name for the record. CSD CONSENT CALENDAR 11 Action Minutes RECOMMENDATION: 1 1.1 Approve the action minutes of July 28, 2009. 12 Notice of Completion for Murrieta Creek Multi-Purpose Trail - Project No. PW01-27 RECOMMENDATION: 12.1 Accept the Murrieta Creek Multi-Purpose Trail Project - Project No. PWO1 -27, as complete; 12.2 Direct the City Clerk to file and record the Notice of Completion, release the Performance Bond, and accept a one (1) year Maintenance Bond in the amount of 10% of the contract amount; 12.3 Release the Labor and Materials Bond seven (7) months after filing the Notice of Completion if no liens have been filed. 13 Margarita Officials Association Agreement RECOMMENDATION: 13.1 Approve an Agreement between the Temecula Community Services District and Margarita Officials Association to provide adult softball league and tournament officiating services in the amount of $40,000. CSD DIRECTOR OF COMMUNITY SERVICES REPORT CSD GENERAL MANAGERS REPORT CSD BOARD OF DIRECTORS REPORTS CSD ADJOURNMENT TEMECULA REDEVELOPMENT AGENCY MEETING RDA PUBLIC COMMENTS A total of 15 minutes is provided so members of the public may address the Redevelopment Agency on items that are not listed on the agenda or on the Consent Calendar. Speakers are limited to two (2) minutes each. If you decide to speak to the Board of Directors on an item not on the agenda or on the Consent Calendar, a pink "Request to Speak" form should be filled out and filed with the City Clerk. When you are called to speak, please come forward and state your name for the record. For all other agenda items, a "Request to Speak" form must be filed with the City Clerk Prior to the Board of Directors addressing that item. There is a five (5) minute time limit for individual speakers. Anyone wishing to address the Board of Directors should present a completed pink "Request to Speak" form to the City Clerk. When you are called to speak, please come forward and state your name for the record. RDA CONSENT CALENDAR 14 Action Minutes RECOMMENDATION: 14.1 Approve the action minutes of July 28, 2009. 15 Approve Service Agreement for Old Town Temecula Holiday Lights Project RECOMMENDATION: 15.1 Approve the service agreement with Southern California Lighting in the amount of $50,000 for the 2009 Old Town Temecula Holiday Lights Project. This project will be paid by the Temecula Redevelopment Agency. RDA BUSINESS 16 Owner Participation Agreement and Loan Agreement between BRIDGE SC, LLC, a California limited liability company and the Temecula Redevelopment Aaencv for the development of 90 Affordable Housina Units RECOMMENDATION: 16.1 Adopt a resolution entitled: RESOLUTION NO. RDA 09- A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA APPROVING "AN OWNER PARTICIPATION AGREEMENT AND LOAN AGREEMENT" BETWEEN THE AGENCY AND BRIDGE SC LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND THE ACQUISITION OF PROPERTY BY THE AGENCY FROM BRIDGE SC LLC, A CALIFORNIA LIMITED LIABILITY CORPORATION RDA EXECUTIVE DIRECTORS REPORT RDA AGENCY MEMBERS REPORTS RDA ADJOURNMENT RECONVENE TEMECULA CITY COUNCIL PUBLIC HEARING Any person may submit written comments to the City Council before a public hearing or may appear and be heard in support of or in opposition to the approval of the project(s) at the time of the hearing. If you challenge any of the project(s) in court, you may be limited to raising only those issues you or someone else raised at the public hearing or in written correspondence delivered to the City Clerk at, or prior to, the public hearing. 17 Parades and Special Events on Public Property Ordinance RECOMMENDATION: 17.1 Introduce and read by title only an ordinance entitled: ORDINANCE NO. 09- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AFFIRMING THE RIGHTS OF THE PEOPLE TO GATHER FOR EXPRESSIVE ACTIVITIES ON PUBLIC STREETS, SIDEWALKS, AND PARKS, ADDING CHAPTER 12.12 TO THE TEMECULA MUNICIPAL CODE ENTITLED PARADES AND SPECIAL EVENTS ON PUBLIC PROPERTY AND AMENDING SECTION 17.04.020 A. OF THE TEMECULA MUNICIPAL CODE PROVIDING THAT CHAPTER 17.04 APPLIES TO TEMPORARY USES AND SPECIAL EVENTS ON PRIVATE PROPERTY 17.2 Adopt a resolution entitled: RESOLUTION NO. 09- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ESTABLISHING THE SPECIAL EVENT PERMIT FEE IN ACCORDANCE WITH CHAPTER 12.12 OF THE TEMECULA MUNICPAL CODE ENTITLED PARADES AND SPECIAL EVENTS ON PUBLIC PROPERTY CITY MANAGER REPORT CITY ATTORNEY REPORT ADJOURNMENT Next regular meeting: City Council Regular, Tuesday, August 25, 2009, at 5:30 P.M., for a Closed Session, with the regular session commencing at 7:00 PM, City Council Chambers, 43200 Business Park Drive, Temecula, California. 7 NOTICE TO THE PUBLIC The agenda packet (including staff reports) will be available for viewing at the Main Reception at City Hall (43200 Business Park Drive, Temecula) or at the Temecula Library (30600 Pauba Road, Temecula) after 4:00 PM the Friday before the City Council meeting. At that time, the packet may as well be accessed on the City's website - www.citvoftemecula.ora Supplemental material received after the posting of the Agenda Any supplemental material distributed to a majority of the City Council regarding any item on the Agenda, after the posting of the Agenda, will be available for public review at the Main Reception at City Hall (43200 Business Park Drive, Temecula - 8:00 - 5:00 PM). In addition, such material will be made available on the City's web - www.cityoftemecula.org - and will be available for public review at the respective meeting. If you have any questions regarding any item of business on the Agenda for this meeting, please contact City Clerk's Department - 951-694-6444. CONSENT CALENDAR ITEM NO. 1 ITEM NO. 2 ACTION MINUTES TEMECULA CITY COUNCIL A REGULAR MEETING CITY COUNCIL CHAMBERS 43200 BUSINESS PARK DRIVE JULY 28, 2009 - 7:00 PM 6:00 P.M. - Closed Session of the City Council pursuant to Government Code Sections: 1) Conference with City Attorney pursuant to Government Code Section 54956.9(a) with respect to one matter of pending litigation to which the City is a defendant. The title of the litigation is Marina Landscape, Inc.vs. Douglas E. Barnhart, Inc., City of Temecula, et. al. Riverside County Superior Court Case No. RIC 476659 (Birdsall Sports Park Litigation) 2) Conference with real property negotiators pursuant to Government Code Section 54956.8 regarding approximately 7.5 acres of real property owned by United Commercial Bank located at the northwest corner of Margarita Road and Dartolo Road (4415 Margarita Road, Temecula; APN 959- 080-022) . The parties to the negotiations for sale of this property are: United Commercial Bank; Bridge Housing Corporation; Temecula Murrieta Rescue Mission; Riverside County Economic Development Agency; Redevelopment Agency of the City of Temecula. Negotiators for the Redevelopment Agency of the City of Temecula are: Bob Johnson; Patrick Richardson and Luke Watson. Under negotiation are the price and terms of the sale of the parcel. Public Information concerning existing litigation between the City and various parties may be acquired by reviewing the public documents held by the City Clerk. At 6:05 P.M., Council Member Naggar moved to call the Closed Session to order. The motion was seconded by Council Member Washington and voice vote reflected approval of those present (Mayor Edwards and Council Member Roberts absent). The City Council meeting convened at 7:00 PM. CALL TO ORDER: Prelude Music: Invocation: Flag Salute: ROLL CALL: Action Minutes City Council 072809 Mayor Maryann Edwards Ron Savitt and Susan Miyamoto Reverend Tony Foster of True Vine Pentecostal Church Council Member Washington Comerchero, Naggar, Roberts, Washington, Edwards PRESENTATIONSJPROCLAMATIONS Certificate of Achievement - Eagle Scout Daniel Huot Certificate of Appreciation to Dennis Chiniaeff Presentation by Southern California Edison - Viet Tran PUBLIC COMMENTS Barry Marr, Redhawk resident, addressed the City Council with regard to the Summerhouse project. Norman Nelson, resident of Harveston, relayed concern with the state of the Harveston Community Information Center (Cruz Development Company). CITY COUNCIL REPORTS CONSENT CALENDAR Standard Ordinance and Resolution Adoption Procedure - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 1.1 Motion to waive the reading of the text of all ordinances and resolutions included in the agenda. Action Minutes - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 2.1 Approve the action minutes of July 14, 2009. List of Demands - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 3.1 Adopt a resolution entitled: RESOLUTION NO. 09-68 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A Action Minutes City Council 072809 City Treasurer's Statement of Investment Policy - Approved Staff Recommendation (5-0- 0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 4.1 Adopt the Treasurer's Statement of Investment Policy which provides safety, liquidity, compliance, and yield for City funds. Authorization of Special Tax Lew in Community Facilities District No. 88-12 (Ynez Corridor - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 5.1 Adopt a resolution entitled: RESOLUTION NO. 09-69 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA AUTHORIZING THE LEVY OF A SPECIAL TAX IN COMMUNITY FACILITIES DISTRICT NO. 88-12 (YNEZ CORRIDOR) Parcel Map No. 36203. located on west side of Diaz Road. between Sarah Wav and Via Dos Picos - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 6.1 Approve Parcel Map No. 36203 in conformance with the Conditions of Approval, and Subdivision Improvement Agreement and accept the Faithful Performance Bond and Labor and Material Bond as security for the agreement. Tenth Amendment to the Consulting Agreement with Moffatt & Nichol Engineers for French Valley Parkway / Interstate-15 Over-Crossing and Interchange Improvements - Project No. PW02-11 - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 7.1 Approve the Tenth Amendment to the consulting agreement with Moffatt & Nichol Engineers in an amount not to exceed $414,774 for additional services necessary to complete the Project Report and Environmental Document for the French Valley Parkway / Interstate-15 Over-Crossing and Interchange Improvements - Project No. PW02-11, and extend the term of the Agreement through June 30, 2010. Action Minutes City Council 072809 Acceptance of certain Public Streets into the City-Maintained System within Tract Map Nos. 23065, 23065-1, and 23065-4 (located at the intersection of Pechanga Parkway and Deer Hollow Way - Centex Homes) - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 8.1 Adopt a resolution entitled: RESOLUTION NO. 09-70 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ACCEPTING CERTAIN PUBLIC STREETS INTO THE CITY-MAINTAINED SYSTEM (WITHIN TRACT NOS. 23065,23065-1, AND 23065-4) Support for ACA 8, Constitutional Amendment to Apply the Brown Act to the Legislature, (Jeffries) - at the request of Mayor Pro Tern Comerchero - Approved Staff Recommendation (5-0-0) - Council Member Comerchero made the motion; it was seconded by Council Member Naggar; and electronic vote reflected unanimous approval. RECOMMENDATION: 9.1 Adopt a resolution entitled: RESOLUTION NO. 09-71 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA EXPRESSING THE CITY COUNCIL'S SUPPORT FOR ASSEMBLY CONSTITUTIONAL AMENDMENT 8, TO APPLY THE BROWN ACT TO THE LEGISLATURE (JEFFRIES) 10 Old Town Civic Center (OTCC) Structured Data Cable Contract -Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 10.1 Award a contract to Anderson & Howard Electric, Inc. (A&H) for the Old Town Civic Center Structured Cable project in the amount of $603,178 and authorize the Mayor to execute the contract; 10.2 Authorize the City Manager to approve change orders not to exceed the contingency amount of $60,318, which is equal to 10% of the contract amount. Action Minutes City Council 072809 11 Agreement for Plan Review Services with Tom Haney for Fiscal Year 2009-2010 - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 11.1 Approve an agreement for Consultant Services for Plan Review for Fiscal Year 2009-2010 with Tom Haney in an amount not to exceed $40,000. 12 Amended and Restated Employment Agreement for City Manager Extending the Term of Service - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 12.1 Approve the Amended and Restated Employment Agreement for Shawn D. Nelson dated as of July 28, 2009. 13 Second Reading of Ordinance No. 09-05 - Approved Staff Recommendation (5-0-0) - Council Member Naggar made the motion; it was seconded by Council Member Comerchero; and electronic vote reflected unanimous approval. RECOMMENDATION: 13.1 Adopt an ordinance entitled: ORDINANCE NO. 09-05 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA ADDING NEW CHAPTER 8.48 (TEMECULA HERITAGE TREE ORDINANCE) TO TITLE 8 (HEALTH AND SAFETY) OF THE TEMECULA MUNICIPAL CODE At 8:23 P.M., the City Council convened as the Temecula Community Services District, the Redevelopment Agency, and the Temecula Public Financing Authority. At 8:28 P.M., the City Council resumed with regular business. Action Minutes City Council 072809 CITY COUNCIL BUSINESS 25 Parades and Special Events on Public Property Ordinance - Approved Staff Recommendation (5-0-0) - Council Member Comerchero made the motion; it was seconded by Council Member Edwards; and electronic vote reflected unanimous approval. RECOMMENDATION: 25.1 Hear a report from the City Attorney on the draft Parades and Special Events on Public Property ordinance, receive public comments and provide comments or proposed changes to the City Attorney on the draft ordinance; 25.2 Take no action on the draft ordinance at this time, but direct the Staff to set the public hearing for August 11, 2009, to formally consider the Parade and Special Events Ordinance. City Attorney, by way of a PowerPoint presentation, reviewed the staff report. Mr. Wayne Hall relayed his support of the proposed ordinance. CITY MANAGER REPORT CITY ATTORNEY REPORT City Attorney Thorson advised that the real estate item will be agendized at a subsequent City Council meeting for public discussion of the terms. With regard to the litigation item (Marian Landscape, Inc.), City Attorney Thorson noted that, under the Brown Act, the City Council authorized to enter into a settlement agreement in the amount of $100,000. Action Minutes City Council 072809 ADJOURNMENT At 8:48 P.M., the City Council meeting was formally adjourned to Tuesday, August 11, 2009, at 5:30 P.M. for a Closed Session with regular session commencing at 7:00 P.M., in the City Council Chambers, 43200 Business Park Drive, Temecula, California. ADJOURNED IN THE MEMORY OF DREW HRUSKA ATTEST: Maryann Edwards, Mayor Susan W. Jones, MMC City Clerk [SEAL] Action Minutes City Council 072809 ITEM NO. 3 Approvals City Attorney Director of Finance5;& City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Genie Roberts, Director of Finance DATE: Aug 11, 2009 SUBJECT: List of Demands PREPARED BY: Pascale Brown, Accounting Manager Jada Yonker, Accounting Specialist RECOMMENDATION: That the City Council: 1. Adopt a resolution entitled: RESOLUTION NO. 09- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A BACKGROUND: All claims and demands are reported and summarized for review and approval by the City Council on a routine basis at each City Council meeting. The attached claims represent the paid claims and demands since the last City Council meeting. FISCAL IMPACT: All claims and demands were paid from appropriated funds or authorized resources of the City and have been recorded in accordance with the City's policies and procedures. ATTACHMENTS: Resolution List of Demands RESOLUTION NO. 09- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. That the following claims and demands as set forth in Exhibit A, on file in the office of the City Clerk, has been reviewed by the City Manager's Office and that the same are hereby allowed in the amount of $3,930,375.75. Section 2. The City Clerk shall certify the adoption of this resolution. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 11th day of August, 2009. Maryann Edwards, Mayor ATTEST: Susan W. Jones, MMC City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA } I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 09- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 11 th day of August, 2009, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Susan W. Jones, MMC City Clerk CITY OF TEMECULA LIST OF DEMANDS 07/16/2009 TOTAL CHECK RUN: 07/23/2009 TOTAL CHECK RUN: 07/23/2009 TOTAL PAYROLL RUN: TOTAL LIST OF DEMANDS FOR 08/11/2009 COUNCIL MEETING: 940,467.85 2,393,966.39 595,941.51 3,930,375.75 DISBURSEMENTS BY FUND CHECKS: 001 GENERAL FUND 165 AFFORDABLE HOUSING 190 TEMECULA COMMUNITY SERVICES DISTRICT 192 TCSD SERVICE LEVEL B 193 TCSD SERVICE LEVEL"C" LANDSCAPE/SLOPE 194 TCSD SERVICE LEVEL D 196 TCSD SERVICE LEVEL "L" LAKE PARK MAINT. 197 TEMECULA LIBRARY FUND 210 CAPITAL IMPROVEMENT PROJECTS FUND 280 REDEVELOPMENT AGENCY - CIP PROJECT 300 INSURANCE FUND 310 VEHICLES FUND 320 INFORMATION SYSTEMS 330 SUPPORT SERVICES 340 FACILITIES 375 SUMMER YOUTH EMPLOYMENT PROGRAM 380 RDA DEBT SERVICE FUND 460 CFD 88-12 DEBT SERVICE FUND 472 CFD 01-2 HARVESTON A&B DEBT SERVICE 473 CFD 03-1 CROWNE HILL DEBT SERVICE FUND 474 AD03-4 JOHN WARNER ROAD DEBT SERVICE 475 CFD03-3 WOLF CREEK DEBT SERVICE FUND 476 CFD 03-6 HARVESTON 2 DEBT SERVICE FUND 477 CFD- RORIPAUGH 001 GENERAL FUND 165 AFFORDABLE HOUSING 190 TEMECULA COMMUNITY SERVICES DISTRICT 192 TCSD SERVICE LEVEL B 193 TCSD SERVICE LEVEL"C" LANDSCAPE/SLOPE 194 TCSD SERVICE LEVEL D 196 TCSD SERVICE LEVEL "L" LAKE PARK MAINT. 197 TEMECULA LIBRARY FUND 280 REDEVELOPMENT AGENCY - CIP PROJECT 300 INSURANCE FUND 320 INFORMATION SYSTEMS 330 SUPPORT SERVICES 340 FACILITIES 375 SUMMER YOUTH EMPLOYMENT PROGRAM $ 500,644.16 94,052.12 293,045.91 76,078.21 12,399.03 8,521.46 12,674.61 1,262.31 336,660.73 18,814.47 13,435.41 145,572.75 32,718.09 8,274.88 7,610.99 6,669.14 1,747,954.22 1,477.59 1,880.56 1,611.91 537.30 1,477.59 1,477.59 9,583.21 $ 336,167.75 10,833.88 151,919.98 144.20 5,888.61 1,387.19 1,578.61 789.86 4,137.53 1,281.68 23,552.53 5,552.78 9,865.72 42,841.19 3,334,434.24 595,941.51 TOTAL BY FUND: $ 3,930,375.75 apChkLst Final Check List Page: 1 0711612009 1:35:38PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA Check # Date Vendor Description Amount Paid Check Total 132664 07/0912009 010349 CALIF DEPT OF CHILD SUPPORT Support Payment 578.84 578.84 132665 0711612009 009604 12MILESOUT.COM Jun web video svcs: Info Sys 1,000.00 1,000.00 132666 07116/2009 012881 41MPRINT INC promo pens: Econ Dev 229.25 229.25 132667 07116/2009 007186 AB MAILING SOLUTIONS Temecula Presents brochure mailing 3,467.50 3,467.50 132668 07116/2009 004973 ABACHERLI, LINDI TCSD instructor earnings 880.00 880.00 132669 07116/2009 009033 ALLEN, STEVEN L. photography svcs: 4th of July 600.00 600.00 132670 0711612009 006915 ALLIE'S PARTY EQUIPMENT party rental equip: 4th of July 766.14 rental equip: 4th of July 859.99 rental equip: Team PACE 48.15 equip rental: St Painting Festival 971.80 2,646.08 132671 07116/2009 000101 APPLE ONE INC Temp Help Ppe 6127: Ortiz, V 106.50 106.50 132672 0711612009 012991 ARELLANO, JESSIE refund:summer day camp 0405.204 192.00 refund:summer day camp:0405.203 192.00 384.00 132673 0711612009 003203 ARTISTIC EMBROIDERY uniform shirts: TCSD 585.08 uniform shirts: TCSD 530.70 1,115.78 132674 07116/2009 012992 BARTON-AKERS, DARCY refund:kids culinary camp 1560.201 45.00 45.00 132675 07116/2009 011448 BEARCOM OPERATING L.P. radio rentals: 4th of July 459.57 459.57 132676 07116/2009 002377 BEST BUY COMPANY INC Employee Computer Loan Pgrm 1,115.72 1,115.72 132677 0711612009 004040 BIG FOOT GRAPHICS TCSD instructor earnings 428.75 TCSD instructor earnings 588.00 1,016.75 132678 07116/2009 012583 BLANCA Y PRICE Jun Lndscp Pln Ck Svcs: Planning 2,080.00 2,080.00 132679 07116/2009 012993 BOENZI, ANTHONY refund:multicultural portrait bk 18.95 18.95 132680 07116/2009 012287 BORDEAUX PRINTERS INC Temecula Presents season brochures 5,576.06 5,576.06 Page:1 apChkLst Final Check List Page: 2 07/1612009 1:35:38PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132681 07116/2009 012988 BRADLEY, CYNTHIA refund:sec dep:rm rental:crc 400.00 400.00 132682 07116/2009 000128 BROWN & BROWN OF CALIF INC Ins policy WV0000092 Inland Marine 11,627.26 11,627.26 132683 07116/2009 012994 BUSH, TIM refund:kids in kitchen 1675.201 36.00 refund:tennis beg jrs 1405.201 44.00 80.00 132684 07116/2009 009082 C B C TECHNICAL INC lighting rental:Teen Dance 4111 199.88 199.88 132685 07116/2009 002363 C C P O A 09/10 CCPOA mbrshp: CSO Thomas 30.00 30.00 132686 07116/2009 012089 CAFE DANIEL INC refreshments: 4th of July 700.00 700.00 132687 07116/2009 003138 CAL MAT Asphalt Products: Pw Maintenance 73.51 73.51 132688 07116/2009 007843 CALVARY CHAPEL BIBLE refund:sec dep:picnic:rrsp 150.00 150.00 132689 07116/2009 004228 CAMERON WELDING SUPPLY Helium tanks rentalfrefill:TCSD 41.80 41.80 132690 07116/2009 008644 CANTRELL, ROGER, AIA, AICP Jun Architectural Svcs: Planning 11,984.00 11,984.00 132691 07116/2009 000131 CARL WARREN & COMPANY INC Jun Liability Claims Mgmt Svc:Finance 1,286.65 1,286.65 132692 07116/2009 011542 CASCADE FIRE EQUIPMENT misc supplies: Stn 84 353.72 353.72 COMPANY 132693 07116/2009 009640 CERTIFION CORPORATION Jun online dbase subscr: Police 150.00 150.00 132694 07116/2009 009564 CHAMBERS, MICHAEL TCSD Instructor Earnings 182.00 TCSD Instructor Earnings 191.00 TCSD Instructor Earnings 80.00 453.00 132695 07116/2009 004609 CINTAS DOCUMENT Jun Doc Shred Svc: City Hall/Pd 1,072.00 1,072.00 MANAGEMENT 132696 07116/2009 005417 CINTAS FIRST AID & SAFETY First aid supplies: Library 127.56 127.56 132697 07116/2009 001264 COSTCO WHOLESALE refreshments: Employee lunch 717 405.74 405.74 Paget apChkLst Final Check List Page: 3 0711612009 1:35:38PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA Check # Date Vendor 132698 07/16/2009 009232 COT INV (Continued) Description CFD 88-12 Reimbursement FY 07108 132699 07/16/2009 010650 CRAFTSMEN PLUMBING & HVAC ice machine repair: Stn 84 INC dishwasher repair: Stn 92 ice machine repair: Stn 92 132700 07116/2009 012940 CRAWFORD, LILLIAN sttlmnt: Gospel at the Merc 6127 132701 0711612009 003962 DAVID NEAULT ASSOCIATES INC Jun Indscp insp svcs:Pechanga Pkwy 132702 07116/2009 012995 DEMPSEY, JULIANNA refund:carl's sleepy afternoon bk 132703 07/1612009 007057 DERNBACH, ESTHER MARIE TCSD instructor earnings TCSD instructor earnings 132704 07116/2009 012877 DESERT PROMOTIONAL T-shirts: Every 15 Min Pgrm 132705 07116/2009 003945 DIAMOND ENVIRONMENTAL SRVCS 132706 07116/2009 012792 DKS ASSOCIATES 132707 07116/2009 012836 DONS BICYCLE STORE INC portable restrooms: St Painting Fest portable restroom svc: Stn 84 portable toilet svc: 4th of July portable toilet svc: 4th of July traffic impact analysis: Waterpark Jun cnslt svc: Nicolas Valley bicycles: Police SET team 132708 07116/2009 004192 DOWNS COMMERCIAL FUELING Fuel for City vehicles: B&S INC Fuel for City vehicles: PW CIP Fuel for City vehicles: PW Maint Fuel for City vehicles: PW Traffic Fuel for City vehicles: PW Lnd Dv Fuel for City vehicles: TCSD Fuel for City vehicles: TCSD Fuel for City vehicles: Police Fuel for City vehicles: Code Enf/Pln 132709 07116/2009 011202 E M H SPORTS & FITNESS TCSD instructor earnings 132710 07116/2009 012630 ERICKSON-HALL Jun const svcs: TCC Expansion CONSTRUCTION CO 132711 0711612009 000164 ESGIL CORPORATION May Plan Check Svcs: B&S Jun Plan Check Svcs: B&S Amount Paid 3,225.02 145.00 120.00 160.00 168.00 12,040.50 12.95 1,463.00 535.50 1,218.00 371.51 75.88 3,791.13 419.63 6,600.00 6,716.00 6,905.64 202.41 99.85 1,227.76 216.89 379.65 1,830.89 66.32 60.11 215.73 1,578.50 99, 960.70 5,182.00 1,372.00 Check Total 3,225.02 425.00 168.00 12,040.50 12.95 1,998.50 1,218.00 4,658.15 13,316.00 6,905.64 4,299.61 1,578.50 99, 960.70 6,554.00 Page:3 apChkLst 07/1612009 1:35:38PM Final Check List CITY OF TEMECULA Page: 4 Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132712 07116/2009 003665 EXCEL COMMERCIAL June:long distance phone svcs 59.88 59.88 132713 07116/2009 001056 EXCEL LANDSCAPE valve repair: Stn 92 883.33 883.33 132714 07116/2009 000165 FEDERAL EXPRESS INC 615-22 express mail svcs:Citywide 600.84 600.84 132715 07116/2009 010804 FEHR & PEERS ASSOCIATES 1 212 7-512 9 cnslt svc:Liberty Quarry 1,456.50 1,456.50 132716 07116/2009 004000 FENCING BYACREY INC Res Imprv Prgm: Morton, Marvin 1,030.00 Res Imprv Pgrm: Finder, Alice 1,750.00 2,780.00 132717 07116/2009 003347 FIRST BANKCARD CENTER 012989 EDIBLE ARRANGEMENTS SN get well basket: Council 66.00 011999 CONFERENCE MANAGER.COM RJ conference call: Waterpark 12.11 011999 CONFERENCE MANAGER.COM RJ conference call: Waterpark 22.80 002652 PAT & OSCARS RESTAURANT SJ refreshments: Council mtg 6123 183.31 284.22 132718 07116/2009 011967 FULL VALUE ENTERTAINMENT stllmnt: Rising Tide 6126 283.50 283.50 132719 07116/2009 011376 GENEVA SCIENTIFIC INC pet waste bags: TCSD Parks 644.50 644.50 132720 07116/2009 007691 GIANT RV Gem Trailerm Maint: Stn 84 753.91 753.91 132721 07116/2009 000177 GLENN IES OFFICE PRODUCTS Office Supplies: Fire 1,460.50 INC Office Supplies: Finance 194.75 Office Supplies: Info Sys/Library 538.15 Office supplies: Info Sys 976.47 Office Supplies: TCSD 43.03 Office Supplies: City Clerk 14.36 Office supplies: PW Admin/CIP 381.89 Office Supplies: Central Svcs 198.66 Office Supplies: CRC 342.10 4,149.91 132722 07116/2009 009608 GOLDEN VALLEY MUSIC sttlmnt: June Classic at the Merc 350.00 350.00 SOCIETY 132723 07116/2009 010279 GRIFFITH AIR TOOL INC grinder repairslmaint: PW Maint 2,264.28 2,264.28 132724 07116/2009 012996 GUADARRAMA, YAZMIN refund:gators & dragons bk 14.98 14.98 Page-.4 apChkLst 07/1612009 1:35:38PM Final Check List CITY OF TEMECULA Page: 5 Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132725 07116/2009 005311 H2O CERTIFIED POOL WATER Jun pool maint: CRC/TES 900.00 900.00 SPCL. 132726 07116/2009 006250 HAZ MAT TRANS INC haz mat svc: PW waste disposal 652.00 652.00 132727 07116/2009 001135 HEALTH POINTE MEDICAL pre-employment physicals: HR 450.00 GROUP INC credit:billing adj chg twice for -25.00 425.00 132728 07116/2009 012890 HICKS, STANLEY refund:wrath of mulgarath bk 10.99 10.99 132729 07116/2009 007792 HINTON, BEVERLY L. TCSD instructor earnings 205.80 205.80 132730 07116/2009 011625 HOLTS, ROBERT sttlmnt: Glenn Miller Meets 715 2,119.80 2,119.80 132731 07116/2009 005201 HUDSON, MICHAEL Employee Computer Loan Pgrm 1,765.20 1,765.20 132732 07116/2009 001123 INDUSTRIAL DISTRIBUTION misc m aint supplies: PW Maint 1,149.88 1,149.88 GROUP 132733 07116/2009 012882 INFO USA database license fee: Econ Dev 2,392.50 2,392.50 132734 07116/2009 005579 INLAND EMPIRE PROPERTY weed abatement: Code Enf 8,019.35 8,019.35 132735 07116/2009 003296 INTL CODE COUNCIL 09110 ICC mbrshp: Fire 180.00 180.00 132736 07116/2009 003266 IRON MOUNTAIN OFFSITE Jun backup tape storage:CH/1S 281.22 281.22 132737 07116/2009 012997 JI, KAREN refund:attack...bandit cats bk 6.00 6.00 132738 0711612009 011886 JMG SECURITY SYSTEMS refund:pln ck/insp fee:F09-0187 815.00 815.00 132739 07116/2009 010412 JOHNSON POWER SYSTEMS generator repair/maint: CRC 991.46 generator maint: CRC 14.87 1,006.33 132740 07116/2009 001091 KEYSER MARSTON ASSOCIATES Jun cnslt svcs: RDA Housing 7,598.76 7,598.76 INC 132741 07116/2009 009014 KIMOS HAWAIIAN SHAVE ICE refreshments: Employee lunch 717 350.00 350.00 132742 07116/2009 001085 L N CURTIS & SONS rescue equip supplies: Fire 48.94 48.94 Pagea apChkLst 07/1612009 1:35:38PM Final Check List CITY OF TEMECULA Page: 6 Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132743 07116/2009 004412 LEANDER, KERRY D. TCSD instructor earnings 1,995.00 TCSD instructor earnings 3,059.00 5,054.00 132744 0711612009 000482 LEIGHTON CONSULTING INC May geotech svcs:Old Town parking 69,122.44 May geotech svcs: TCC Expansion 1,024.50 70,146.94 132745 07116/2009 012998 LEUNGSIKUL, MALAYPHET refund:caillou...not hungry bk 7.95 7.95 132746 07116/2009 009524 LIVINGSTON, JENNIFER TCSD instructor earnings 532.00 TCSD instructor earnings 598.50 1,130.50 132747 07116/2009 004141 MAINTEX INC Custodial Supplies:City facilities 2,953.16 2,953.16 132748 07116/2009 010974 MATRIX CONSULTING GROUP User fee & DIF study:finance 7,000.00 7,000.00 132749 07116/2009 013003 MAXCY, HOWARD reimb:dishwasher @ fs 92 637.98 637.98 132750 07116/2009 009541 MEYER AND ASSOCIATES Mar design:tcc expansion 6,842.00 Apr design:tcc expansion 125.00 May design:tcc expansion 13,817.25 20,784.25 132751 07116/2009 007210 MIDORI GARDENS Mainline Repair:Stephen Michael Pk 5115 96.90 Mainline Repair:Wolf Creek Pk 5118 136.17 Irrigation repairs: vail ranch pk 4117 802.61 1,035.68 132752 0711612009 004002 MILNER SIGNS Facade Improve pgrm:Eftekari, B 1,497.58 1,497.58 132753 07116/2009 012580 MINUTEMAN PRESS Printing Services: Planning Dept 229.52 229.52 132754 07116/2009 012990 MOBLEY, ERIC refund:sec dep:gym:crc 150.00 150.00 132755 07116/2009 004586 MOORE FENCE COMPANY Fence repair:pbsp 1,388.44 credit:amount exceeds agreement -111.71 1,276.73 132756 07116/2009 012757 MUND, KELLEY ROSE TCSD Instructor Earnings 106.40 106.40 132757 07116/2009 006745 MUNICIPAL MAINTENANCE Hat patch truck:pw maint div 145,572.75 145,572.75 132758 07116/2009 002925 NAPA AUTO PARTS City veh. parts & supplies: stn 84 138.66 138.66 132759 07116/2009 005006 NBS GOVERNMENT FINANCE 5124-8123109 Spcl tax admin srvcs:fin 10,611.75 10,611.75 GROUP Page6 apChkLst Final Check List Page: 7 07/1612009 1:35:38PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132760 07116/2009 010273 NIXON PEABODY LLP May-Jun Legal Srvcs:Roripaugh Cfd 03-02 7,434.00 7,434.00 132761 07116/2009 009337 NOLTE ASSOCIATES INC May-Jun eng dsgn srvcs:ped bridge 4,799.29 4,799.29 132762 07116/2009 002139 NORTH COUNTY TIMES Jun Adverti si ng:Th eater 339.00 Jun public ntc ads:PW/PIn/City Clerk 305.99 644.99 132763 07116/2009 002139 NORTH COUNTY TIMES 1 yr subscr:PW 93072 126.00 126.00 132764 07116/2009 002139 NORTH COUNTY TIMES Jun newspaper subscr:mpsc 28.60 28.60 132765 07116/2009 001171 ORIENTAL TRADING COMPANY Misc supplies:tiny tot pgrm 105.83 105.83 INC 132766 07116/2009 010906 P C R SERVICES CORPORATION May-Jun Air Quality Consulting: Planning 5,446.41 5,446.41 132767 07116/2009 007638 PARDELL, CHRISTOPHER A. Design srvcs:town square fountain 5,887.50 5,887.50 132768 07116/2009 002498 PETRA GEOTECHNICAL INC May geotech srvcs:DePortola pave rehab 7,307.50 7,307.50 132769 07116/2009 012964 PIERCE, KATHLEEN refund:little learners 2000.201-204 391.00 391.00 132770 07116/2009 000253 POSTMASTER Express Mail & Postal Svcs 51.78 Express Mail & Postal Svcs 51.41 credit:Express Mail & Postal Svcs -16.63 86.56 132771 07116/2009 000254 PRESS ENTERPRISE COMPANY 6/19/09-6117/10 subscr:Planning 175.76 175.76 INC 132772 07116/2009 001416 QUICK CRETE PRODUCTS INC Trash Iiners:var park sites 809.10 809.10 132773 07116/2009 000728 RAMSEY BACKFLOW & Backflow testing:old town 245.00 PLUMBING Backflow repair:old town 164.00 409.00 132774 07116/2009 000262 RANCHO CALIF WATER DISTRICT June:various water meters:tcsd 924.82 924.82 132775 07116/2009 002654 RANCHO FORD LINCOLN City Vehicle Maint:Stn 84 1,778.38 1,778.38 MERCURY 132776 07116/2009 003761 RANCHO METALS & SUPPLY Metal supply: stn 84 121.70 121.70 Page:? apChkLst Final Check List Page: 8 07/1612009 1:35:38PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132777 07116/2009 000907 RANCHO TEMECULA GAR WASH Jun City veh. detailing srvcs:var depts 178.50 178.50 132778 0711612009 000271 RBF CONSULTING May eng srvcs:1-151795 Ult. Intrchng 34,302.70 credit:billing adj/not city expense -17.80 May Prof Svcs: l-15f79s Ult. Intrchng 363.15 34,648.05 132779 07116/2009 013002 RED HAT PROPERTIES-, refund:eng grad dep:portion wk comp 37,000.00 37,000.00 TEMECULA LP 132780 07116/2009 004584 REGENCY LIGHTING electrical supplies:City Hall 147.03 electrical supplies: foc 86.39 Misc electrical supplies:theater 22.73 electrical supplies: foc 92.83 electrical supplies:City Hall 48.07 397.05 132781 07116/2009 004498 REPUBLIC INTELLIGENT Traffic Sig Repair&Maint:Pw Traffic 613 10,759.00 10,759.00 132782 07116/2009 012148 RICHARDSON TECHNOLOGIES HVAC repair:CRC 1,000.80 INC HVAC repair:Fire Stn 92 174.00 1,174.80 132783 07116/2009 000268 RIVERSIDE CO HABITAT June'09 K-Rat payment 580.00 580.00 132784 07116/2009 000406 RIVERSIDE CO SHERIFFS DEPT Street Painting Festival patrol srvcs 1,761.44 1,761.44 132785 07116/2009 003310 RIVERSIDE LOCAL AGENCY LAFCO filing fees:Santa Marg. area 1,750.00 1,750.00 132786 07116/2009 000277 S & S ARTS & CRAFTS INC Misc supplies:parent & me pgrm 98.09 Misc supplies:parent & me pgrm 197.37 Misc game & teen supplies:crc 64.98 Misc supplies:tcc 135.18 495.62 132787 07116/2009 009980 SANBORN, GWYN Country @ the Merc 714109 126.00 126.00 132788 07116/2009 012999 SCHMIDT, DAWN refund:little learners 2000.201 89.60 89.60 132789 07116/2009 010089 SECURITAS SECURITY SRVCS Jun Security Srvcs:Harveston Lake 3,150.00 3,150.00 USA 132790 0711612009 009213 SHERRY BERRY MUSIC Jazz @ the Merc 07102109 189.00 Jul-Aug '09 Jazz @ the Merc 4,000.00 4,189.00 132791 07116/2009 004814 SIMON WONG ENGINEERING INC Apr-May eng srvcs:main st bridge 10,178.96 10,178.96 Page:B apChkLst Final Check List Page: 9 07/1612009 1:35:38PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132792 07116/2009 000645 SMART & FINAL INC misc supplies:Team PACE 57.65 57.65 132793 07116/2009 000537 SO CALIF EDISON June:2-31-419-2659:26706 ynez tcl 78.54 June:2-05-791-8807 various mtrs 8,914.33 July:2-29-479-2981 temecula pkwy 83.81 July:2-01-202-7330 var mtrs:LS-1 75,962.87 July:2-01-202-7603 arterial st lights 27,267.78 July:2-30-608-9384:28582 harveston 459.25 July:2-30-066-2889 rancho vista FED 20.48 July:2-28-171-2620 police mall stn 1,319.41 June:2-02-351-5281 CRC 8,928.66 June:2-10-331-2153 TCC 1,928.94 June:2-20-798-3248 C. Museum 1,555.83 June:2-29-974-7899 ynez rd LS-3 79.58 June:2-31-031-2590:28301 rncho 38.20 126,637.68 132794 07116/2009 012795 SODEXO SERVICES INC 618-12/09 supplies:mpsc sr nutrition 210.00 6115-19/09 supplies:mpsc sr nutrition 90.00 611-5109 supplies:mpsc sr nutrition pgrm 340.00 640.00 132795 07116/2009 012652 SOUTHERN CALIFORNIA July:gen phone usage 36.51 July:gen phone usage 70.08 106.59 132796 07116/2009 003995 ST CATHERINES CATHOLIC refund:closed:10% ping appl fee 279.50 279.50 CHURCH 132797 07116/2009 002015 STAR WAY PRODUCTIONS Audio servicesAth of July Parade 915.00 915.00 132798 07116/2009 008023 STATER BROTHERS MARKETS Refreshments:dinner wlfire pgrm 161.53 161.53 132799 07116/2009 006145 STENO SOLUTIONS Jun transcription srvcs:police 715.36 715.36 TRANSCRIPTION 132800 07116/2009 003599 T Y LIN INTERNATIONAL May Prof Srvcs:Western Bypass Bridge 64,625.68 64,625.68 132801 07116/2009 011736 TEMECULA TROPHY INC Bronze Plaque:Merchantile Building 739.50 739.50 132802 07116/2009 010046 TEMECULA VALLEY May'09 BID admin fees -926.41 CONVENTION & May'09 Bus. Imprv District Asmnts 46,320.61 45,394.20 132803 07116/2009 004274 TEMECULA VALLEY SECURITY locksmith services:T.Museum 60.03 60.03 CENTR 132804 07116/2009 003849 TERRYBERRY COMPANY Recognition pins:safe driver pgrm 462.90 462.90 Page9 apChkLst Final Check List Page: 10 0711612009 1:35:38PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA Check # Date Vendor 132805 07116/2009 013000 THODE, LAURA (Continued) Description Amount Paid refund:parenting bk 23.95 Check Total 23.95 132806 07116/2009 012626 TOMSETH, DIANA H. TCSD Instructor Earnings 539. 00 TCSD Instructor Earnings 423. 50 TCSD Instructor Earnings 252. 00 1,214.50 132807 0711612009 010276 TW TELECOM July:high speed internet:fs#92 44. 95 July:high speed internet:city hall 183. 38 228.33 132808 07116/2009 004261 VERIZON July:xxx-8900 GIS Library 811. 93 July:xxx-4200 general usage 907. 50 July:xxx-1540 old town prk lot 87. 93 July:xxx-5072 general usage 2,361. 29 July:xxx-6620 general usage 34. 02 July:xxx-7530 GIS Library 418. 37 July:xxx-5180 79S Irrg ctr 38. 09 July:xxx-6400 general usage 1,468. 18 July:xxx-6812 gen usage 88. 08 July:xxx-1341 Theater 439. 54 July:xxx-1941 PTA CD TTACSD 72. 51 July:xxx-3910 1st st irrigation 38. 59 July:xxx-7562 irrig controller 37. 38 July:xxx-0682 civic ctr camera 92. 23 July:xxx-2372 wlf crk irrg cntrl 35. 52 6,931.16 132809 07/1612009 004848 VERIZON SELECT SERVICES INC July:long distance phone Svcs 1,068. 88 July:long distance phone svcs 27. 94 1,096.82 132810 07/1612009 009101 VISION ONE INC Jun Ticketing Software License:Theater 1,324. 00 1,324.00 132811 07116/2009 010487 WATSON, LUKE ee computer purchase prgm 1,386. 16 1,386.16 132812 07116/2009 003730 WEST COAST ARBORISTS INC Tree trimming srvcs:rrsp 1,750. 00 3116-31109 tree trimming srvcs:citywide 12,306. 00 14,056.00 132813 07116/2009 002841 WESTERN OILFIELDS SUPPLY Irrigation rental for 4th of July 5,210. 43 5,210.43 CO, DBA: RAIN FOR RENT 132814 0711612009 000621 WESTERN RIVERSIDE COUNCIL FY 09110 duestreport fees:Waste Mgmt 7,410. 12 7,410.12 OF 132815 0711612009 013001 WILLIAMS, NATALIE refun d: skateb oard design 1148.201 120. 00 120.00 132816 0711612009 000348 ZIGLER, GAIL reimb:supplies-movies in the park 114. 14 114.14 Page:10 apChkLst Final Check List Page: 11 0711612009 1:35:38PM CITY OF TEMECULA Grand total for UNION BANK OF CALIFORNIA: 940,467.85 Page:11 apChkLst Final Check List Page: 12 0711612009 1:35:38PM CITY OF TEMECULA 153 checks in this report. Grand Total All Checks: 940,467.85 Page:12 apChkLst 0712312009 1:57:37PM Final Check List CITY OF TEMECULA Page: 1 Bank : union UNION BANK OF CALIFORNIA Check # Date Vendor Description Amount Paid Check Total 1293 07/23/2009 010349 CALIF DEPT OF CHILD SUPPORT Support Payment- 2 Employees 578.84 578.84 1294 0712312009 000444 INSTATAX (EDD) Unemployment & Training Tax 2nd Qtr 2009 9,216.26 9,216.26 1295 07123/2009 001065 NATIONWIDE RETIREMENT Nationwide Retirement Payment 14,774.60 14,774.60 SOLUTION 1296 07123/2009 000389 NATIONWIDE RETIREMENT OBRA- Project Retirement Payment 9,326.14 9,326.14 SOLUTION 1297 07123/2009 000283 INSTATAX(IRS) Federal Income Taxes Payment 100,125.42 100,125.42 1298 07123/2009 000444 INSTATAX (EDD) State Disability Ins Payment 28,324.41 28,324.41 1299 07123/2009 000246 PERS (EMPLOYEES' PERS ER Paid Member Contr Payment 127,176.86 127,176.86 RETIREMENT) 1300 07127/2009 005460 U S BANK RDA debt service payment 1,124,546.36 1,124,546.36 1301 07127/2009 005460 U S BANK 2006 RDA TABs Series A DS payment 623,407.86 623,407.86 1302 07123/2009 000166 FIRST AMERICAN TITLE 28725 Pujol St APN 922-062-010 75,433.00 75,433.00 COMPANY 132817 07123/2009 008552 VOID 0.00 0.00 132818 07123/2009 006915 ALLIE'S PARTY EQUIPMENT equip rental: Aglow in the Park 623.46 623.46 132819 07123/2009 000747 AMERICAN PLANNING 09110 APA mbrshp: Kitzerow, Cheryl 275.00 275.00 ASSOCIATION 132820 07123/2009 000101 APPLE ONE INC temp help ppe 6130: Ortiz, V 97.63 97.63 132821 07123/2009 004623 AQUA TECH ENTERPRISES chlorine tablets: TES pool 1,483.35 1,483.35 132822 0712312009 011961 AT&T MOBILITY 4070/3465:cell phone usage 114.57 114.57 132823 07/2312009 012662 BEHNAWA, ABDUL SHUKOOR Jun plan check svcs: B&S 1,076.96 1,076.96 Page:1 apChkLst 0712312009 1:57:37PM Bank : union UNION BANK OF CALIFORNIA Check # Date Vendor 132824 07123/2009 002377 BEST BUY COMPANY INC 132825 07123/2009 012287 BORDEAUX PRINTERS INC 132826 0712312009 004176 BROADWING TELECOMMUNICATIONS Final Check List CITY OF TEMECULA (Continued) Description Employee Computer Loan printing svcs:theater calendar july:Long distance & internet svcs 132827 07123/2009 006908 C C & COMPANY INC costume rental: Aglow in the Park Caricaturist:Summer Day Camp 132828 07123/2009 006908 C C & COMPANY INC Dynmt Dave:Hot Summer Ngts 7117 entertainment:Hot Summer Ngts 7124 132829 07123/2009 002363 C C P O A 09110 CCPOA mbrshp:Salazar, L 132830 07123/2009 005321 CALIF ASSOC OF CODE '09 CACEO Sem:919-10:TC,MC,JV 132831 07123/2009 000137 CHEVRON AND TEXACO City vehicles fuel: Police 132832 07123/2009 004609 CINTAS DOCUMENT Jun Doc Shred Svc: Pd/City Hall MANAGEMENT Jun doc shred svc: CRC/Library 132833 07123/2009 004017 COMERCHERO, JEFF reimb:Nat'I Lg Cities Savannah 517-10 132834 07123/2009 004405 COMMUNITYHEALTH CHARITIES Community Health Charities Payment 132835 07123/2009 004414 COMMUNITY WORKS DESIGN Apr-May Design Svc:Pechanga Pkwy GROUP 132836 07123/2009 002945 CONSOLIDATED ELECTRICAL electrical supplies: Library 132837 07123/2009 012940 CRAWFORD, LILLIAN 132838 07123/2009 010118 CUEVAS, FRANCISCO 132839 07123/2009 003210 DALLAS MIDWEST 132840 07123/2009 001393 DATA TICKET INC 132841 07123/2009 006535 DAVIS, TY sttlmnt: Gospel at the Merc 7118 refund:5101.313/level 1 swim lessons (28) folding chairs: CRC refund:cite # 68586 refund:cite # 7094 reimb: mall pre plan area maps Amount Paid 1,137.45 1,627.20 741.00 81.56 925.00 275.00 275.00 30.00 1,005.00 1,579.84 122.50 55.00 149.13 116.00 553.00 15.23 126.00 48.00 1,277.59 102.25 196.00 64.22 Page: 2 Check Total 1,137.45 1,627.20 741.00 1,006.56 550.00 30.00 1,005.00 1,579.84 177.50 149.13 116.00 553.00 15.23 126.00 48.00 1,277.59 298.25 64.22 Paget apChkLst Final Check List Page: 3 07123/2009 1:57:37PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA Check # Date Vendor 132842 07123/2009 013008 DE HURTADO, ISABEL (Continued) Description Amount Paid refund:sec deposit/crc 7111109 150.00 Check Total 150.00 132843 07123/2009 003945 DIAMOND ENVIRONMENTAL Jul restroom svc:Veterans Park 52.88 SRVCS Jul restroom svc:Lng Cyn Park 52.88 Jul restroom svc:Riverton Park 52.88 Jul restroom svc:Redhawk Park 52.88 211.52 132844 07123/2009 004192 DOWNS COMMERCIAL FUELING Fuel for City vehicles: PW Maint 1,280.34 INC Fuel for City vehicles: PW CIP 117.98 Fuel for City vehicles: PW Lnd Dv 322.17 Fuel for City vehicles: PW Traffic 104.73 Fuel for City vehicles: B&S 192.51 Fuel for City vehicles: Code Enf/Pln 214.73 Fuel for City vehicles: CC/IS/TCSD 69.63 2,302.09 132845 07123/2009 011202 E M H SPORTS & FITNESS TCSD instructor earnings 945.00 945.00 132846 0712312009 002390 EASTERN MUNICIPAL WATER Jul 1 9030 4-0 2 Seraphina Rd 505.88 DIST Jul 95366-02 Diego Dr Ldscp 105.41 611.29 132847 07123/2009 005115 ENTERPRISE RENT A CAR INC transportation:teen summer camp 142.72 142.72 132848 07123/2009 001056 EXCEL LANDSCAPE irrigation repairs: Medians 114.13 landscape maint: Vineyards 2,261.75 landscape maint: Winchester Crk 1,580.00 irrigation repairs: Winchester Crk 2,754.00 irrigation repairs: Wolf Creek 860.75 valve repairs: Margarita Park 879.00 landscape maint: Redhawk medians 1,295.54 valve repairs: Serena Hills slopes 1,066.50 mainline repairs: Margarita medians 115.05 10,926.72 132849 07123/2009 012982 FELICETTI, THEODORE A. Entertainment:Hot Summer Ngts 713 600.00 600.00 132850 07123/2009 003347 FIRST BANKCARD CENTER SAFARI BOOKS ONLINE, LLC TT Safari Tech Books: Info Sys 472.89 PAYPAL TT Verisign Payflow Pro Transaction 104.00 GODADDY.COM INC. TT Wilcard SSL renewal 1 yr 299.99 HOME DEPOT, THE TT misc supplies: 4th of July 264.11 GLOBALSTAR INC TT GSP-2900 data kit: Info Sys 172.04 BEST BUY COMPANY INC TT cell phone accessories: Info Sys 132.63 1,445.66 Page:3 apChkLst 0712312009 1:57:37PM Final Check List CITY OF TEMECULA Page: 4 Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132851 07123/2009 010493 FOREST CITY COMMERCIAL refund:planning fees PA06-0293 1,134.00 1,134.00 MGMT 132852 07123/2009 011145 FOSTER, JILL C. TCSD instructor earnings 700.00 TCSD instructor earnings 308.00 1,008.00 132853 07/23/2009 002982 FRANCHISE TAX BOARD Support Payment 184.63 184.63 132854 0712312009 011967 FULL VALUE ENTERTAINMENT sttlmnt: Live at the Merc 7117 105.00 sttlmnt: Live at the Merc 7110 115.50 220.50 132855 07123/2009 012986 FUN EXPRESS misc supplies: TCSD 220.68 misc supplies: TCSD 424.80 645.48 132856 07123/2009 010326 G E MOBILE WATER, INC Jun maint osmosis washer: Stn 73 55.00 Jun exchange osmosis washer: Stn 73 126.15 181.15 132857 07123/2009 007804 GAZER, GEOFFREY entertainment:Hot Summer Ngts 713 250.00 250.00 132858 07123/2009 013011 GAUFRES THE ORIGINAL refundAth ofjuly vendor fees 100.00 100.00 132859 07/23/2009 005405 GILLILAND, ROBIN reimb: electronic parts for repairs 134.18 134.18 132860 07123/2009 013009 GOULDEN, LISA refund: sec deposit crc 7111109 150.00 150.00 132861 07123/2009 008934 GRAHAM, KERRI Refund:summer day camp 0406.205 96.00 96.00 132862 07123/2009 000186 HANKS HARDWARE INC Hardware supplies: Fire 1,757.78 1,757.78 132863 07123/2009 003299 HAYES, BARNEY entertainment:Hot Summer Ngts 7117 400.00 400.00 132864 07123/2009 007618 HOT AUGUST NIGHT performance:Summer Concert 7116 1,500.00 1,500.00 132865 07123/2009 000194 1 C M A RETIREMENT-PLAN I C M A Retirement Trust 457 Payment 10,671.66 10,671.66 303355 132866 07123/2009 001123 INDUSTRIAL DISTRIBUTION maint supplies: PW Maint 795.96 795.96 GROUP 132867 07123/2009 006914 INNOVATIVE DOCUMENT Jun copier lease: Citywide 4,056.71 SOLUTIONS Jun copier lease: Library 1,883.14 5,939.85 132868 07123/2009 003571 INTL ASSN OF PLUMBING AND 09110 IAPMO m brshp: Johnston, Rich 250.00 250.00 Page-.4 apChkLst Final Check List Page: 5 0712312009 1:57:3 7PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132869 07123/2009 003296 INTL CODE COUNCIL 09110 ICC mbrshp: Johnston, Rich 180.00 180.00 132870 07123/2009 012981 JONES, LORING A. entertainment:Hot Summer Ngts 713 500.00 500.00 132871 07123/2009 013013 KIM, RICHARD INSOO refund:ovrpmt 1501.201Ir golf clinic 25.00 25.00 132872 07123/2009 009014 KIMOS HAWAIIAN SHAVE ICE refreshments:family movie ngt 7124 558.23 558.23 132873 07123/2009 004546 KING, JAMES N. entertainment:Hot Summer Ngts 7124 1,250.00 1,250.00 132874 07123/2009 004051 L O R GEOTECHNICAL GROUP Jun Geotech Svc:Rancho Ca Rehab 4,945.00 4,945.00 INC 132875 07123/2009 012065 LANCE, SOLL & LUNGHARD LLC '09 engagement interim audit svcs 15,000.00 15,000.00 132876 07123/2009 013007 LOMA LINDA UNIVERSITY regist:FEMA GIS trn 8124-26 Beal, K 100.00 100.00 132877 07123/2009 008965 LOWDER, BOB entertainment:Hot Summer Ngts 713 600.00 600.00 132878 07123/2009 008257 LOYA, MARIANO bilingual testing cnslt svc: 718109 280.00 280.00 132879 07123/2009 012983 LUKAS, MARK entertainment:Hot Summer Ngts 713 500.00 500.00 132880 07123/2009 010931 MAR DELS BAND INC, THE Perform ance:summer concert 7123 1,500.00 1,500.00 132881 07123/2009 004307 MARINE BIOCHEMISTS Jul water maint srvcs:HarvlDuck Pond 3,900.00 3,900.00 132882 07123/2009 006736 MARTINEZ, LOURDES Refund:swim lessons 5104.303 40.00 40.00 132883 07123/2009 006571 MELODY'S AD WORKS INC. July mrkt & promo srvcs:old town 5,000.00 reimb exp:hot summer nights 313.24 5,313.24 132884 07123/2009 007210 MIDORI GARDENS Jun Idscp srvcs: Parks 70,105.00 70,105.00 132885 07123/2009 004951 MIKE'S PRECISION WELDING Welding srvcs:csd maint div/rrsp 700.00 700.00 INC. Pagea apChkLst Final Check List Page: 6 0712312009 1:57:3 7PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132886 07123/2009 012580 MINUTEMAN PRESS business cards:R.Shabec 45.37 Printing srvcs:finance department 1,034.24 business cards:C. Wilhite 84.24 1,163.85 132887 07123/2009 001892 MOBILE MODULAR credit:amt exceeds contract -220.26 5128-6126109 modular bldg rental:OATC 840.14 619.88 132888 07123/2009 009443 MUNYON, DENNIS G. Jul-Sep '09 prkg space lease:old town 2,375.00 2,375.00 132889 07123/2009 007096 MUSICIANS WORKSHOP theater settlement for Jazz Festival '09 587.90 587.90 132890 07123/2009 002925 NAPA AUTO PARTS Hardware supplies:fire prev 27.18 27.18 132891 07123/2009 008820 NEIGHBORS NEWSPAPER July display ads:hot summer rights 250.00 250.00 132892 07123/2009 010504 NEXTEL COMMUNICATIONS May 26-Jun 25 cellular usagelequip 12.54 12.54 132893 07123/2009 002139 NORTH COUNTY TIMES Jun display ads:4th of July events 464.45 464.45 132894 07123/2009 002292 OASIS VENDING coffee/kitchen supplies:foc 97.84 coffeelkitchen supplies:west wing 65.23 coffeelkitchen supplies:city hall 455.48 618.55 132895 07123/2009 002105 OLD TOWN TIRE & SERVICE City Vehicle Maint Svcs:TCSD 562.84 City Vehicle Maint Svcs: Land Dev 66.57 City Vehicle Maint Svcs:CIP 36.57 City Vehicle Maint Svcs:CIP 168.32 City Vehicle Maint Svcs:PW Traffic 291.06 1,125.36 132896 07123/2009 013012 PARLA, ALISHA refund:toddlertime 1130.201 24.00 24.00 132897 07123/2009 001320 PELLETIER, JULIE ee computer purchase prgm 607.58 607.58 132898 07123/2009 001958 PERS LONG TERM CARE PERS Long Term Care Payment 377.54 377.54 PROGRAM 132899 07123/2009 000249 PETTY CASH Petty Cash Reimbursement 527.10 Petty Cash Reimbursement 206.95 734.05 132900 07123/2009 007484 PHILIPS MEDICAL SYSTEMS INC AED supplies:paramedics 3,711.09 3,711.09 132901 0712312009 011660 PLANNET CONSULTING Jun consulting srvcs: Civic Cntr 62.70 62.70 Page6 apChkLst Final Check List Page: 7 0712312009 1:57:3 7PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132902 07123/2009 012689 POTTY TOTS LLC TCSD Instructor Earnings 79.80 79.80 132903 07123/2009 011549 POWER SPORTS UNLIMITED City veh repair & maint:police 653.13 653.13 132904 07123/2009 012904 PRO ACTIVE FIRE DESIGN Jun Plan Check Srvcs: Fire 3,063.66 3,063.66 132905 07123/2009 005075 PRUDENTIAL OVERALL SUPPLY Jun uniform/flrmts/twl rentals:City 1,651.25 credit:billing adjlchrg not per contract -4.00 Jun uniformlflr mts/twl rentals:City 17.52 Jun uniformlflr mts/twl rentals:City 11.76 Jun uniformlflr mts/twl rentals:City 35.42 1,711.95 132906 07123/2009 011706 QUINN, AMY entertainment:FAM prgm 7113109 100.00 100.00 132907 07123/2009 000262 RANCHO CALIF WATER DISTRICT Jul 01-06-65070-1 main st 352.82 Jul 01-06-66000-3 main st 16.93 Jul 01-06-99000-14 pujol st 6.85 Jul 01-06-26305-0 old town front st 130.90 Jul 01-31-61237-2 calle elenita 59.10 Jul 01-06-68615-0 pujol st 13.22 Jul various water meters 5,343.49 5,923.31 132908 07123/2009 002110 RENTAL SERVICE Tool and equip rental: PW 9.74 9.74 CORPORATION 132909 07123/2009 004498 REPUBLIC INTELLIGENT Jun street light maint: Old Town Front 452.18 Jun traffic signal repair & maint: PW 14,812.00 15,264.18 132910 07123/2009 000353 RIVERSIDE CO AUDITOR May'09 parking citation assessments 8,902.00 8,902.00 132911 07123/2009 000418 RIVERSIDE CO CLERK & ntc/exempt:citywide trf Igt synchr systm 64.00 64.00 RECORDER 132912 07123/2009 004822 RIVERSIDE TRANSIT AGENCY (2) bus passes: Mayor's SYEP 85.00 85.00 132913 07123/2009 006815 SAN DIEGO, COUNTY OF Support Payment 12.50 12.50 132914 07123/2009 012771 SAN JOSE MUSEUM OF QUILTS shipping charges:T. Museum 112.50 112.50 132915 07123/2009 011511 SCUBA CENTER TEMECULA TCSD Instructor Earnings 1,008.00 1,008.00 Page:? apChkLst Final Check List Page: 8 0712312009 1:57:3 7PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132916 07123/2009 008529 SHERIFF'S CIVIL DIV -CENTRAL Support Payment 477.87 477.87 132917 0712312009 008529 SHERIFF'S CIVIL DIV - CENTRAL Support Payment 200.00 200.00 132918 07123/2009 008529 SHERIFF'S CIVIL DIV - CENTRAL Support Payment 100.00 100.00 132919 07/23/2009 009213 SHERRY BERRY MUSIC Jazz @ the Merc 719109 189.00 189.00 132920 0712312009 000645 SMART & FINAL INC misc supplies:summer day camp 419.71 recreation supplies:FAM prgm 146.93 566.64 132921 07123/2009 000824 SO CALIF ASSN OF FY 09110 agency membership dues 7,853.00 7,853.00 GOVERNMENTS 132922 07123/2009 000537 SO CALIF EDISON Jul 2-29-9747568 Ynez Rd TC-1 103.78 Jul 2-27-560-0625 Deerhollow Way 2,288.22 Jul 2-30-296-9522 Rancho Vista 262.25 Jul 2-00-397-5059 various mtrs 6,999.94 Jul 2-26-887-0789 various mtrs 1,911.26 Jul 2-28-397-1315 Redhawk Pkwy 20.48 11,585.93 132923 07123/2009 001212 SO CALIF GAS COMPANY Jul 055-475-6169-5 pbsp 101.59 Jul 015-575-0195-2 fs#92 107.68 209.27 132924 07123/2009 012795 SODEXO SERVICES INC 6122-30109 supplies:mpsc sr nutrition 375.00 375.00 132925 07123/2009 005786 SPRINT May 26-Jun 25 cellular usage/equip 6,508.22 6,508.22 132926 07123/2009 009811 SUNNY HILLS TOWING LOWBED vehicle towing services: Tem. Police 675.00 675.00 SRVC 132927 0712312009 000305 TARGET BANK BUS CARD SRVCS misc supplies: stay & play prgm 29.95 misc supplies: mpsc 161.60 misc supplies: summer day camp 130.61 322.16 132928 07123/2009 009500 TEMEC ELECTRONICS, INC Misc tools & equipment: PW Traffic 267.53 267.53 132929 07123/2009 012265 TEMECULA ACE HARDWARE C/O Misc supplies:var park sites 14.45 14.45 132930 07123/2009 005328 TEMECULA CREEK CHRISTIAN Refund:sec.depositlrrsp picnic july 150.00 150.00 Page:B apChkLst Final Check List Page: 9 0712312009 1:57:3 7PM CITY OF TEMECULA Bank : union UNION BANK OF CALIFORNIA (Continued) Check # Date Vendor Description Amount Paid Check Total 132931 07123/2009 010276 TW TELECOM Jul high speed internet:fs#92 93.94 93.94 132932 07123/2009 002702 U S POSTAL SERVICE Postage meter deposit 4,864.39 4,864.39 132933 07123/2009 008517 UNITED SITE SERVICES OF 6118-7115 fence rental:Main St Bridge 26.64 26.64 CA,INC 132934 07123/2009 000325 UNITED WAY United Way Charities Payment 36.00 36.00 132935 07123/2009 004261 VERIZON july xxx-3143 PD Overland Office 49.13 july xxx-0074 general usage 304.03 july xxx-0714 PD Mall Alarm 268.89 july xxx-3564 alarm 71.03 july sox-6084 general usage 34.34 july xxx-5473 Moraga Rd 36.65 july xxx-8573 general usage 35.51 july xxx-4723 Police Storefront 36.64 july xxx-0073 general usage 266.02 1,10224 132936 07123/2009 001890 VORTEX DOORS Door repairs & installation:stn 84 885.48 885.48 132937 07123/2009 013010 WALKER, CHARLES ee computer purchase prgm 1,719.75 1,719.75 132938 07123/2009 011869 WEITZ, MICHELLE S. Perform ance:summer concert 7130 1,800.00 1,800.00 132939 0712312009 003730 WEST COAST ARBORISTS INC 6116-30109 tree trimming srvcs:citywide 480.00 Tree trimming srvcs MartiniquelNicolas 850.00 Tree trimming srvcs:duck pondlrrsp 2,246.00 Tree trimming services:stn 84 650.00 4,226.00 132940 07123/2009 000621 WESTERN RIVERSIDE COUNCIL FY 08109 agency membership dues 17,854.00 17,854.00 OF 132941 07123/2009 008402 WESTERN RIVERSIDE COUNTY Jun'09 MSHCP payment 6,399.09 6,399.09 132942 07123/2009 012568 ZEBRA TECHNOLOGIES CORP printer repairs:Police Traffic Div 380.00 380.00 Grand total for UNION BANK OF CALIFORNIA: 2,393,966.39 Page9 apChkLst Final Check List Page: 10 07123(2009 1:57:37PM CITY OF TEMECULA 136 checks in this report. Grand Total All Checks: 2,393,966.39 Page:10 ITEM NO. 4 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Genie Roberts, Director of Finance DATE: August 11, 2009 SUBJECT: City Treasurer's Report as of June 30, 2009 PREPARED BY: Rudy Graciano, Revenue Manager RECOMMENDATION: Approve and file the City Treasurer's Report as of June 30, 2009. BACKGROUND: Government Code Sections 53646 and 41004 require reports to the City Council regarding the City's investment portfolio, receipts, and disbursements respectively. Adequate funds will be available to meet budgeted and actual expenditures of the City for the next six months. Current market values are derived from the Local Agency Investment Fund (LAIF) reports, Union Bank of California trust and custody statements, and from US Bank trust statements. Attached is the City Treasurer's Report that provides this information. The City's investment portfolio is in compliance with the statement of investment policy and Government Code Sections 53601 and 53635 as of June 30, 2009. FISCAL IMPACT: None. ATTACHMENTS: City Treasurer's Report as of June 30, 2009 City of Temecula City of Temecula, Californ is 43299 Business Park Drive Ot Portfolio Management P a . Box 9033 Temec l CA, 92590 â–º.ty Portfolio Summary (951 )694-6430 June 30, 2009 Par Market Book % of Days to YTM YTM Investments Value Value Value Portfolio Term Maturity 360 Equiv. 365 Equiv. Certificates of Deposit - Bank 873,983.53 873,983.53 873,983.53 0.39 1,177 427 5.600 5.678 Managed Pool Accounts 99,704,342.37 99,704,342.37 99,704,342.37 44.29 1 1 0.000 0.000 Letter of Credit 1.00 1.00 1.00 0.00 1 1 0.000 0.000 Local Agency I nvestment Funds 70,692,060.21 70,771,857.37 70,692,060.21 31.40 1 1 2.469 2.504 Fed eral Ag ency Callable Securities 35,000,000.00 35,460,020.00 34,999,750.00 15.55 1,380 1,026 3.803 3.855 Fed eral Ag ency B ullet Securities 16,849,000.00 17,093,700.20 16,816,705.33 7.47 670 433 2.110 2.140 Investment Contracts 2,031,468.76 2,031,468.76 2,031,468.76 0.90 6,979 2,984 5.509 5.585 225,150,855.87 225,935,373.23 225,118,311.20 100.00% 333 221 1.596 1.618 Investments Cash Passbook/Checking 6,242,117.21 6,242,117.21 6,242,117.21 1 1 0.000 0.000 (not included in yield calculations) Total Cash and Investments 231,392,973.08 232,177,490.44 231,360,428.41 333 221 1.596 1.618 Total Earnings June 30 Month Ending Fiscal Year To Date Fiscal Year Ending Current Year 413,811.63 7,524,253.52 7,524 ,253.52 Average Daily Balance 236,718,545.56 Effective Rate of Return 2.13% Reporting period 06/01/2009-06/30/2009 Portfolio TEME CID Run Date: 07/29+2009 -16:43 PM (PRF_PM1) SyrnRept6.42 Report Ver. 5.00 City of Temecula, California Portfolio Management Portfolio Details - Investments June 30, 2009 Page 2 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Certificates of Deposit - Bank 95453518-2 86-12 GENIM2 USBANK 06/12/2007 873,963.53 673,983.53 673,963.53 5.600 Subtotal and Average 873,983.53 873,983.53 873,983.53 873,983.53 Managed Pool Accounts 122216003-2 CITY COP RE2 104348006-1 01-2 IMP 2 104348006-4 01-2 RESA2 104348016-3 01-2 RESB2 104348000-4 01-2 SPTAX2 94669911-2 03-1 ACQA2 94669921-3 03-1 ACQ83 94669902-3 03-1 BOND3 94669906-3 03-1 RES A3 94669916-2 03-1 RES B2 94669900-4 03-1 SPTAXI 793593011-2 03-2 ACQ 2 793593009-2 03-2 EMW D 2 793593007-2 03-2 IMP 2 793593016-4 03-2 LOC 2 793593010-2 03-2 PWADM2 793593006-2 03-2 RES 2 793593000-3 03-2 SPTX2 744727011-2 03-3 ACQ2 744727002-2 03-3 BOND 2 744727007-2 03-3 CITY2 744727009 03-3 EMW D 1 744727006-3 03-3 RES3 744727000-4 03-3 SP TX 4 94666001-2 03-4 ADMIN2 94686005-1 03-4 PREP1 94666000-1 03-4 RED1 94686006-2 03-4 RES2 786776002-2 03-6 BON D2 786776007-2 03-6 1MP2 786776006-2 03-6 RES2 786776000-3 03-6 SP TX3 95453510-2 86-12 BON D2 95453518-4 88-12 G14 Run Date 07129!2009 - 1643 5.600 5.676 427 09.101/2010 5.600 5.678 427 ASSURED GUARANTY 07/01/2008 1.00 1.00 1.00 1.000 0.966 1.000 1 First American Treasury 12/08/2008 0.00 0.00 0.00 0.000 0.000 1 First American Treasury 12/08/2008 608.41 606.41 608.41 0.000 0.000 1 First American Treasury 12/08/2008 290.76 290.76 290.76 0.000 0.000 1 First American Treasury 12/08/2008 582,033.34 582,033.34 582,033.34 0.000 0.000 1 First American Treasury 12/08/2008 4,272.65 4,272.65 4,272.65 0.000 0.000 1 First American Treasury 12/08/2008 15,113.21 15,113.21 15,113.21 0.000 0.000 1 First American Treasury 12/08/2008 0.34 0.34 0.34 0.000 0.000 1 First American Treasury 12/08/2008 306.56 306.56 306.56 0.000 0.000 1 First American Treasury 12/08/2008 468.63 468.63 468.63 0.000 0.000 1 First American Treasury 12/08/2008 670,666.63 670,666.63 670,666.63 0.000 0.000 1 First American Treasury 12/08/2008 92,031.76 92,031.76 92,031.76 0.000 0.000 1 First American Treasury 12/08/2008 4,229.47 4,229.47 4,229.47 0.000 0.000 1 First American Treasury 12/08/2008 3,442.16 3,442.18 3,442.18 0.000 0.000 1 First American Treasury 12/08/2008 523.06 523.06 523.06 0.000 0.000 1 First American Treasury 12/08/2008 2,150.25 2,150.25 2,150.25 0.000 0.000 1 First American Treasury 12/08/2008 367.56 367.56 367.56 0.000 0.000 1 First American Treasury 12/08/2008 606,651.25 606,651.25 606,651.25 0.000 0.000 1 First American Treasury 12/04/2008 708.63 706.63 708.63 0.000 0.000 1 First American Treasury 12/04/2008 0.51 0.51 0.51 0.000 0.000 1 First American Treasury 12/04/2008 0.00 0.00 0.00 0.000 0.000 1 First American Treasury 0.00 0.00 0.00 0.000 0.000 1 First American Treasury 12/04/2008 102.75 102.75 102.75 0.000 0.000 1 First American Treasury 12/04/2008 1,213,732.04 1,213,732.04 1,213,732.04 0.000 0.000 1 First American Treasury 12/04/2008 14,126.65 14,126.65 14,126.65 0.000 0.000 1 First American Treasury 12/04/2008 4,071.85 4,071.85 4,071.85 0.000 0.000 1 First American Treasury 12/04/2008 39,583.71 39,583.71 39,563.71 0.000 0.000 1 First American Treasury 12/04/2008 735.76 735.76 735.76 0.000 0.000 1 First American Treasury 12/08/2008 0.02 0.02 0.02 0.000 0.000 1 First American Treasury 12/08/2008 872.18 872.18 872.18 0.000 0.000 1 First American Treasury 12/08/2008 610.73 810.73 610.73 0.000 0.000 1 First American Treasury 12/08/2008 198,685.47 198,685.47 198,665.47 0.000 0.000 1 First American Treasury 12/08/2008 4.75 4.75 4.75 0.000 0.000 1 First American Treasury 12/08/2008 54,990.87 54,990.87 54,990.87 0.000 0.000 1 Portfolio TEME CID PM (PRF_PM2) SYmRept 6.42 Report Ver. 5.00 City of Temecula, California Portfolio Management Portfolio Details - Investments June 30, 2009 Page 3 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Managed Pool Accounts 122216003-4 CITY COP RE4 First American Treasury 12/08/2008 0.00 0.00 0.00 0.000 0.000 1 122216008-3 CITY COPCIP2 First American Treasury 12/04/2008 2,600.85 2,600.85 2,600.85 0.000 0.000 1 122216000-2 CITY COPLPF2 First American Treasury 12/08/2008 37.11 37.11 37.11 0.000 0.000 1 94434160-1 RDA 02 INT1 First American Treasury 12/08/2008 17.79 17.79 17.79 0.000 0.000 1 94434161-2 RDA 02 PRIN2 First American Treasury 12/08/2008 143.98 143.98 143.96 0.000 0.000 1 107886008-2 RDA 06 CIPA2 First American Treasury 12/08/2008 701,647.90 701,647.90 701,647.90 0.000 0.000 1 107886000-2 RDA 06A INT2 First American Treasury 12/08/2008 10.27 10.27 10.27 0.000 0.000 1 107886018-3 RDA 06B CIP3 First American Treasury 12/08/2008 6,824.93 6,824.93 6,824.93 0.000 0.000 1 107686010-2 RDA 06B INT2 First American Treasury 12/08/2008 0.00 0.00 0.00 0.000 0.000 1 107886016-2 RDA 06B RES2 First American Treasury 12/08/2008 202,115.10 202,115.10 202,115.10 0.000 0.000 1 107686030-2 RDA 07 CAP12 First American Treasury 12/08/2008 0.00 0.00 0.00 0.000 0.000 1 107886027-2 RDA 07 ESC2 First American Treasury 12/08/2008 0.00 0.00 0.00 0.000 0.000 1 107686020-2 RDA 07 INT2 First American Treasury 12/08/2008 0.00 0.00 0.00 0.000 0.000 1 107886028-2 RDA 07PROJ2 First American Treasury 12/08/2008 11,018,256.29 11,018,256.29 11,018,256.29 0.000 0.000 1 107886026-2 RDA 07 RES2 First American Treasury 12/08/2008 91.46 91.46 91.46 0.000 0.000 1 94432360-2 TCSD COP INT First American Treasury 12/08/2008 0.28 0.28 0.28 0.000 0.000 1 94432363 02001 Financial Security Assurance 12/11/2001 1.00 1.00 1.00 0.000 0.000 1 793593011-1 03-2-1 ACOUI CA Local Agency Investment Fun 42,540,563.26 42,540,563.26 42,540,563.26 0.000 0.000 1 793593009-1 03-2-1 EMWD CA Local Agency Investment Fun 1,545,460.44 1,545,460.44 1,545,460.44 0.000 0.000 1 793593007-1 03-2-1 IMPRO CA Local Agency Investment Fun 1,189,060.54 1,189,060.54 1,189,060.54 0.000 0.000 1 793593010-1 03-2-1 PW AD CA Local Agency Investment Fun 532,788.28 532,786.28 532,768.26 0.000 0.000 1 793593006-3 03-2-3 RESER CA Local Agency Investment Fun 3,567,618.55 3,567,618.55 3,567,618.55 0.000 0.000 1 122216008 CITY COP CIP CA Local Agency Investment Fun 19,241,278.87 19,241,278.87 19,241,278.87 0.000 0.000 1 122216003-1 CITY COP RE1 CA Local Agency Investment Fun 813,442.05 813,442.05 813,442.05 0.000 0.000 1 107686006-1 RDA 06 CIP-1 CA Local Agency Investment Fun 7,168,853.94 7,168,853.94 7,168,853.94 0.000 0.000 1 107886018-2 RDA 06 CIP-2 CA Local Agency Investment Fun 3,032,757.65 3,032,757.65 3,032,757.65 0.000 0.000 1 107886030-1 RDA 07 CAP-1 CA Local Agency Investment Fun 0.00 0.00 0.00 0.000 0.000 1 107886027-1 RDA 07 ESC-1 CA Local Agency Investment Fun 0.00 0.00 0.00 0.000 0.000 1 107686026-1 RDA 07 PRO-1 CA Local Agency Investment Fun 3,519,983.79 3,519,983.79 3,519,983.79 0.000 0.000 1 107886026-1 RDA 07 RES-1 CA Local Agency Investment Fun 1,109,203.06 1,109,203.06 1,109,203.06 0.000 0.000 1 107886006 RDA 06 RES A MBIA Surety Bond 1.00 1.00 1.00 0.000 0.000 1 94434166 RDA TABS RES MBIA Surety Bond 1.00 1.00 1.00 0.000 0.000 1 Subtotal and Average 97,936,110.89 99,704,342.37 99,704,342.37 99,704,342.37 0.000 0.000 1 Letter of Credit 104348006-1 02008 ASSURANCE CO BOND INSURANCE 07/01/2008 1.00 1.00 1.00 0.000 0.000 1 Subtotal and Average 3.00 1.00 1.00 1.00 0.000 0.000 1 Portfolio TEME CID Run Date: 07/29/2009 - 16 43 PM (PR F_PM2) SymRept 6.42 City of Temecula, California Portfolio Management Portfolio Details - Investments June 30, 2009 Page 4 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Local Agency Investment Funds 94669911-1 03-1 ACQ A2 CA Local Agency Investment Fun 1,502,080.62 1,502,080.62 1,502,080.62 0.000 0.000 1 94669921-1 03-1 ACQ B2 CA Local Agency Investment Fun 3,841,033.92 3,841,033.92 3,841,033.92 0.000 0.000 1 744727011-1 03-3 ACQ 2 CA Local Agency Investment Fun 3,675,234.95 3,675,234.95 3,675,234.95 0.000 0.000 1 744727007-1 03-3 CITY 2 CA Local Agency Investment Fun 0.00 0.00 0.00 0.000 0.000 1 786776007-1 03-6 IMP 1 CA Local Agency Investment Fun 514,414.16 514,414.16 514,414.16 0.000 0.000 1 SYSCITY CITY CA Local Agency Investment Fun 16,165,964.02 16,187,056.45 16,165,964.02 2.894 2.854 2.894 1 SYSRDA RDA CA Local Agency Investment Fun 31,012,478.39 31,052,941.70 31,012,478.39 2.894 2.854 2.894 1 SYSTCSD TCSD CA Local Agency Investment Fun 13,980,654.15 13,999,095.57 13,980,854.15 2.894 2.854 2.894 1 Subtotal and Average 54,990,637.24 70,692,060.21 70,771,857.37 70,692,060.21 2.469 2.504 1 Federal Agency Callable Securities 3133X4M1 01075 Federal Farm Credit Bank 09/28/2007 1,000,000.00 1,010,940.00 1,000,000.00 5.000 4.932 5.000 1,185 09/28/2012 31331YSC5 01085 Federal Farm Credit Bank 02/06/2008 2,000,000.00 2,005,000.00 2,000,000.00 3.590 3.541 3.590 950 02/06/2012 31331YTS9 01087 Federal Farm Credit Bank 02/14/2008 2,000,000.00 2,039,380.00 2,000,000.00 3.750 3.699 3.750 1,321 02/11/2013 31331Y3E8 01103 Federal Farm Credit Bank 07/15/2008 1,000,000.00 1,018,130.00 1,000,000.00 3.950 3.896 3.950 744 07/15/2011 31331Y4G2 01106 Federal Farm Credit Bank 07/28/2008 1,000,000.00 1,002,190.00 1,000,000.00 3.300 3.255 3.300 392 07/28/2010 31331Y4H0 01107 Federal Farm Credit Bank 07/28/2008 1,000,000.00 1,002,500.00 1,000,000.00 3.750 3.699 3.750 757 07/28/2011 31331Y5N6 01112 Federal Farm Credit Bank 08/20/2008 1,000,000.00 1,005,000.00 1,000,000.00 4.250 4.192 4.250 1,146 08/20/2012 31331Y5J5' 01113 Federal Farm Credit Bank 08/21/2008 1,000,000.00 1,004,690.00 1,000,000.00 4.020 3.965 4.020 965 02/21/2012 31331Y5T3 01115 Federal Farm Credit Bank 08/11/2008 1,000,000.00 1,003,750.00 1,000,000.00 4.000 3.945 4.000 771 08/11/2011 31331Y5V8 01117 Federal Farm Credit Bank 08/26/2008 1,000,000.00 1,006,250.00 1,000,000.00 4.400 4.340 4.400 1,517 08/26/2013 31331GAP4 01122 Federal Farm Credit Bank 09/04/2008 1,000,000.00 1,006,560.00 1,000,000.00 4.250 4.192 4.250 1,161 09/04/2012 3133XLSQ7 01069 Federal Home Loan Bank 07/30/2007 1,000,000.00 1,004,060.00 1,000,000.00 5.650 5.573 5.650 1,125 07/30/2012 3133XM5RB 01073 Federal Home Loan Bank 08/28/2007 1,000,000.00 1,006,880.00 1,000,000.00 5.080 5.011 5.080 786 08/26/2011 3133XM5E7 01074 Federal Home Loan Bank 08/28/2007 1,000,000.00 1,007,190.00 1,000,000.00 5.220 5.135 5.206 1,154 08/28/2012 3133XRSMJ 01102 Federal Home Loan Bank 07/23/2008 1,000,000.00 1,033,130.00 1,000,000.00 4.050 3.993 4.049 936 01/23/2012 3133XRTQ3 01104 Federal Home Loan Bank 07/30/2008 1,000,000.00 1,002,810.00 1,000,000.00 4.000 3.946 4.001 1,034 04/30/2012 3133XRVA5 01109 Federal Home Loan Bank 07/30/2008 1,000,000.00 1,035,630.00 1,000,000.00 4.220 4.162 4.220 1,125 07/30/2012 3133XRWE6 01110 Federal Home Loan Bank 08/12/2008 1,000,000.00 1,021,560.00 1,000,000.00 4.125 4.068 4.125 772 08/12/2011 3133XRXX3 01116 Federal Home Loan Bank 08/20/2008 1,000,000.00 1,034,060.00 1,000,000.00 4.070 4.014 4.070 1,146 08/20/2012 3133XRYN4 01116 Federal Home Loan Bank 08/20/2008 1,000,000.00 1,004,060.00 1,000,000.00 3.375 3.329 3.375 415 08/20/2010 3133XRZN3 01119 Federal Home Loan Bank 08/27/2008 1,000,000.00 1,005,310.00 999,750.00 4.000 3.953 4.008 971 02/27/2012 3133XS2J6 01120 Federal Home Loan Bank 08/27/2008 1,000,000.00 1,004,380.00 1,000,000.00 3.375 3.329 3.375 422 08/27/2010 3133XS3A4 01121 Federal Home Loan Bank 08/28/2008 1,000,000.00 1,005,000.00 1,000,000.00 3.625 3.559 3.609 607 02/28/2011 3128XSR46 01128 Federal Home Loan Mtg Corp 06/25/2009 2,000,000.00 2,024,700.00 2,000,000.00 3.000 2.959 3.000 1,455 06/25/2013 3126X8S52 01129 Federal Home Loan Mtg Corp 06/29/2009 1,000,000.00 1,007,160.00 1,000,000.00 2.450 2.416 2.450 1,094 06/29/2012 3136F9CB7 01086 Federal National Mtg Assn 03/11/2008 2,000,000.00 2,110,000.00 2,000,000.00 4.000 3.945 4.000 1,349 03/11/2013 3136F9DP5 01090 Federal National Mtg Assn 03/27/2008 1,000,000.00 1,055,630.00 1,000,000.00 4.000 3.945 4.000 1,365 03/27/2013 Portfolio TEME CID Run Date: 07/29/2009 -16 43 PM (PRF_PM2) SymRept 6.42 City of Temecula, California Portfolio Management Portfolio Details - Investments June 30, 2009 Page 5 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Federal Agency Callable Securities 3136F9WV1 01100 Federal National Mtg Assn 07/02/2008 1,000,000.00 1,000,000.00 1,000,000.00 4.000 3.945 4.000 366 07/02/2010 3136F9YW7 01108 Federal National Mtg Assn 08/05/2008 1,000,000.00 1,003,130.00 1,000,000.00 4.000 3.945 4.000 765 08/05/2011 3136FHXF7 01127 Federal National Mtg Assn 06/10/2009 1,000,000.00 995,000.00 1,000,000.00 2.000 1.972 2.000 1,258 12/10/2012 3136FHRX5 99.668 Federal National Mtg Assn 05/21/2009 1,000,000.00 995,940.00 1,000,000.00 2.125 2.096 2.125 1,785 05/21/2014 Subtotal and Average 36,497,593.75 35,000,000.00 35,460,020.00 34,999,750.00 3.803 3.855 1,026 Federal Agency Bullet Securities 31331XMQ2 01059 31331YG46 01092 31331Y3P3 01105 31331Y3N8 01111 3133XRRU6 01101 3133XSWM6 01124 3133XTN85 01125 3133XTXC5 01130 104348006-5 01-2 RESA3 104348016-4 01-2 RESB3 104348000-5 01-2 SPTAX3 94669906-4 03-1 RES A4 946699165 03-1 RES B3 946699005 03-1 SPTAX2 793593016-5 03-2 LOC 3 744727006-4 03-3 RES4 744727000-5 03-3 SP TX 5 94666000-2 03-4 RED2 946860065 03-4 RES3 786776006-3 03-6 RES3 786776000-4 03-6 SP TX4 Federal Farm Credit Bank Federal Farm Credit Bank Federal Farm Credit Bank Federal Farm Credit Bank Federal Home Loan Bank Federal Home Loan Bank Federal Home Loan Bank Federal Home Loan Bank Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp Federal Home Loan Mtg Corp 01/26/2007 1,000,000.00 1,040,310.00 1,000,000.00 04/21/2008 2,000,000.00 2,051,880.00 1,993,700.00 07/15/2008 1,000,000.00 1,044,380.00 998,140.00 07/30/2008 1,000,000.00 1,045,630.00 999,000.00 07/03/2008 1,000,000.00 1,044,690.00 998,570.00 01/23/2009 1,000,000.00 1,010,310.00 1,000,000.00 05/07/2009 1,000,000.00 999,380.00 1,000,000.00 06/11/2009 1,000,000.00 1,009,690.00 1,000,000.00 03/03/2009 441,000.00 440,911.80 439,780.51 03/03/2009 203,000.00 202,959.40 202,438.65 03/03/2009 162,000.00 161,967.60 161,552.02 03/03/2009 866,000.00 865,826.60 663,605.27 03/03/2009 223,100.00 223,055.38 222,483.07 03/03/2009 231,000.00 230,953.60 230,361.22 03/03/2009 2,841,000.00 2,840,431.80 2,833,143.85 03/03/2009 2,176,000.00 2,177,564.40 2,171,977.22 03/03/2009 220,000.00 219,956.00 219,391.64 03/03/2009 21,400.00 21,395.72 21,340.82 03/03/2009 96,000.00 95,980.80 95,734.53 03/03/2009 336,000.00 337,932.40 337,065.34 03/03/2009 28,500.00 28,494.30 28,421.19 16, 849, 000.00 17, 093,700.20 16,816, 705.33 5.000 4.934 5.002 329 05/26/2010 2.630 2.703 2.740 659 04/21/2011 3.500 3.514 3.563 824 10/03/2011 3.625 3.610 3.661 744 07/15/2011 3.625 3.626 3.676 730 07/01/2011 2.100 2.071 2.100 936 01/23/2012 1.500 1.479 1.500 659 11/07/2011 2.250 2.219 2.250 1,076 06/11/2012 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 0.560 1.107 1.122 61 08/31/2009 2.110 2.140 433 Subtotal and Average 16,483,372.00 Investment Contracts 95453518-1 86-12 GEN IM IXIS Funding Corp 95453516-1 88-12 RES 2 IXIS Funding Corp 07/24/1998 500,000.00 500,000.00 500,000.00 5.430 5.509 5.585 2,984 09/01/2017 07/24/1998 1,531,468.76 1,531,468.76 1,531,468.76 5.430 5.509 5.585 2,984 09/01/2017 Subtotal and Average 2,031,468.76 2,031,468.76 2,031,468.76 2,031,468.76 Run Date 07129!2009 - 1643 5.509 5.585 2,984 Portfoho TEME CID PM (PRF_PM2) SyrnRept 6.42 City of Temecula, California Portfolio Management Portfolio Details - Investments June 30, 2009 Page 6 Average Purchase Stated YTM YTM Days to CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Total and Average 236,718,545.56 225,150,855.87 225,935,373.23 225,118,311.20 1.596 1.618 221 Run Date: 07129(2009 - 1643 Portfoho TEME GP PM (PRF_PM2) SymRept 6.42 City of Temecula, California Portfolio Management Portfolio Details - Cash June 30, 2009 Page 7 Average Purchase Stated YTM YTM Days to CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Retention Escrow Account SYSAAA#1202 AAA#1202 COMMUNITY BANK 08/29/2008 732,773.85 732,773.65 732,773.85 0.000 0.000 1 4110170281 EDGEDEV TORRY PINES BANK 11/14/2008 389,593.76 389,593.78 389,593.78 0.000 0.000 1 23303800 PCL CONST Wells Fargo Bank 01/29/2009 518,199.22 518,199.22 516,199.22 0.000 0.000 1 Passbook/Checking Accounts SYSPetty Cash Petty Cash City of Temecula 07/01/2008 2,610.00 2,810.00 2,810.00 0.000 0.000 1 SYSFIex Ck Acct Flex Ck Acct Union Bank of California 07/01/2008 17,374.76 17,374.76 17,374.76 0.000 0.000 1 SYSGen CkAcct Gen CkAcct Union Bank of California 07/01/2008 4,568,083.60 4,568,083.60 4,568,083.60 0.000 0.000 1 SYSParking Ck PARKING CITA Union Bank of California 07/01/2008 13,282.00 13,282.00 13,262.00 0.000 0.000 1 Average Balance 0.00 1 Total Cash and Investments 236,718,545.56 Run Date: 07/29/2009 - 16 43 231,392,973.08 232,177,490.44 231,360,428.41 1.596 1.618 221 Portfolio TEME CID PM (PRF_PM2) SymRept 6.42 Cash and Investments Report CITY OF TEMECULA Through June 30, 2009 Fund Total 001 GENERAL FUND $51,651,965.43 101 STATE TRANSPORTATION FUND 1,460,693.02 120 DEVELOPMENT IMPACT FUND 5,095,600.82 140 COMMUNITY DEV BLOCK GRANT 0.59 150 AB 2766 FUND 412,497.87 165 RDA AFFORDABLE HOUSING 20% SET ASIDE 12,358,874.63 170 MEASURE A FUND 8,611,337.47 190 TEMECULA COMMUNITY SERVICES DISTRICT 623,475.20 192 TCSD SERVICE LEVEL "B" STREET LIGHTS 13,434.27 193 TCSD SERVICE LEVEL"C" LANDSCAPE/SLOPE 909,646.41 194 TCSD SERVICE LEVEL "D" 101,183.29 195 TCSD SERVICE LEVEL "R" STREET/ROAD 38,882.60 196 TCSD SERVICE LEVEL "L" LAKE PARK MAINT. 227,960.61 197 TEMECULA LIBRARY FUND 2,339,139.27 210 CAPITAL IMPROVEMENT PROJECT FUND 37,152,368.61 273 CFD 03-1 CROWNE HILL IMPROVEMENT FUND 5,362,500.40 275 CFD 03-3 WOLF CREEK IMPROVEMENT FUND 3,675,943.58 276 CFD 03-6 HARVESTON 2 IMPROVEMENT FUND 515,286.34 277 CFD-RORIPAUGH 45,374,787.65 280 REDEVELOPMENT AGENCY - CIP PROJECT 11,767,484.29 300 INSURANCE FUND 1,206,339.46 310 VEHICLES FUND 836,025.33 320 INFORMATION SYSTEMS 454,197.68 330 SUPPORT SERVICES 286,525.16 340 FACILITIES 20,805.66 370 CITY 2008 COP'S DEBT SERVICE 853,383.67 375 SUMMER YOUTH EMPLOYMENT PROGRAM 2,254.74 380 RDA DEBT SERVICE FUND 20,021,824.72 390 TCSD 2001 COP'S DEBT SERVICE 15,447.13 460 CFD 88-12 DEBT SERVICE FUND 4,794,304.41 472 CFD 01-2 HARVESTON A&B DEBT SERVICE 1,430,290.42 473 CFD 03-1 CROWNE HILL DEBT SERVICE FUND 2,021,632.76 474 AD 03-4 JOHN WARNER ROAD DEBT SERVICE 176,329.23 475 CFD 03-3 WOLF CREEK DEBT SERVICE FUND 3,935,377.00 476 CFD 03-6 HARVESTON 2 DEBT SERVICE FUND 594,131.26 477 CFD 03-02 RORIPAUGH DEBT SERVICE FUND 7,843,337.88 700 CERBT CALIFORNIA EE RETIREE-GASB45 2,142,265.64 Total $234,327,534.50 Less: *CERBT CALIFORNIA EE RETIREE-GASB45 (2,150,044.06) Grand Total: $232,177,490.44 These investments are in an irrevocable trust with CalPers and are only available to finance retiree health care. These monies are not available for general City operations/capital projects. Since they are not available for general expenditure, they will be excluded from the monthly Treasurer's Report so as not to overstate the City's investments. ITEM NO. 5 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Greg Butler, Director of Public Works DATE: August 11, 2009 SUBJECT: Approval of a Purchase and Sale Agreement to Sell an Approximate 0.875 Acre Portion of Assessor Parcel Number 921-021-088, at the NW corner of Diaz Road at Business Park Drive. PREPARED BY: Amer Attar, Principal Engineer RECOMMENDATION: That the City Council approve a Purchase and Sale Agreement between the City of Temecula and 43455 BPD, LLC for the Sale of an approximate 0.875 Acre portion of Assessor Parcel Number (APN) 921-021-088 and authorize the City Manager to sign the Agreement. BACKGROUND: The Diaz Realignment, Phase II Project, Project Number PW95-27 realigned Diaz Road to join with Rancho California Road at the location where Business Park Drive formerly intersected Rancho California Road. Business Park Drive was also realigned to form a "T" intersection with the new Diaz Road alignment. The City Council accepted this project at the April 22, 2008 meeting. As a result of the Diaz Road realignment, the City owned parcel at the corner of Diaz road and Rancho California Road, Assessor Parcel Number 921-021-088, was dissected into several remnant parcels. One of these remnant parcels, approximately 0.875 Acres lies on the north side of the new alignment of Diaz Road. It borders two separate properties on the north side; the Western Eagle Foundation property (APN 921-040-028) and the 43455 BPD, LLC property (APN 921-021-081). The property is shown and described on Exhibits A-8A, A-813, B-8A, and B-8B attached to the agreement. Initially, each of the two adjacent property owners expressed interest in purchasing the remnant City parcel adjacent to their property. Eventually, the Western Eagle Foundation withdrew their interest in purchasing the remnant City parcel adjacent to their property. Once 43455 BPD, LLC learned of the Western Eagle Foundation decision, they indicated to the City their desire to purchase the entire City remnant parcel northwest of Diaz Road. The City had the property appraised and on September 23, 2008, extended an offer to sell the subject property to 43455 BPD, LLC. The parties negotiated the sale of the subject property and on December 19, 2008, the City received a written counter-offer from 43455 BPD, LLC. The City consulted with its appraiser regarding the counter-offer and on January 13, 2009, the City Council approved buyer's proposed purchase price of $117,744.00 The subject property lies within the Rancho California Business Park Association and is bound by its Declaration of Covenants. Under this declaration, the minimum property size required to construct a structure is 3 Acres. Since the subject property is only 0.875 acres, it is only useful to the adjacent property owner. The Purchase and Sale Agreement includes a provision that a lot line adjustment to merge the property being sold with the 43455 BPD, LLC property. The buyer, 4355 BPD, LLC, will paythe cost to prepare and file the necessary documents to merge the two parcels. The agreement further stipulates that the merger of the two parcels does not constitute an agreement or approval by the City regarding development of the property being sold. FISCAL IMPACT: The sale of the approximate 0.875 Acres remnant City parcel will generate $117,744.00 in revenues to the City. ATTACHMENTS: 1. Purchase and Sale Agreement with Exhibits PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN CITY OF TEMECULA AND 43455 BPD, LLC FOR AN APPROXIMATE 0.875-ACRE (38,101.678 SQUARE FOOT) PORTION OF ASSESSOR'S PARCEL NUMBER 921-021-088 THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is dated and entered into as of (Effective Date") by and between THE CITY OF TEMECULA, a municipal corporation ("City"), and 43455 BPD, LLC ("Buyer"), and constitutes both an agreement to purchase and sell real property between the parties and the parties' escrow instructions directed to First American Title Company ("Escrow Holder"). RECITALS A. The City is the sole fee owner of the real property identified as Riverside County Tax Assessor's Parcel Number 921-021-088 ("Larger Parcel"). The City's construction of the Diaz Road Realignment Project physically divided the Larger Parcel that was located on the corner of the old Diaz Road and Rancho California Road. This construction resulted in the creation of an approximate 0.875-acre (38,101.7 square feet) remainder parcel ("Subject Property") on the north side of the newly realigned Diaz Road. The Subject Property is comprised of (i) an approximate 0.277-acre (12,047.679 square foot) portion of the Larger Parcel described on Exhibit "A-8A" hereto and depicted on Exhibit "B-8A" hereto and (ii) an approximate 0.598-acre (26,053.999 square foot) portion of the Larger Parcel described on Exhibit "A-813" hereto and depicted on Exhibit "13-813" hereto. Exhibits "A-8A", "13-8A", "A-813" and "13-813" are incorporated herein by this reference. B. The Declaration of Protective Conditions, Covenants and Restrictions for the Rancho California Business Park Association that was recorded against the Larger Parcel on November 2, 1984 in Book 1984, Page 237558 of Official Records of the County of Riverside ("Declaration of Covenants") binds the Subject Property. The Subject Property is smaller than the 3-acre minimum lot size required to construct a structure under the Declaration of Covenants. The Subject Property was the subject of the Stipulation for Entry of Judgment and Final Order of Condemnation and For Withdrawal of Funds on Deposit between the City, the Rancho California Business Park Association and Chemicon, Inc. in Riverside County Superior Court Case No. RIC 412290, Lead Case and Consolidated with Case No. RIC 398767. C. Buyer desires to purchase the Subject Property from the City and the City desires to sell the Subject Property to Buyer on the terms and conditions set forth in this Agreement. D. Due to the size, configuration, and zoning of the Subject Property and based on the limitations imposed on the Subject Property by the Declaration of Covenants and Riverside County Superior Court Case No. RIC 412290, Lead Case and Consolidated 11086\0111\1 126315v.5doc -1- with Case No. RIC 398767, the City's appraiser opined that the Subject Property is useful only to the adjacent property owner and cannot likely be sold to any other buyer. Based on the limitations of the Subject Property and the applicable law, including in part Government Code Section 54221(e)(2), the City Attorney's office opined that the sale of the Subject Property would not be considered a sale of surplus land. Government Code 54221(e)(2) provides in part that "[i]f the surplus land is not sold to an owner of contiguous land, it is not considered exempt surplus land and is subject to the provisions of this article." The sale of the Subject Property to Buyer constitutes a sale to an owner of contiguous land. Based on the above, the Subject Property could not be used for developing low- and moderate-income housing, park or recreation purposes, school facilities, or for enterprise zone purposes. (Government Code Section 54222). E. On September 23, 2008, the City extended an offer to sell the Subject Property to Buyer. The parties negotiated the sale of the Subject Property and on December 19, 2008, the City received a written counter-offer from Buyer for the Subject Property. The City consulted with its appraiser regarding the counter-offer and on January 13, 2009, the City Council approved Buyer's proposed purchase price for the Subject Property. NOW THEREFORE, in consideration of the foregoing Recitals and terms and conditions set forth below, which are incorporated herein by this reference, the parties hereto agree as follows: 1. PURCHASE AND SALE. On the Close of Escrow (as defined below), the City agrees to grant the Subject Property to the Buyer, and the Buyer agrees to acquire the Subject Property from the City, on the terms and conditions set forth below. 2. OPENING AND CLOSING OF ESCROW. Within ten (10) days after the Effective Date of this Agreement, the City shall deliver a fully executed copy of this Agreement to Escrow Holder. For purposes of this Agreement, "Opening of Escrow" shall mean the date on which Escrow Holder acknowledges receipt of a fully executed copy of this Agreement. The "Close of Escrow" shall be the date that Grant Deed for the Subject Property in favor of the Buyer is recorded in the Official Records of the Riverside County Recorder's Office. The Close of Escrow shall occur not later than ninety (90) days after the Opening of Escrow. 3. PURCHASE PRICE. The total Purchase Price to be paid by the Buyer to the City for the Subject Property is the sum of $117,744.00 (One Hundred Seventeen Thousand Seven Hundred Forty-four Dollars) ("Purchase Price"), which sum shall be paid to the City in full in cash on the Close of Escrow. Buyer shall deposit the sum of $ 10,000.00 (Ten Thousand Dollars) (the "Deposit") into Escrow within ten (10) days of the Opening of Escrow. No attempt has been made to assign value to any lesser interest in the Subject Property, including any leasehold estate. The Purchase Price, therefore, is the total price for the 11086\0111\1 126315v.5doc -2- Subject Property without distinction or separation for various interests that may be held in the Subject Property. The City shall be responsible for any apportionment or allocation of the Purchase Price if required for any separately held interests that may exist. The Deposit shall be released by Escrow Holder to City only upon presentation of a written certification, executed by City, stating that a default by Buyer has occurred under this Agreement, that City has given Buyer notice of such default and a period of five business days from receipt of such notice to cure such default in the event of a monetary default and 15 business days from receipt of such notice to cure such default in the event of a non-monetary default, and that as a result of Buyer's failure to cure such default, City is entitled to the Deposit under this Agreement. The Deposit shall either (i) be released by Escrow Holder to City as specified above, (ii) be returned to Buyer at Close of Escrow hereunder, (iii) at Buyer's option, be applied to the Purchase Price, or (iv) be returned to Buyer prior to Close of Escrow, if this Agreement terminates in accordance with its terms for reasons not due to the fault of Buyer. 4. LOT LINE ADJUSTMENT. The parties acknowledge that Buyer is purchasing the Subject Property to merge the Subject Property with Buyer's adjacent lot commonly known as 43455 Business Park Drive, Temecula, California 92590 and identified as Riverside County Tax Assessor's Parcel No. 921-021-081 ("Owner's Adjacent Property"). a. The City agrees to assist Buyer with processing during Escrow a Lot Line Adjustment package through the City's Community Development Department for the merger of the Subject Property with the Owner's Adjacent Property. The parties understand that in order to file for a Lot Line Adjustment, a Certificate of Compliance is required for both the Subject Property and Owner's Adjacent Property. Buyer agrees to deposit with the City within five (5) business days of the Effective Date of the Agreement the total sum of $7,320.00 (Seven Thousand Three Hundred Twenty Dollars) for preparation of the Lot Line Adjustment Application Package and the Certificate of Compliance by the firm Cozad & Fox, Inc. and towards the costs of the City's processing of the plan check in connection with the Lot Line Adjustment and Certificate of Compliance. City will provide to Escrow Holder a copy of the warrant deposited by Buyer or a letter confirming this deposit. b. The parties do not expect the total costs of preparation of the Lot Line Adjustment Application Package and Certificate of Compliance by Cozad & Fox, Inc. and of the City's processing of the Lot Line Adjustment Package and Certificate of Compliance to exceed the $7,320.00 (Seven Thousand Three Hundred Twenty Dollars) estimate provided by Cozad & Fox, Inc. The parties acknowledge, however, that the total costs in connection with the Lot Line Adjustment Package and Certificate of Compliance may be greater than the estimate of $7,320.00 (Seven Thousand Three Hundred Twenty Dollars). The City agrees that it will obtain written approval from Buyer before continuing to process the Lot Line Adjustment Application Package and Certificate of Compliance if the final costs for processing of the Lot Line Adjustment and Certificate of Compliance are more than $7,320.00 (Seven Thousand Three Hundred Twenty Dollars). If Buyer provides this written approval of the increased costs, then 11086\0111\1 126315v.5doc -3- Buyer agrees to deposit the additional sums for processing the Lot Line Adjustment Application Package and Certificate of Compliance within five (5) business days of Buyer's written approval of such increased costs. Buyer may cancel the Escrow, in its discretion, if the total costs to process the Lot Line Adjustment and Certificate of Compliance exceed the estimate of $7,320.00 (Seven Thousand Three Hundred Twenty Dollars). Said cancellation will be deemed a cancellation that is of no fault of either party for purposes of Escrow Charges pursuant to Section 8. C. The parties understand that the processing of the Lot Line Adjustment and Certificate of Compliance must comply with Government Code Section 66412(d) and with Chapter 16.36 of Title 16 of the Municipal Code of the City of Temecula and that the Community Development Department must make the applicable findings under these provisions. City staff believes that the applicable findings under Government Code Section 66412(d) and Chapter 16.36 of Title 16 of the Municipal Code of the City of Temecula can be made. The parties agree that the approval of the Lot Line Adjustment and Certificate of Compliance is a condition precedent to the Close of Escrow and that Buyer is responsible for all costs under Section 4 of this Agreement relating to the processing of the Lot Line Adjustment and Certificate of Compliance. Accordingly, Buyer will not be reimbursed for such costs if the City's Community Development Department does not approve the Certificate of Compliance. If Escrow fails to close because the City's Community Development does not approve the Lot Line Adjustment and Certificate of Compliance, such cancellation of Escrow will be deemed a cancellation that is of no fault of either party for purposes of Escrow Charges pursuant to Section 8. 5. TITLE AND TITLE INSURANCE. Upon the Opening of Escrow, Escrow Holder shall obtain and issue a title commitment for the Subject Property. Escrow Holder shall also request two copies each of all instruments identified as exceptions on said title commitment. Upon receipt of the foregoing, Escrow Holder shall deliver these instruments and the title commitment to the Buyer and the City. The Buyer's fee interest in the Subject Property shall be insured at the Close of Escrow by a CLTA Owner's Standard Coverage Policy of Title Insurance in the amount of the Purchase Price (the "Policy"). The Policy of Title Insurance provided for pursuant to this Section shall insure the Buyer's fee interest in the Subject Property free and clear of all liens, encumbrances, and restrictions, subject only to the following permitted conditions of title ("Permitted Title Exceptions"): a. Real property taxes for the then current tax fiscal year, which are a lien not then due and payable; b. The applicable zoning, building and development regulations of any municipality, county, state or federal jurisdiction affecting the Subject Property; and C. The non-monetary exceptions approved by the Buyer within fifteen (15) business days after the date the Buyer receives from Escrow Holder 11086\0111\1 126315v.5doc -4- the title commitment and legible copies of all instruments noted as exceptions therein. If the Buyer unconditionally disapproves any such exceptions, Escrow shall thereupon terminate, all funds deposited therein shall be refunded to the Buyer (less the Buyer's share of escrow cancellation charges), and this Agreement shall be of no further force or effect. If the Buyer conditionally disapproves any such exceptions, then the City shall use its best efforts to cause such exceptions to be removed by the Close of Escrow. If such conditionally disapproved non-monetary exceptions are not removed by the Close of Escrow, the Buyer may, at its option, either accept the Subject Property subject to such encumbrances, or terminate the Escrow and receive a refund of all funds deposited into Escrow (less the Buyer's share of escrow cancellation charges), if any, and this Agreement shall thereupon be of no further force or effect. At the Close of Escrow, the Buyer's interests in the Subject Property shall be free and clear of all monetary encumbrances. d. Quasi-public utility, public utility, public alley, public street, and rights of way of record. 6. GRANT DEED. The City covenants and agrees to deposit with Escrow Holder prior to the Close of Escrow a Grant Deed for the Subject Property duly executed and acknowledged by the City, granting to the Buyer the fee title to the Subject Property. The Grant Deed shall be in the form attached as Exhibit "D" hereto. 7. AUTHORIZATION TO RECORD DOCUMENTS AND DISBURSE FUNDS. Escrow Holder is hereby authorized to record the documents and disburse the funds and documents called for hereunder upon the Close of Escrow, provided each of the following conditions has then been fulfilled: a. Escrow Holder can issue in favor of the Buyer the Policy, showing the Buyer's interests in the Subject Property vested in the Buyer subject only to the Permitted Title Exceptions; b. The City shall have deposited with Escrow Holder the Grant Deed required by Section 6. C. The parties shall have deposited with Escrow Holder the Certificate of Compliance required by Section 4. Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close of Escrow any instrument delivered through this Escrow if necessary or proper for issuance of the Policy, including the Grant Deed and the Certificate of Compliance. 11086\0111\1 126315v.5doc -5- 8. ESCROW CHARGES AND PRORATIONS. a. The City will pay the cost of the CLTA Owner's Standard Coverage Policy of Title Insurance for the Subject Property. Buyer will pay the costs of all endorsements, if any, to the Title Policy. Buyer and the City will each pay one half (1/2) of the Escrow fees and Escrow Holder's customary out-of-pocket expenses for messenger services, long distance telephone, etc. Buyer and the City will each pay one half (1/2) of the fees or costs relating to recording of the Grant Deed with the Recorder's Office of the County of Riverside. Buyer will pay any documentary or other local transfer taxes. Taxes, assessments, penalties, interest charges, and delinquency charges of every kind levied upon or assessed against the Subject Property, if any, except as otherwise expressly set forth herein, shall be paid by the City through Escrow to the Close of Escrow. If the Escrow fails to close through no fault of either party, the Buyer and the City will each pay one half of any applicable Escrow cancellation charges. If the Escrow fails to close through the fault of the City, the City will pay all of the applicable Escrow cancellation charges. If the Escrow fails to close through the fault of the Buyer, the Buyer will pay all of the applicable Escrow cancellation charges. b. If Buyer requests from Escrow Holder an ALTA Coverage Policy of Title Insurance instead of a CLTA Owner's Standard Policy of Title Insurance for the Subject Property, Buyer will pay the cost of any premium for the ALTA portion of the ALTA Owner's Policy of Title Insurance. C. Escrow Holder shall not prorate any taxes between Buyer and the City. The City will have the sole right, after close of this transaction, to apply to the County of Riverside Tax Collector for a refund. This refund, if any, would apply to the period after Buyer's acquisition pursuant to Revenue and Taxation Code Section 5096.7. d. Escrow Holder is authorized to and will charge Buyer and the City for any fees, charges and costs payable under this Section 8. e. Escrow Holder is authorized to and will disburse the funds to the City and deliver the Grant Deed when Buyer and the City have fulfilled the conditions of this transaction. f. All time limits within which the parties must perform any matter specified in this Agreement may be extended by mutual written agreement of the parties. Any amendment of, or supplement to the escrow instructions must be in writing. 9. LICENSE TO ENTER. The City hereby grants to the Buyer, Buyer's authorized agents, contractors, consultants, assigns, attorneys, accountants and other representatives a license to enter upon the Subject Property for the purpose of making inspections and other examinations of the Subject Property, including, but not limited to, the right to perform soil or geological tests of the Subject Property and an environmental site assessment thereof, including a Phase I and/or Phase II environmental assessment. Buyer must give the City 11086\0111\1 126315v.5doc -6- a two-day written notice before going on the Subject Property. Buyer does hereby indemnify and forever save the City, its successors and assigns, agents, representatives, attorneys, employees and contractors, free and harmless from and against any and all liability, loss, damages and costs and expenses, demands, causes of action, claims or judgments arising out of or resulting from the entry onto or activities upon the Property by Buyer or Buyer's representatives or liens arising from Buyer's due diligence review of the Property; provided, however, Buyer's mere discovery of an adverse condition on the Property shall not trigger Buyer's indemnification obligations hereunder. If the Buyer fails to acquire the Subject Property due to the Buyer's default, this license will terminate upon the termination of the Buyer's right to purchase the Subject Property. If the Buyer fails to acquire the Subject Property due to no fault of either party, this license will terminate on the date of termination of Escrow. If the Buyer fails to acquire the Subject Property due to the City's default, the license will terminate upon the termination of Escrow. In any such termination, the Buyer will remove or cause to be removed from the Subject Property all of the Buyer's personal property, facilities, tools and equipment within five (5) business days of such termination. The City expressly acknowledges that the Buyer shall have the right to cancel the Escrow in its sole discretion if it does not approve of the soil or geological tests or the environmental assessments, including a Phase I and/or Phase II. The Buyer agrees to pay the Escrow charges relating to any such cancellation. 10. WARRANTIES AND REPRESENTATIONS OF CITY. The City hereby represents and warrants to the Buyer the following, it being expressly understood and agreed that all such representations and warranties are to be true and correct as of the Close of Escrow and shall survive the Close of Escrow: a. The City represents and warrants that to the best of the City's knowledge, there are no pending actions, suits, material claims, legal proceedings or any other proceedings affecting the Subject Property or any portion thereof, at law, or in equity before any court or governmental agency, domestic or foreign. b. The City represents and warrants that until the Close of Escrow, the City shall not do anything that would impair the City's title to the Subject Property. C. The City represents and warrants that to the best of the City's knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease or other agreement or instrument to which the Subject Property may be bound. d. The City represents and warrants that until the Close of Escrow, the City shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 10 not to be true as of closing, immediately give written notice of such fact or condition to Buyer. 11086\0111\1 126315v.5doc -7- e. The City represents and warrants that it did not use, generate, release, discharge, store or dispose of any hazardous waste, toxic substances or related materials on, or under, in or about the Subject Property or transport any Hazardous Materials to or from the Subject Property and that it shall not use, generate, release, discharge, store or dispose of any hazardous waste, toxic substances or related materials on, or under, in or about the Subject Property prior to the Close of Escrow. The term "Hazardous Materials" shall mean any substance, material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under Section 25115, 25117 or 25122.7 or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous material", "hazardous substance" or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. § 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42, U.S.C. §9601 et seq. (42 U.S.C. §9601). f. It has the full power and authority to enter into this Agreement and to perform this Agreement; it is not the subject of any bankruptcy or insolvency proceedings; and this Agreement is a legal, valid and binding obligation of City, enforceable against City in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws from time to time in effect which affect the rights of creditors generally or by limitations upon the availability of equitable remedies. g. City has good and marketable title to the Subject Property free and clear of liens other than the Permitted Title Exceptions and those liens to be released at Close of Escrow. h. Except for the rights of Buyer under this Agreement, City has not granted any options or rights of first refusal to purchase the Subject Property to any person or entity, and conveyance of the rights described herein will not constitute a breach or default under any agreement to which City is bound and/or to which the Property is subject. i. As of the Effective Date of this Agreement, the City is not aware of any suit, action, arbitration, legal, administrative or other proceeding or inquiry 11086\0111\1 126315v.5doc -8- pending or threatened against the Subject Property, or any portion thereof, or pending or threatened against City which could (i) affect City's title to the Subject Property, or any portion thereof, (ii) affect the value of the Subject Property, or any portion thereof, or (iii) subject an owner of the Subject Property, or any portion thereof, to liability. j. As of the Effective Date of this Agreement, the City has not received any written notice that there is, and there does not now exist, any violation of any restriction, condition or agreement contained in an easement, restrictive covenant or any similar instrument or agreement affecting the Subject Property or any portion thereof. 11. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby represents and warrants to the City the following, it being expressly understood and agreed that all such representations and warranties are to be true and correct as of the Close of Escrow and shall survive the Close of Escrow: a. The Buyer has taken all required action to permit it to execute, deliver, and perform its obligations under this Agreement. b. The Buyer has the power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and consummate the transaction contemplated herein. 12. AS-IS; WAIVER; RELEASE; CONSIDERATION. BUYER ACKNOWLEDGES AND AGREES AS FOLLOWS: BUYER IS FAMILIAR WITH ACQUISITIONS OF REAL PROPERTIES SIMILAR TO THE SUBJECT PROPERTY, AND BUYER HAS HAD, OR WILL HAVE, ADEQUATE OPPORTUNITY TO COMPLETE ALL PHYSICAL AND FINANCIAL INSPECTIONS, INVESTIGATIONS AND EXAMINATIONS OF THE SUBJECT PROPERTY THAT IT DEEMS NECESSARY, AND WILL BE ACQUIRING THE SUBJECT PROPERTY SOLELY ON THE BASIS OF, AND IN RELIANCE UPON, THE SAME, AND THE PROTECTION AFFORDED BY THE TITLE POLICY AND CITY'S REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10 ABOVE. BUYER IS PURCHASING THE SUBJECT PROPERTY ON AN "AS IS, WHERE IS" BASIS, WITH ALL FAULTS, LATENT AND PATENT. BUYER IS NOT RELYING ON AND THE CITY HAS NOT MADE, AND IS NOT HEREBY MAKING ANY WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE ENVIRONMENTAL, SOILS, SEISMIC OR GEOTECHNICAL CONDITION OF THE SUBJECT PROPERTY, EXCEPT FOR THE REPRESENTATION AND WARRANTY SET FORTH IN PARAGRAPH 9.e. REGARDING ITS OWN USE OF THE SUBJECT PROPERTY. ACCORDINGLY, BUYER IS NOT RELYING ON, AND THE CITY HAS NOT MADE, IS NOT HEREBY MAKING AND THE CITY HEREBY EXPRESSLY DISCLAIMS AND 11086\0111\1 126315v.5doc -9- NEGATES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE ENVIRONMENTAL, SOILS, SEISMIC OR GEOTECHNICAL CONDITION OF THE SUBJECT PROPERTY BASED ON THE USE OF THE SUBJECT PROPERTY BY ANY PREVIOUS OWNER OR OCCUPANT, INCLUDING ANY USE, GENERATION, RELEASE, DISCHARGE, STORAGE OR DISPOSAL OF ANY HAZARDOUS WASTE, TOXIC SUBSTANCES OR RELATED MATERIALS ON, UNDER, IN OR ABOUT THE SUBJECT PROPERTY OR TRANSPORTATION OF ANY HAZARDOUS MATERIALS TO OR FROM THE SUBJECT PROPERTY BY ANY PREVIOUS SELLER OR OCCUPANT OF THE SUBJECT PROPERTY. AS PART OF BUYER'S AGREEMENT TO ACQUIRE THE SUBJECT PROPERTY AS-IS, WHERE-IS AND WITH ALL FAULTS, AND NOT AS A LIMITATION ON SUCH AGREEMENT, BUYER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL CLAIMS AGAINST THE CITY ARISING OUT OF THE ENVIRONMENTAL CONDITION OF THE SUBJECT PROPERTY, AND OTHER THAN THE CITY'S REPRESENTATIONS AND/OR WARRANTIES MADE IN SECTION 10 OF THIS AGREEMENT, ANY REPRESENTATION OR WARRANTY OF ANY KIND OR CHARACTER WHATSOEVER, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO ANY ASPECT OF THE SUBJECT PROPERTY. EXCEPT FOR THE CITY'S OBLIGATION TO CONVEY THE SUBJECT PROPERTY TO BUYER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THE CITY'S REPRESENTATIONS AND WARRANTIES MADE IN SECTION 10 OF THIS AGREEMENT, AND EXCEPT FOR FRAUD, TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER HEREBY RELEASES, DISCHARGES AND FOREVER ACQUITS THE CITY AND ITS RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, ATTORNEYS, FROM ALL DEMANDS, CLAIMS, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES THAT BUYER MAY SUFFER OR INCUR RELATING TO THE SUBJECT PROPERTY, INCLUDING THE ENVIRONMENTAL CONDITION. AS PART OF BUYER'S AGREEMENT TO PROVIDE THE RELEASE SET FORTH IN THIS SECTION 12, AND NOT AS A LIMITATION ON SUCH AGREEMENT, BUYER HEREBY AGREES THAT THE MATTERS RELEASED IN THIS SECTION 12 ARE NOT LIMITED TO MATTERS THAT ARE KNOWN OR DISCLOSED, AND BUYER HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS THAT IT NOW HAS, OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF CALIFORNIA CIVIL CODE SECTION 1542 OR THE PROVISIONS OF ANY SIMILAR FEDERAL, STATE OR LOCAL STATUTE, LAW, RULE OR REGULATION; BUYER HEREBY ACKNOWLEDGES THAT CALIFORNIA CIVIL CODE SECTION 1542 PROVIDES AS FOLLOWS: 11086\0111\1 126315v.5doc -10- "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTION THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." BUYER's Initials CITY'S Initials This Section 12 will survive the Close of Escrow. 13. DEVELOPMENT OF THE SUBJECT PROPERTY. The sale by the City to Buyer of the Subject Property does not constitute an agreement or approval by the City regarding development of the Subject Property. Buyer will be solely responsible for any costs, permits or applications relating to the development of the Subject Property, including but not limited to an application for a change of zone, a General Plan Amendment, and/or conditional use permit or any other development application. Buyer further acknowledges that any development of the Subject Property is subject to discretionary approval by the City. Buyer further acknowledges that development of the Subject Property is also subject to the Declaration of Covenants and any approvals required by the Rancho California Business Park Association pursuant to said Declaration of Covenants. 14. BUYER SOLELY RESPONSIBLE FOR MAINTAINING AND IRRIGATING THE SUBJECT PROPERTY. The Subject Property has its own water meter. Buyer is solely responsible for maintaining the landscaping and irrigating the Subject Property. Buyer acknowledges that the City has informed Buyer that the Rancho California Business Park Association is not responsible for irrigation or maintenance of the Subject Property pursuant to the Stipulation for Entry of Judgment Submitted by Plaintiff Temecula and Defendant Musk Ox Properties, L.P. and Rancho California Business Park Association and Disclaimer of Interest of Rancho California Business Park Association in the eminent domain proceeding titled City of Temecula v. Musk Ox Properties, L.P., et al. in Riverside County Superior Court Case No. RIC 412305, a true and correct copy of which is attached as Exhibit "E" hereto. The parties in said proceeding agreed to require a separate meter on the Subject Property to not increase the existing landscape areas for which the Rancho California Business Park Association is responsible for maintaining. 15. BUYER'S CONTINGENCIES AND SATISFACTION. For the benefit of the Buyer, the Closing of Escrow and the Buyer's obligation to consummate the acquisition of the Subject Property shall be contingent upon and subject to the occurrence of all of the following (or the Buyer's waiver thereof, it being agreed that the Buyer can waive any or all such contingencies) on or before the Close of Escrow: 11086\0111\1 126315v.5doc -11- a. City provides to Buyer, pursuant to Buyer's request under the California Public Records Act, access to the files pertaining to the Diaz Road Realignment Project and/or the files pertaining to the City's acquisition of the larger parcel that are in the City's possession or under its control. b. For a period of 90 days after the Effective Date (the "Inspection Period"), upon not less than one day's advance written notice from Buyer to City, City shall provide Buyer and Buyer's agents and representatives with access to the Subject Property to make such reasonable non-destructive inspections, tests, copies, verifications, assessments, surveys and studies ("Inspections") as Buyer considers reasonably necessary or desirable under the circumstances regarding the Subject Property and its condition. Inspections may include, without limitation, inspections regarding zoning, building codes and other governmental regulations; imposition of governmental obligations and assessments; architectural inspections; engineering tests; economic feasibility and marketing studies; availability of sewer, water, storm drain and other utilities; availability of roads, access and services; soils, seismic, engineering and geologic reports; environmental assessments (including, but not limited to, soil borings during a Phase II environmental assessment), studies, tests and reports; structural and mechanical systems inspections; and availability of permits, land use entitlements, development rights and approvals and other governmental approvals. All Inspections shall be made at Buyer's sole cost and expense and shall not unreasonably interfere with City's operations at the Subject Property. Buyer shall repair any damage to the Subject Property caused by any Inspections. Prior to the expiration of the Inspection Period, Buyer shall provide City with written notice of Buyer's disapproval of the Subject Property, in Buyer's sole discretion. Buyer's failure to provide City with written notice of Buyer's disapproval shall be deemed to be an approval by Buyer of the Subject Property. If Buyer, in its sole discretion, disapproves the Subject Property for any reason, Buyer or City may terminate this Agreement by written notice to the other. If this Agreement is terminated pursuant to this Section 15(b), then the Deposit shall be returned to Buyer, and neither party shall have any rights or obligations arising out of this Agreement, except as otherwise set forth herein. C. The deposit with Escrow Holder of the Grant Deed pursuant to Section 6 above, the form of which is attached as Exhibit "D" to this Agreement. d. The deposit with Escrow Holder of a Lot Line Adjustment and Certificate of Compliance pursuant to Section 4 above, the form of which is attached as Exhibit "C" to this Agreement. Escrow Holder will record the Grant Deed and the Certificate of Compliance concurrently. e. Escrow Holder's commitment to issue in favor of the Buyer a CLTA Standard Coverage Owner's Policy of Title Insurance with liability equal to the Purchase Price showing the Buyer's fee interest in the Subject Property subject only to the Permitted Title Exceptions. 11086\0111\1 126315v.5doc -12- f The Buyer's approval prior to the Close of Escrow of any environmental site assessment, soils or geological reports, or other physical inspections of the Subject Property or the underlying real property that the Buyer might perform prior to the Close of Escrow pursuant to Section 9 above. g. The truth and accuracy, in all material respects, of all City's representations and warranties in this Agreement and the related documents executed or to be executed by City. If any of the contingencies have not been fulfilled within the applicable time periods, Buyer may, within five business days after the date by which the condition precedent was to be satisfied, either (i) waive the condition and close Escrow in accordance with this Agreement, or (ii) terminate this Agreement by written notice to City and Escrow Holder, and upon receipt of such notice Escrow Holder shall immediately return the Deposit to Buyer. 16. CITY'S CONTINGENCIES. For the benefit of the City, the Close of Escrow and the City's obligation to sell the Subject Property to the Buyer shall be contingent upon and subject to the occurrence of all of the following (or the City's waiver thereof, it being agreed that the City can waive any or all such contingencies on or before the Close of Escrow): a. Buyer shall have delivered to Escrow Holder the total Purchase Price for the Subject Property. b. Buyer shall have timely performed all other obligations of Buyer under this Agreement. If either of the contingencies have not been fulfilled within the applicable time periods, City may, within five business days after the date by which the condition precedent was to be satisfied, either (i) waive the condition and close Escrow in accordance with this Agreement, or (ii) terminate this Agreement by written notice to Buyer and Escrow Holder, and upon receipt of such notice Escrow Holder shall immediately disburse the Deposit to City. 17. CERTIFICATION OF NON-FOREIGN STATUS. City covenants to deliver to Escrow a certification of Non-Foreign Status in accordance with I.R.C. Section 1445, and a similar notice pursuant to California Revenue and Taxation Code Sections 18805 and 26131, prior to the Close of Escrow. 18. DEFAULT. In the event of a breach or default under this Agreement by either the City or Buyer, the non-defaulting party shall have, in addition to all rights available at law or equity, the right to terminate this Agreement and the Escrow for the purchase and sale of the Subject Property, by delivering written notice thereof to the defaulting party and to 11086\0111\1 126315v.5doc -13- Escrow Holder, and if the Buyer is the non-defaulting party, the Buyer shall thereupon promptly receive a refund of the Deposit. IF CITY TERMINATES THIS AGREEMENT DUE TO BUYER'S DEFAULT UNDER THIS AGREEMENT, THE DEPOSIT, TO THE EXTENT DEPOSITED INTO ESCROW (THE "DEFAULT COSTS") SHALL BE RETAINED BY CITY AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT CITY'S ACTUAL DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 18, THE PARTIES ACKNOWLEDGE THAT THE DEFAULT COSTS HAVE BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF CITY'S DAMAGES. PAYMENT/RETENTION OF THE DEFAULT COSTS AS LIQUIDATED DAMAGES SHALL BE CITY'S SOLE REMEDY IN LAW OR EQUITY IN THE EVENT OF BUYER'S DEFAULT UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS SECTION 18 LIMIT THE DAMAGES RECOVERABLE BY CITY AGAINST BUYER DUE TO BUYER'S OBLIGATION TO INDEMNIFY CITY IN ACCORDANCE WITH THIS AGREEMENT. FURTHER, BY THEIR SEPARATELY EXECUTING THIS SECTION 18, THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED. City's Initials: Buyer's Initials: 19. NOTICES. All notices and demands shall be given in writing by certified mail, postage prepaid, and return receipt requested, or by personal delivery. Notices shall be considered given upon the earlier of (a) personal delivery, (b) two (2) business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, or (c) one (1) business day following deposit with an overnight carrier service. A copy of all notices shall be sent to Escrow Holder. Notices shall be addressed as provided below for the respective party. The parties agree, however, that if any party gives notice in writing of a change of name or address to the other party, notices to such party shall thereafter be given as demanded in that notice: CITY: City of Temecula 43200 Business Park Drive Post Office Box 9033 Temecula, California 92589-9033 Attention: Shawn Nelson, City Manager 11086\0111\1 126315v.5doc -14- COPY TO: Richards, Watson & Gershon Attention: Peter M. Thorson, City Attorney 355 South Grand Avenue 40th Floor Los Angeles, California 90071-3101 BUYER: 43455 BPD, LLC 43455 Business Park Drive Temecula, California 92590-3605 Attention: Outdoor Channel Holdings, Inc. COPY TO: 43455 BPD, LLC 43455 Business Park Drive Temecula, California 92590-3605 Attention: Assistant General Counsel ESCROW First American Title Company HOLDER: 3625 14th Street Riverside, CA 92501 Attention: Debra Dunn, Escrow Officer Tel. No. (951) 787-1757 Fax No. (866) 558-2890 20. FURTHER INSTRUCTIONS. a. Each party agrees to execute such other and further supplemental reasonable standard instructions as may be necessary or proper in order to consummate the transactions contemplated by this Agreement; provided, however, in the event of a conflict between the terms hereof and the terms of such standard instructions, the terms hereof shall control. 21. AMENDMENTS. Any amendments to this Agreement must be in writing and will be effective only when duly executed by the City and Buyer and deposited with Escrow Holder. 22. BROKER/AGENT. Buyer warrants to City that it is not represented by a real estate broker and that no person or entity can properly claim a right to a commission, finder's fee, or other compensation with respect to the transaction contemplated by this Agreement. City warrants to Buyer that no person or entity can properly claim a right to a commission, finder's fee, or other compensation with respect to the transaction contemplated by this Agreement. If any broker or finder makes any claim for a commission or finder's fee, the party through which the broker or finder makes such claim shall indemnify, defend and hold the other party harmless from all liabilities, expenses, losses, damages or claims (including the 11086\0111\1 126315v.5doc -15- indemnified party's reasonable attorneys' fees) arising out of such broker's or finder's claims. 23. MISCELLANEOUS. a. Applicable Law. This Agreement shall be construed and interpreted under, and governed and enforced according to the laws of the State of California. b. Entire Agreement. This Agreement supersedes any prior agreement, oral or written, and together with the Exhibits hereto and any agreements delivered pursuant hereto, contains the entire agreement between the City and Buyer on the subject matter hereof. No subsequent agreement, representation or promise made by either party hereto, or by or to any employee, officer, agent or representative of either party, shall be of any effect unless it is in writing and executed by the party to be bound thereby. No person is authorized to make, and by execution hereof Buyer and the City acknowledge that no person has made, any representation, warranty, guaranty or promise except as set forth herein; and no agreement, statement, representation or promise made by any such person who is not contained herein shall be valid or binding on Buyer or the City. C. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. d. Time of Essence. The parties acknowledge that time is of the essence in this Agreement, notwithstanding anything to the contrary in the Escrow company's general Escrow instructions. If any date for performance herein falls on a Saturday, Sunday or holiday (as defined in Section 6700 of the California Government Code), the time for such performance shall be extended to 5:00 p.m. on the next day that is not a Saturday, Sunday or a holiday. e. Remedies Not Exclusive and Waivers. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies shall not constitute a waiver of the right to pursue other available remedies. f. Interpretation and Construction. The parties agree that each party has reviewed this Agreement and that each have had the opportunity to have their legal counsel review and revise this agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendments or Exhibits thereto. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person" and "party" include corporation, partnership, firm, trust, or association wherever the context so requires. The recitals and captions of the sections and subsections of this Agreement are for convenience and reference only, 11086\0111\1 126315v.5doc -16- and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement. g. Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. For purposes of this Agreement, facsimile signatures will be deemed to be original signatures, and will be followed by the immediate overnight delivery of original signature pages. h. Assignment ofAgreement. Neither Buyer nor City may assign or transfer their respective rights or obligations under this Agreement without first obtaining the prior written consent of the other, which consent may be granted or withheld in the sole and absolute discretion of the applicable party. Notwithstanding the foregoing, Buyer may assign its rights (but not its obligations) under this Agreement with notice to City, but without obtaining City's prior written consent, so long as the assignment is to one of the following (each a "Permitted Assignee"): (a) a corporation, partnership (limited or general), limited liability company or other entity which (i) controls, is controlled by, or under common control with Buyer, or (ii) results from the merger or consolidation with Buyer, or (b) a partnership (limited or general), limited liability company, corporation, or other joint venture company between Buyer and/or one or more of the legal entities described in subparagraph (a). i. Attorney's Fees. If either party hereto incurs attorney's fees in order to enforce or defend any of the terms, provisions or conditions of this Agreement or because of a breach of this Agreement by the other party, the prevailing party shall be entitled to recover reasonable attorneys' fees from the other party. [Signatures Follow] 11086\0111\1 126315v.5doc -17- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. ATTEST: Susan W. Jones, MMC, City Clerk Approved as to Form: Peter M. Thorson, City Attorney Approved as to Form: SELLER CITY OF TEMEC ULA CITY OF TEMECULA, a municipal corporation: Shawn Nelson, City Manager BUYER 43455 BPD, LCD By: Outdoor Channel Holdings, Inc., its Manager Thomas E. Hornish, COO and General Counsel 11086\0111\1 126315v.5doc -18- ACCEPTANCE BY ESCROW HOLDER The undersigned Escrow Holder hereby acknowledges receipt on , 2009, of a fully executed duplicate original (or counterparts) of the foregoing "PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN CITY OF TEMECULA AND 43455 BPD, LLC FOR AN APPROXIMATE 0.875-ACRE (38,101.678 SQUARE FOOT) PORTION OF ASSESSOR'S PARCEL NUMBER 921-021-088" signed by the City of Temecula, a municipal corporation, as seller, and 43455 BPD, LLC, as buyer. Escrow Holder shall (i) accept the foregoing Agreement, (ii) act as Escrow Holder under the Agreement, and (iii) be bound by the Agreement in the performance of its duties as Escrow Holder. However, Escrow Holder shall have no obligation, liability or responsibility under any amendment to the Agreement, unless and until the amendment is accepted by the undersigned in writing. The Escrow is assigned Escrow "ESCROW HOLDER": FIRST AMERICAN TITLE COMPANY, BY: NAME: TITLE: ESCROW OFFICER DATE: 11086\0111\1 126315v.5doc -19- RECORDING REQUESTED BY: City of Temecula AND WHEN RECORDED RETURN TO: City of Temecula Attention: City Clerk 43200 Business Park Drive Post Office Box 9033 Temecula, California 92589-9033 [SPACE ABOVE FOR RECORDER'S USE ONLY] APN: [X] Portion of APN 921-021-088 Transfer Tax: $ (computed on full value) GRANT DEED THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS: FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF TEMECULA, a municipal corporation ("Grantor") hereby grants to 43455 BPD, LLC ("Grantee"), certain real property consisting of an approximate 0.875-acre (38105 square feet) area located in the City of Temecula, County of Riverside, State of California, more particularly described on Exhibit "A-8A" and "A- 8B" and depicted on Exhibit "B-8A" and B-8B" ("Property") attached hereto and incorporated herein by this reference. Grantor's grant of the Property to Grantee is subject to the following: 1. General and special real property taxes and assessments and supplemental assessments for the current fiscal year. 2. All liens, encumbrances, easements, covenants, conditions and restrictions of record, including all quasi-public utility, public utility, public alley, public street and rights of way of record; 3. All matters that would be revealed or disclosed in an accurate survey of the Property; and 4. The Property is conveyed on an "AS IS. WHERE IS" BASIS, with all faults, latent and patent. 11086.0111\1135593v l .doc In WITNESS WHEREOF, the Grantor has executed this Grant Deed as of the date set forth below: Dated: .2009 GRANTOR CITY OF TEMECULA Maryann Edwards, Mayor ATTEST: Susan W. Jones, MMC APPROVED AS TO FORM: Peter M. Thorson, City Attorney 11086.0111\1135593v1.doc STATE OF CALIFORNIA } }ss. COUNTY OF } before a notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 11086.0111\1135593v l .doc EXHIBIT "A-8A" LEGAL DESCRIPTION THAT PORTION OF PARCELS 1 AND 2 OF PARCEL MAP NO. 19580 AS SHOWN BY A MAP ON FILE IN BOOK 154, PAGES 92 THROUGH 96 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF RIVERSIDE COUNTY, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL A BEGINNING AT THE NORTHERLY MOST CORNER OF PARCEL 1 OF SAID MAP, SAID POINT BEING ON THE WESTERLY RIGHT-OF-WAY OF DIAZ ROAD; THENCE SOUTH 47°01'03" WEST, 134.57 FEET ALONG THE NORTH LINE OF SAID PARCEL 1 TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 800.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 76°19'29" EAST, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHERLY LINE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05°52'42", AN ARC LENGTH OF 82.08 FEET; THENCE SOUTH 19033'12" WEST, 153.94 FEET TO THE POINT OF INTERSECTION WITH THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF PARCEL 3 OF SAID PARCEL MAP; THENCE NORTH 42°59'37" WEST, 112.52 FEET ALONG SAID SOUTHERLY PROLONGATION TO THE SOUTHEAST CORNER OF SAID PARCEL 3, SAID POINT ALSO LYING ON THE NORTHERLY LINE OF PARCEL 1 OF SAID PARCEL MAP; THENCE NORTH 47001'03" EAST, 207.37 FEET ALONG SAID NORTHERLY LINE TO THE TRUE POINT OF BEGINNING; CONTAINING 12,047.679 SQUARE FEET OR 0.277 ACRES, MORE OR LESS. THIS DESCRIPTION IS ALSO SHOWN ON THE ATTACHED EXHIBIT "B-8A" AND THEREBY BEING MADE A PART HEREOF. IR FESS, PREPARED UNDER MY SUPERVISION: p co q~ !q N0.26159 z Exp 3/31/10 n KEVIN B. COZAD 6r REGISTERED PROFESSIONAL ENGINEER NO. 26159 *sTq CML REGISTRATION EXPIRES 3/31/10 ~OFCAL~/ C:%My DocumenlslLegaRNEW LEGAL 2.doc EXHIBIT "B-8A° LINE TABLE Q r~ RA. NO. DIRECTION DISTANCE Lt S 19'33'12" W 153.94' L2 N 42'59'37" W 112.52' L3 N 4T01'03" E 207.37' H L4 S 4T01'03" W 341.94 CURVE TABLE N0. DELTA RADIUS LENGTH C l 05'52'42" 800.00' 82.08 PORTION BLOCK 2 OF PAUBA LAND & WATER CO. BUS. M.B. 111607 3 S4T01 b QAp'G~ ~06 Sib" j9. 134.5- y Nei c Q' ~FO lye S}~ ~ 0.277 AC. 0 \ 4 i I \N I \ V Q M SCALE IN FEET 1 " = 200' P.O.B. PARCEL A NLY MOST CORNER OF _ PARCEL 1 OF PARCEL MAP 19580 (PM 154/92-96) -'--T.P.O.B. PARCEL A 3Q 5~~ 5~. PARCEL I vJ. 19680 PAL 164/92-96 0 a D, SURVEYOR'S NOTE: THIS LEGAL DESCRIPTION do PLAT WAS PREPARED AT THE REQUEST OF THE CfiY OF TEME APN 921-020-075 PREPARED FOR CITY OF TEMECULA 43200 BUSINESS PARK DR. TEMECULA, CA 92590 (951) 694-6411 RECORD OWNER• CITY OF TEMECULA COLA THE PARCELS DESCRIBED HEREON MAY NOT BE LEGAL PARCELS, THIS LEGAL DESCRIPTION do PLAT DOES NOT CONSTITUTE A LAND DIVISION UNDER THE SUBDIVISION MAP ACT AT THE PRESENT TIME. ANY FURTHER SALE, LEASE OR FINANCING OF THE PARCELS WOULD REQUIRE A LAND DIASION APPROVAL. PREPARED BY: CIVIL / STRUCTURAL ENGINEERS MUNICIPAL CONSULTANTS / PLANNERS SURVEYORS / GPS 151 South Girard Street • Hemet, Co 92544 TEL (951) 652-4454 • FAX (951) 766-6942 E-MAIL kbcozodOkbcozod.com /a~ File name: .DWG EXHIBIT "A-8B" LEGAL DESCRIPTION THAT PORTION OF PARCELS 1 AND 2 OF PARCEL MAP NO. 19580 AS SHOWN BY A MAP ON FILE IN BOOK 154, PAGES 92 THROUGH 96 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF RIVERSIDE COUNTY, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL A BEGINNING AT THE NORTHERLY MOST CORNER OF PARCEL 1 OF SAID PARCEL MAP NO. 19580, SAID POINT BEING ON THE WESTERLY RIGHT-OF-WAY OF DIAZ ROAD; THENCE SOUTH 47001'03" WEST, 341.94 FEET ALONG THE NORTHERLY LINE OF SAID PARCEL 1, TO THE SOUTHEAST CORNER OF PARCEL 3 OF SAID MAP; SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 42°59'37" EAST, 112.52 FEET ALONG THE SOUTHERLY PROLONGATION OF THE MOST EASTERLY LINE OF SAID PARCEL 3; THENCE SOUTH 19033'12" WEST, 127.72 FEET; THENCE SOUTH 67°42'09" WEST, 35.89 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 611.11 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 22°26'24" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15°35'46", AN ARC LENGTH OF 166.32 FEET, TO THE MOST SOUTHERLY LINE OF SAID PARCEL 3; THENCE NORTH 47001'03" EAST, 194.74 FEET ALONG SAID SOUTHERLY LINE TO THE TRUE POINT OF BEGINNING. CONTAINING 26,053.999 SQUARE FEET OR 0.598 ACRES, MORE OR LESS. THIS DESCRIPTION ALSO SHOWN ON THE ATTACHED EXHIBIT "B-8B" AND THEREBY BEING MADE A PART HEREOF. PREPARED UNDER MY SUPERVISION: Q~pFESS/pN~ ~o ~co~ge g N0.26159 z EVIN B. COZAD,vio 9 REGISTERED PROFESSIONAL ENGINEER NO. 26159 * Q* REGISTRATION EXPIRES 3/31/10 s~ 4FC C:1My Documents%LegaIWEW LEGAL 1.doc EXHIBIT "B-8B° LINE TABLE Q V NO. DIRECTION DISTANCE L1 S 4759'37" E 112.52' L2 S 19'33' 12" W 127.72' L3 S 6742'09" W 35.89' L4 N 4TO1'03" E 194.74 L5 N 4TO1'03" E 3.55' PARCEL 0.598 C \ O i I e~ 51{ 3Q o~ Q B& SCALE IN FEET 1 " = 200' P.O.B. PARCEL A NLY MOST CORNER OF PARCEL 1 OF PARCEL MAP 19580 (PM 154/92-96) 50\ 50' PARCEL 1 \ P.M. 19680 \ \ PAL 164/82-96 \ O AG~L 2 4 / p M-\gAl 2,g6~ \ I pN oev~~,E~c l~ \ p0l ~ONp ~g3 `RE ~RDEp OBI pp0, - NCHO CALIFORNIA SURVEYOR'S NOTE: THIS LEGAL DESCRIPTION do PLAT WAS PREPARED AT THE REQUEST OF THE CITY OF TEMECULA. THE PARCELS DESCRIBED HEREON MAY NOT BE LEGAL PARCELS, THIS LEGAL DESCRIPTION do PLAT DOES NOT CONSTITUTE A LAND DIVISION UNDER THE SUBDIVISION APN 921-020-075 MAP ACT AT THE PRESENT TIME. ANY FURTHER SALE, LEASE OR FINANCING OF THE PARCELS WOULD REQUIRE A LAND DIVISION APPROVAL. PREPARED FOR: CITY OF TEMECULA 43200 BUSINESS PARK DR. TEMECULA, CA 92590 (951) 694-6411 RECORD OWNER: CITY OF TEMECULA rl IRVF' TAPI F 501 DELTA RADIUS LENGTH Cl 15.35'46" 611.00' 166.32 POR7JON BLOCK 2 OF PAUBA LAND x WATER CO, SUB. M.B. 111607 00• P 0 y oy° y° ~,yFgoe O~ pi os~dr ~ Fyr PREPARED BY- CIVIL c+ MUNICIPAL CONSULTANTS PLANNERS z SURVEYORS / GPS m rn 151 South Girard Street • Hemet, Co 92544 * TEL (951) 652-4454 . FAX (951) 766-8942 r E-MAIL kbcozad0kbcozod.com 7k File name: F:\0105900\PLAT\PLAT0l.DWG ITEM NO. 6 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Greg Butler, Director of Public Works DATE: August 11, 2009 SUBJECT: Amendment to the Western Riverside Council of Governments Joint Powers Agreement (at the request of Council Member Washington) PREPARED BY: Beryl Yasinosky, Management Analyst RECOMMENDATION: That the City Council approve the Amendment to the Western Riverside Council of Government's (WRCOG) Joint Powers Agreement (JPA) to include Eastern Municipal Water District and Western Municipal Water District as full voting members and authorize the Mayor to execute the Amendment on behalf of the City. BACKGROUND: Since July 1, 2008, representatives of the Eastern Municipal Water District (EMWD) and the Western Municipal Water District (WMWD) have acted as ex officio non- voting members on the WRCOG Executive Committee. On January 14, 2009, the WRCOG Administration & Finance Committee directed their staff and legal counsel to prepare documentation to continue this relationship and formally revise the WRCOG JPA to include the Water Districts as voting members of the Executive Committee and General Assembly. The Water Districts would also become voting members of the Administration & Finance Committee and the Technical Advisory Committee JAC). On May 11, 2009, the Executive Committee took action to formally revise the JPA. The Water Districts' membership in WRCOG is intended to improve water resource management strategies, regionally integrated projects and programs, and legislative agendas with water agency counterparts. Because the Water Districts do not participate in the Transportation Uniform Mitigation Fee (TUMF) Program, the Water Districts have agreed that their voting privileges will not extend to matters related to the TUMF program. This is consistent with their existing ex officio membership. In order to implement these changes, WRCOG has asked its member agencies to approve an amendment to the WRCOG JPA to include the Water Districts as voting members on the Executive Committee and General Assembly. In order to preserve WRCOG's authority to operate the TUMF program, the Water Districts will not be formal "contracting parties" to the JPA. However, WRCOG and the Water Districts will enter into separate MOUs to establish the legal relationship between each party, as well as the Water Districts' obligation to pay dues as set forth in the WRCOG budget. The attached amendment to the JPA does not set forth a specific term for this arrangement, but does permitthe Water District or WRCOG to terminate the relationship upon 60 days written notice. FISCAL IMPACT: There is no fiscal impact associated with the approval of this Agreement to cha ATTACHMENTS: 1. Amendment to the WRCOG JPA AMENDMENT TO THE JOINT POWERS AGREEMENT OF THE WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS TO ADD WATER DISTRICTS TO THE WRCOG GOVERNING BOARD This Amendment to the Joint Powers Agreement ("Amended Agreement") is made and entered into on the 11 th day of May, 2009, by and between sixteen cities located within western Riverside County and the County of Riverside (collectively the "Parties"). RECITALS WHEREAS, sixteen cities located within western Riverside County and the County of Riverside have entered into a Joint Powers Agreement on April 1, 1991, and through subsequent amendments thereto (the "JPA"), to form the Western Riverside Council of Governments ("WRCOG"); and WHEREAS, the Western Municipal Water District and the Eastern Municipal Water District (the "Water Districts") have approached WRCOG to express that their involvement in WRCOG will be beneficial to both WRCOG member agencies and the Water Districts: and WHEREAS, the Water Districts believe that cooperation with WRCOG will create synergies which will facilitate a variety of joint goals, including (1) improved coordination on major infrastructure planning; (2) improved and consistent implementation of landscape water conservation ordinances; (3) improved coordination of shared legislative and regulatory strategies; (4) better positioning to overcome resource management challenges; and (5) improved regional response and compliance with a merging case law tightening the connection between land use and water resources; and WHEREAS, WRCOG agrees and strongly supports coordination with the Water Districts, and believes that permitting the Water Districts membership on the WRCOG Governing Body is the best manner which would most efficaciously serve the interests of the WRCOG member agencies and the Water Districts; and WHEREAS, pursuant to Government Code sections 6500 et seq., the parties to the JPA desire to amend the JPA to add the Water Districts to the Governing Body of WRCOG. MUTUAL UNDERSTANDINGS NOW, THEREFORE, for and in consideration of the mutual covenants and conditions hereinafter stated, the Parties hereto agree as follows: 1 Section 1: Section 2.1 to the JPA is hereby amended to read as follows: 2.1 Parties. The parties to WRCOG shall be the County of Riverside and each city located within western Riverside County which has executed or hereafter executes this Agreement, or any addenda, amendment, or supplement thereto and agrees to such become a member upon such terms and conditions as established by the general counsel or Executive Committee, and which has not, pursuant to provisions hereof, withdrawn therefrom. Only the parties identified in this section shall be considered contracting parties to the JPA under Government Code section 6502. Section 2: Section 2.4 to the JPA is hereby amended to read as follows: 2.4 Governing Body. 2.4.1. WRCOG shall be governed by a General Assembly with membership consisting of the appropriate representatives from the County of Riverside, each city which is a signatory to this Agreement, Western Municipal Water District, and Eastern Municipal Water District, the number of which shall be determined as hereinafter set forth. The General Assembly shall meet at least once annually, preferably scheduled in the evening. Each member agency of the General Assembly shall have one vote for each mayor, council member, county supervisor, and water district board member present at the General Assembly. The General Assembly shall act only upon a majority of a quorum. A quorum shall consist of a majority of the total authorized representatives, provided that members representing a majority of the member agencies are present. The General Assembly shall adopt and amend by-laws for the administration and management of this Agreement, which when adopted and approved shall be an integral part of this Agreement. Such by-laws may provide for the management and administration of this Agreement. 2.4.2. There shall be an Executive Committee which exercises the powers of this Agreement between sessions of the General Assembly. Members of the Executive Committee shall be the Mayor from each of the member cities, four members of the Riverside County Board of Supervisors and the President of each Water District, the remaining member of the Board of Supervisors shall serve as an alternate, except any City Council, at its discretion, can appoint a Mayor Pro Tern or other city council member in place of the Mayor and each water district board, at its discretion, can appoint another board member in place of the President. The Executive Committee shall act only upon a majority of a quorum. A quorum shall consist of a majority of the member agencies. Membership of the Water Districts on the General Assembly and Executive Committee of WRCOG shall be conditioned on the Water Districts entering into a separate Memorandums of Understanding with WRCOG. 2 Section 3: Section 2.18 is hereby added to the JPA to read as follows: 2.18 Water Districts and TUMF Matters. Pursuant to this Joint Powers Agreement, WRCOG administers the Transportation Mitigation Fee ("TUMF") for cities in western Riverside County. The fee was established prior to the Water District's involvement with WRCOG and will fund transportation improvements for the benefit of the County of Riverside and the cities in western Riverside County. As such, the Western Municipal Water District and the Eastern Municipal Water District General Assembly and Executive Committee Members shall not vote on any matter related to the administration of the TUMF program or the expenditure of TUMF revenues. Section 4: Section 3.5 is hereby added to the JPA to read as follows: 3.5 Contributions from Water Districts. The provisions of section 3.4 above shall be inapplicable to the Western Municipal Water District and the Eastern Municipal Water District. The amount of contributions from these water districts shall be through the WRCOG budget process. Section 5: This amendment is to become effective upon execution by all of the parties that are currently signatories to the JPA. Section 6: All other provisions and terms of the JPA are to remain unchanged. Section 7: This Amendment may be executed in counterparts. IN WITNESS WHEREOF, the Parties hereto have caused this Amended Agreement to be executed and attested by their officers thereunto duly authorized as of the date first above written. [SIGNATURES ON FOLLOWING PAGES] 3 ATTEST: City Clerk City of Banning By: Dated: ATTEST: City Clerk City of Beaumont By:_ Dated: ATTEST: City Clerk City of Calimesa By: Dated: ATTEST: City Clerk City of Canyon Lake By: Dated: CITY OF BANNING By Mayor CITY OF BEAUMONT By Mayor CITY OF CALIMESA By Mayor CITY OF CANYON LAKE By Mayor 4 ATTEST: City Clerk City of Corona By: Dated: ATTEST: City Clerk City of Hemet By:_ Dated: ATTEST: City Clerk City of Lake Elsinore By: Dated: ATTEST: City Clerk City of Menifee By: Dated: CITY OF CORONA By Mayor CITY OF HEMET By Mayor CITY OF LAKE ELSINORE By Mayor CITY OF MENIFEE By Mayor 5 ATTEST: City Clerk City of Moreno Valley By: Dated: ATTEST: City Clerk City of Murrieta By:_ Dated: ATTEST: City Clerk City of Norco By: Dated: ATTEST: City Clerk City of Perris By: Dated: CITY OF MORENO VALLEY By Mayor CITY OF MURRIETA By Mayor CITY OF NORCO By Mayor CITY OF PERRIS By Mayor 6 ATTEST: City Clerk City of Riverside By: Dated: ATTEST: City Clerk City of San Jacinto By:_ Dated: ATTEST: City Clerk City of Temecula By: Dated: ATTEST: City Clerk City of Wildomar By: Dated: CITY OF RIVERSIDE By Mayor CITY OF SAN JACINTO By Mayor CITY OF TEMECULA By Mayor CITY OF WILDOMAR By Mayor 7 ATTEST: County Clerk County of Riverside By: COUNTY OF RIVERSIDE By Chairman Dated: ITEM NO. 7 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Greg Butler, Director of Public Works DATE: August 11, 2009 SUBJECT: Sixth Amendment to the Professional Services Agreement with Project Design Consultants for the design of the Murrieta Creek Bridge and Overland Drive Extension to Diaz Road; Project No. PW00-26 PREPARED BY: Mayra De La Torre, Senior Engineer- CIP Chris White, Assistant Engineer - CIP RECOMMENDATION: That the City Council approve the Sixth Amendment to the agreement with Project Design Consultants in an amount not to exceed $62,250.00 for additional services to complete the improvement plans for the Murrieta Creek Bridge and Overland Drive Extension to Diaz Road, Project No. PW00-26. BACKGROUND: On December 19, 2000, the City Council approved an agreement with Project Design Consultants (PDC) in the amount of $83,419.00 to perform an Alignment Study for the subject bridge. Subsequent to that, Amendment No.1, approved by Council on September 23, 2003, allocated an additional $370,200.00 plus a 10% contingency of $37,020.00 to complete the design. Amendments 2-5 totaling $19,320.84 were processed to cover additional geotechnical, structural and civil design work not included in the original scope and to extend the term of the agreement various times, ultimately through December 30, 2009. Amendment No. 6, in the amount of $62,250, includes additional scope of work required for the completion of the improvement plans. The increase in scope of work includes additional onsite drainage studies, the preparation of Traffic Control Plans, updating the soil report in accordance with new building codes, revisions to the landscape plans, the preparation of property plats and legal descriptions for portions of properties that need to be acquired and other miscellaneous design services. The work covered under Amendment No. 6 is needed to finalize the design of this project. FISCAL IMPACT: The Murrieta Creek Bridge and Overland Drive Extension project a Capital Improvement Project funded by Capital Project Reserves and Development Impact Fees (Street Improvements). Adequate funds are available in Account No. 210-165-602-5802 to cover the total amount of Amendment No. 6, which is $62,250.00. With Amendment No. 6, the total amount authorized for this design agreement will be $572,209.84. ATTACHMENTS: 1. Sixth Amendment 2. Location Map 3. Project Description SIXTH AMENDMENT TO AGREEMENT BETWEEN CITY OF TEMECULA AND PROJECT DESIGN CONSULTANTS MURRIETA CREEK BRIDGE AND OVERLAND DRIVE EXTENSION TO DIAZ ROAD PROJECT NO. PW00-26 THIS SIXTH AMENDMENT is made and entered into as of August 11, 2009 by and between the City of Temecula, a municipal corporation ("City") and Project Design Consultants ("Consultant") a Corporation. In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: This Amendment is made with the respect to the following facts and purposes: A. On December 19, 2000, the City and Consultant entered into that certain agreement entitled "City of Temecula Agreement for Consultant Services Murrieta Creek Bridge and Overland Drive Extension, Project No. PW 00- 26," ("Agreement") in the amount of Eighty Three Thousand Four Hundred Nineteen Dollars and No Cents ($83,419.00). B. The Agreement was amended on September 23, 2003 (via Amendment No. 1), in the amount of Three Hundred Seventy Thousand Two Hundred Dollars and No Cents ($370,200.00). In addition, the agreement reduced the cost of the original agreement from $83,419.00 to $63,795.84 and extended the term of the agreement to June 30, 2005. C. The Agreement was amended on January 12, 2005 (via Amendment No. 2) in the amount of Thirty Two Thousand Nine Hundred Forty Four Dollars and No Cents ($32,944.00) and extended the term of the Agreement to June 30, 2006 for additional geotechnical, structural and civil design services. D. The Agreement was amended on August 26, 2006 (via Amendment No. 3), extending the term of the Agreement to June 30, 2008 and again on June 23, 2008 (via Amendment No. 4), extending the term of the Agreement to June 30, 2009. E. The Agreement was further amended on March 10, 2009 (via Amendment No. 5) in the amount of Six Thousand Dollars and No Cents ($6,000.00) and extended the term of the Agreement to December 30, 2009 for a total Agreement amount of Four Hundred Seventy Two Thousand Nine Hundred Thirty Nine Dollars and Eighty Four Cents ($472,939.84). F. The parties now desire to increase payment for civil design services in the amount of Sixty Two Thousand Two Hundred Fifty Dollars and No Cents ($62,250.00) and amend the agreement as set forth in the Amendment. 2. Section 4. PAYMENT of the Agreement is hereby amended to read as follows: a. The City agrees to pay Consultant monthly, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, Fee Summary, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. Any terms in Exhibit B other than the scope of work to be performed, payment rates and schedule of payment are null and void. The Sixth Amendment amount shall not exceed Sixty Two Thousand Two Hundred Fifty Dollars and No Cents ($62,250) for additional design services and other miscellaneous items for a total Agreement amount of Five Hundred Thirty Five Thousand One Hundred Eighty Nine Dollars and Eighty Four Cents ($535,189.84). b. Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Manger. Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by City. 3. Exhibit A to the Agreement is hereby amended to include the additional civil design services as set forth on Attachment "A" to this Amendment, which is attached hereto and incorporated herein as though set forth in full. 4. Except for the changes specifically set forth herein, all other terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF TEMECULA CONSULTANT (Signatures of two corporate officers are required): By: Maryann Edwards, Mayor CONSULTANT Project Design Consultant 701 "B" Street, Suite 800 San Diego, CA 92101 (619) 235-6471 Rex S. Plummer, Principal/CEO ATTEST: By: Susan W. Jones, MMC City Clerk Gregory M. Shields, Principal/CEO APPROVED AS TO FORM: By: Peter M. Thorson City Attorney FSM Initials: Date: 3 ATTACHMENT A Attached hereto and incorporated herein is the additional scope of work and associated cost as provided by the Consultant. 4 PROJECT DESIGN CONSULTANTS 701 B STREET, SUITE ZSOO 61g.235.6471 TEL S,XN DIEGO, CA 92101 619.234.03.19 FAX i File: 1807.00 F09-265 July 28, 2009 Page 1 of 3 AMENDMENT NO. 6 OVERLAND DRIVE EXTENSION (CITY OF TEMECULA PROJECT NO. PW00-26) The following scope of work is to provide additional services to the original contract dated August 17, 2000. 1. ON-SITE DRAINAGE STUDY Complete the 2 year study and redesign for the new catch basin inserts. ITEM I TIME-AND-MATERIALS $ 5,000 II. WATER QUALITY MANAGEMENT PLAN (WQMP) Complete additional work required to accommodate the new catch basin insert. ITEM II TIME-AND-MATERIALS $ 2,000 III. TRAFFIC CONTROL PLANS Complete the Traffic Control Plans. ITEM III TIME-AND-MATERIALS $ 20,000 IV. SOILS DOCUMENTATION Modify and update the Geotechnical Report, per the new building codes. ITEM IV TIME-AND-MATERIALS $ 7,500 V. PROJECT MANAGEMENT ITEM V TIME-AND-MATERIALS $ 5,000 VI. LANDSCAPE DEVELOPMENT PLAN Complete the landscape development plans. ITEM VI TIME-AND-MATERIALS $ 8,000 VII. RIGHT-OF-WAY PLATS & PROPERTY DESCRIPTIONS Legal descriptions and plats for 2 temporary construction easements, 3 partial takes and 2 RCFCD easement. ITEM VII FIXED FEE $ 8,000 RAWPICONTRACT11800\1807AMEND6.DOC SAN DIEGO - PHOENIX - TEMECULA - BAKERSFIELD PROJECT DESIGN CONSULTANTS 1 File: 1807.00 F09-265 July 28, 2009 Page 2 of 3 VIII. RIGHT-OF-WAY EXHIBITS Three (3) right-of-way exhibits. ITEM VIII FIXED FEE $ 5,000 IX. REIMBURSABLES Reimbursable charges for blueprinting, photographic mylar reproduction, photocopying, travel and mileage, delivery services, telephone charges, computerized plotting, special graphic supplies, facsimiles, and other direct project charges incurred on behalf of Client will be billed to Client at cost plus 10%. ITEM IX TIME-AND-MATERIALS $ 1,750 TOTAL AMENDMENT 6 $ 62,250 EXCLUSIONS 1. Field survey and monumentation. 2. Utility consultant coordination. 3. Research title errors and additional easements not provided or disclosed by the title company. 4. Offsite or private easements. 5. Joint use agreements. 6. Subordination agreements. 7. Beneficiary consent to execute. 8. Certificate of correction(s). R:IWPICONTRACT11800\1807AMEND6. DOC PROJECT DESIGN CONSULTANTS File: 1807.00 F09-265 July 28, 2009 Page 3 of 3 AMENDMENT. NO. 6 FEE SCHEDULE OVERLAND DRIVE EXTENSION 1. On-Site Drainage Study Time-and-Materials $ 5,000 11. Water Quality Management Plan Time-and-Materials $ 2,000 III. Traffic Control Plans Time-and-Materials $ 20,000 IV. Additional Soils Documentation Time-and-Materials $ 7,500 V. Project Management Time-and-Materials $ 5,000 VI. Landscape Development Plan Time-and-Materials $ 8,000 VII. Temporary Construction Easement Fixed Fee $ 8,000 VIII. Right-of-Way Exhibits Fixed Fee $ 5,000 IX. Reimbursables Time-and-Materials $ 1,750 TOTAL FIXED FEE CH ANGE ORDER NO. 6(R) $ 62,250 R:IWPIC0NTRACT11 8 0011 8 0 7AN1E ND6, DOC PROJECTLOC4TION Project Title: NNRRIETA CREEK BRIDGE AND OVERLAND DRIVE EXTENSION TO DIAZ ROAD 57 0 6 G O C ~i Y N n 3 O ~i n LO" 0 ~ A A x U c N ~ N C W y O O 0 O C h ~ O A N ly O V O i U w O O ~ O F y O" U A ~ O b h _O N O 7 O I x O 3 p a OU U W ai+ 0 A 3 0 0 b bA .Y Vl T b N O U y O 0 3 s. N q 0 w N y C Q N b O U t0 i. N ~ L1 Q ~ O iy a+ W ti ~ V O U N U ~C O U 0 V~ L U to . U 7 w N 7 ~ O Ei U ~ U N U N ~ Q a ~ M O O Cl O O Cl M 7 0 0 0 0 0 0 v ~ rn o 0 0 0 0 0 In 0 0 0 0 O O ai C 00 h 1I'1 N W W W 70~ ~o M h N N O F 69 f~ 69 69 M 0 N M H N O N 0 0 0 Cl O o O O O O O O ~ 0 0 0 0 n Cl N i M ~ v i ~O N O N 1/j N ff3 f/i 69 69 69 69 (D CD Cl (D y O O ti O O rl O N 169 6) O O h ti N O W O N 69 69 69 O N = y O 7 R a+ A M ~ v 69 69 fA °o O d' a 69 O O O O N h W 69 IN II 49 O M O M o v o v ~D M O O, M N In O N O O N 69 f~ f~ I f~ 1 69 C> O O O Cl O O In O N ll- I a, 6 69 fA C) CD O O O O O O N [V 69 69 h Ih 69 III N OM III T 0 O O 1cn f's . ~ N GI C 'O ~ ~ V d O r+ N 3 CG u . C O y C p ~ " V. o f V V ~ d w V v v ~ C. d a d J o W d V R C. ID d a o U i y v a i L • • m C c L L ' 0 .'o ayi c C w o s d 0. O c 0 m... d Q'd U U A W E N U Q A F LL b O w^ r b U 7 O 7 w U U 7 m 0 p 0 U V N O" a4 N ITEM NO. 8 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Greg Butler, Director of Public Works DATE: August 11, 2009 SUBJECT: Settlement of Eminent Domain Proceeding: Litigation City of Temecula v. Borchard-Temecula, L.P., et al. (Riverside County Superior Court Case No. 519307) for the Pechanga Parkway Dual right Turn Lanes from Temecula Parkway, Project No. PW06-11 PREPARED BY: Amer Attar, Principal Engineer Paula Gutierrez Baeza, City Attorney's Office RECOMMENDATION: That the City Council: Approve the following documents substantially in the form attached: Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff City of Temecula and Defendant Borchard-Temecula, L.P. (subject to resolution of issues between the City and County of Riverside and the City and Pacific Bell Telephone Company); Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff City of Temecula and AT&T Corp.; and Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff City of Temecula and Verizon California Inc. 2. Authorize the City Manager to approve a settlement and Stipulation for Interlocutory Judgment with Pacific Bell Telephone Company on terms substantially similar to the terms set forth in the Stipulation for Interlocutory Judgment Submitted by Plaintiff City of Temecula and Verizon California Inc. BACKGROUND: The City filed the eminent domain proceeding entitled City of Temecula v. Borchard-Temecula, L.P. (Riverside County Superior Court Case No. RIC 519307) to acquire by eminent domain certain real property interests from the real property identified as Assessor's Parcel Numbers 961-010-072 and -073 ("larger parcel") for the Pechanga Parkway Dual Turn Lanes from Temecula Parkway (Project No. PW06-11) ("Project"). The City will acquire the following subject property interests from the larger parcel: • An approximate 2,978 square foot area in fee for public street purposes and all uses necessary or convenient thereto; • An approximate 2,774 square foot slope easement to support the adjacent roadway that will revert back to the property owner after the City constructs the Project in the manner proposed; and • An approximate 3,004 square foot temporary construction easement with at term of eighteen (months) to facilitate construction of the Project. The City and defendants property owner Borchard-Temecula, L.P., Verizon California, and AT&T Corp. have reached tentative settlements in this proceeding, subject to approval bythe City Council. Summarv of Proposed Settlement Terms with Borchard -Temecula Pursuant to the attached Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P., the City would pay Borchard-Temecula, L.P., the sum of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars), inclusive of statutory interest, attorney's fees, severance damages, costs relating to relocation of utilities from the larger parcel, any other damages, and costs as a full and final settlement of any and all of Defendant Borchard-Temecula's claims arising out of or in connection with the City's acquisition of the subject property interests described above, the Project for which the City is acquiring the subject property interests and this eminent domain proceeding. Borchard-Temecula would withdraw the $120,100.00 principal on deposit with the Court in this proceeding and the City would issue to Borchard-Temecula a warrant for the sum of $43,992.00 (Forty-three Thousand Nine Hundred Ninety-two Dollars). The Stipulation for Final Judgment further provides that Borchard-Temecula releases the City from all claims, damages, liabilities, actions based upon or arising in connection with the eminent domain proceeding, the City's acquisition of the subject property interests and the Project. Summary of Proposed Settlement Terms with AT&T Corp. AT&T Corp. has certain facilities on the larger parcel, including a fiber-optic line. These facilities were placed on the portion of the larger parcel that was previously the Old Pala Road right of way pursuant to an encroachment permit. The construction of the Project would require that AT&T relocate its manhole from its current location to another area of the subject property interests. The attached Stipulation for Entry of Interlocutory Judgment between the City and AT&T provides that AT&T will relocate the manhole at its sole cost and expense. The Stipulation also provides that AT&T is not entitled to any compensation in this proceeding and AT&T makes no claim for any deposit for the benefit of the property owner or any judgment awarding damages to defendant. Summary of Proposed Settlement Terms with Verizon California, Inc. Verizon California Inc. was named as a defendant in this proceeding because it has an easement that was recorded against the larger parcel on February 24, 2006 as Instrument No. 2006-0137620 of Official Records of the County of Riverside. Verizon's interests in the larger parcel and relevant portions of the subject property interests are in the nature of private easement rights and appurtenances. Although the construction of the Project would not impact Verizon's easement rights or facilities, Verizon's private easement rights were recorded prior in time to the filing of the eminent domain proceeding giving Verizon certain rights to relocation costs in the event that the City were to require the relocation of Verizon's facilities from the subject property interests in the future. Accordingly, the Stipulation for Interlocutory Judgment between the City and Verizon provides that Verizon agrees to be bound by the Final Judgment in Condemnation in this proceeding; that said Final Judgment will incorporate the terms of the Stipulation for Interlocutory Judgment; and that any judgment in the proceeding will not terminate, vacate, impair or modify or alter the existing validity or priority of Verizon's telecommunications facility easement and/or franchise right. The Stipulation also provides that the parties will continue to jointly use the overlapping area of the subject property interests and Verizon's easement. The Stipulation provides that if the City were to require the relocation of Verizon's facilities located in the private easement area in the future, the City would reimburse Verizon for its relocation expenses-applicable law imposes this obligation on the City in such circumstances. The Stipulation further provides that if the City were to require the relocation of Verizon's facilities that are located in the subject property interests pursuant to a public right of way or a franchise right, rather than from the private easement area, the City will not pay for the relocation of Verizon's facilities. Finally, the Stipulation also provides that Verizon is not entitled to any compensation in this proceeding and that Verizon makes no claim for any deposit for the benefit of the property owner or any judgment awarding damages to defendant. Summary of Interests of Pacific Bell Telephone Company The City named Pacific Bell and Telephone Company as a defendant in this proceeding based on an easement identified in the litigation guarantee for pole lines, conduits or underground facilities and incidental purposes in favor of Pacific Telephone & Telegraph Company recorded on September 21, 1917 in Book 470, Page 14 of Deeds. Pacific Bell is the successor to the interests of Pacific Telephone & Telegraph Company. The title company was not able to plot the location of the easement. Based on the poor quality of the easement document and the historical nature of the conveyance, City staff was also not able to plot the location of this easement. Pacific Bell's engineers and its right of way department believe that Pacific Bell may have a fiber optic line somewhere on the larger parcel. The City has not found any document other than the 1917 easement that would give Pacific Bell any interests in the area. City staff and Pacific Bell staff are meeting to discuss the location of the 1917 easement and the interests of Pacific Bell in the larger parcel and subject property interests. If Pacific Bell's interests and facilities (if any) in the larger parcel or subject property interests are based on the 1917 private easement, then terms similar to those set forth in the Stipulation for Interlocutory Judgment with Verizon would apply to Pacific Bell in this proceeding. Accordingly, City staff recommends that the City Council authorize the City Manager to approve a settlement and Stipulation for Interlocutory Judgment with Pacific Bell Telephone Company on terms substantially similar to the terms set forth in the Stipulation for Interlocutory Judgment Submitted by Plaintiff City of Temecula and Verizon California Inc. FISCAL IMPACT: The Stipulation for Entry of Final Judgment between the City and Borchard-Temecula, L.P. stipulates that the City and Borchard-Temecula agree that the total just compensation that the City shall pay in connection to this acquisition is $164,092.00, inclusive of statutory interest, attorney's fees and costs. The City deposited with the Riverside County Superior Court the sum of $120,100.00 as the probable amount of compensation when the eminent domain proceeding was filed. The City would need to pay an additional $43,992.00 to the property owner to complete this acquisition. Sufficient funds are available in Account No. 210-165-637-5700. ATTACHMENTS: 1. Stipulation for Entry of Final Judgment in Condemnation and Final Order of Condemnation between the City and Borchard- Temecula. L.P. Stipulation for Interlocutory Judgment between the City and AT&T Corp. Stipulation for Interlocutory Judgment between the City and Verizon California Inc. RICHARDS, WATSON, car. GERSHON A Professional Corporation PAULA GUTIERREZ BAEZA (198653) 1 Civic Center Circle, P.O. Box 1059 Brea, CA 92822-1059 Telephone: (714) 990-0901 Facsimile: (714) 990-6230 6 Attorneys for Plaintiff CITY OF TEMECULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE Z Z a V) o Qf a w ~ Q o~ 01 d a Ln c~ a ~ r V ~ e rJ r 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1R CITY OF TEMECULA, a municipal corporation, Plaintiff, Vs. BORCHARD-TEMECULA, L.P., a California Limited Partnership; COUNTY OF RIVERSIDE; AT&T CORP.; VERIZON CALIFORNIA INC.; EASTERN MUNICIPAL WATER DISTRICT; DOES 1 THROUGH 100, inclusive, and ANY AND ALL PERSONS UNKNOWN HAVING OR CLAIMING TO HAVE ANY TITLE OR INTEREST IN OR TO THE PROPERTY SOUGHT TO BE CONDEMNED HEREIN, Defendants. [(PROPOSED) ORDER APPROVING STIPULATION FOR ENTRY OF FINAL JUDGMENT IN CONDEMNATION AND FINAL ORDER OF CONDEMNATION AND AUTHORIZING THE WITHDRAWAL OF FUNDS ON DEPOSIT FILED CONCURRENTLY HEREWITH) Status Conference: Time: 8:30 a.m. Dept.: 01 August 17, 2009 Complaint Filed: February 17, 2009 [APNs 961-010-072 & -073] [Exempt from Filing Fees Pursuant to Govt. Code §6103] PLAINTIFF CITY OF TEMECULA ("Plaintiff' or "City") and DEFENDANT BORCHARD-TEMECULA, L.P., A California Limited Partnership ("Borchard-Temecula") Case Nor RIC 519307 HON. GLORIA CONNOR TRASK DEPT. 01 STIPULATION FOR ENTRY OF FINAL JUDGMENT IN CONDEMNATION AND FINAL ORDER OF CONDEMNATION AND FOR WITHDRAWAL, OF FUNDS ON DEPOSIT SUBMITTED BY PLAINTIFF CITY OF TEMECULA AND DEFENDANT BORCH ARD-TEMECULA, L. P. Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P. 11086-0157`.1 1 X11951 v3.doc hereby stipulate and agree as follows: 1. The City filed the Complaint in Eminent Domain herein to acquire by eminent 3 domain for public street purposes and all uses necessary or convenient thereto certain real 4 property interests from the real property, which is a vacant, unimproved lot located at the 5 southwest corner of Pechanga Parkway and Temecula Park-way in Temecula, California , 6 identified as Riverside County Tax Assessor's Parcel Numbers 961-010-072 and 961-010-073 7 ("larger parcel"). 8 2. The Complaint described the real property interests the City seeks to acquire from g the larger parcel for the Pechanga Parkway Dual Turn Lanes from Temecula Parkway (Project ~r 10 PW06-11) ("Project") as an approximate 2,978 square foot permanent easement for public street Z z 11 'z purposes and all uses necessary or convenient thereto, an approximate 2,774 square foot slope N Ce ° 1.2 easement to support the adjacent public roadway that will revert back to the property owner after o 13 ~1 the City's construction of the Project in the manner proposed; and an approximate 3,004 square a 14 foot temporary construction easement with a term of eighteen (18) months to facilitate n n 15 construction of the Project. 16 3. Borchard-Temecula warrants that it is the sole record fee owner of the larger 17 =r parcel. =y'` 18 4. Borchard-Temecula requested that the City acquire the fee interest instead of the 19 easement interest in the approximate 2,978 square foot area that the City will use for public street 20 purposes and all uses necessary or convenient thereto in connection with the Project. Plaintiff 21 advised the remaining named defendants of Borchard-Temecula's request. Accordingly, the City 22 and Borchard-Temecula agree, that with the Court's approval, the City will acquire in fee the 23 approximate 2,978 square foot area that the City will use for public street purposes and all uses 24 necessary or convenient thereto for the Project. The term "subject property interests" below is 25 ' used to describe collectively the approximate 2,978 square foot area that the City will acquire in 26 ` fee for public street purposes and all uses necessary or convenient thereto described more 27 particularly below in paragraph 18, the approximate 2,774 square foot slope easement to support Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P „ 11086-0157\1141951Q.doc I the adjacent public roadway that will revert back to the property owner after the City's 2 construction of the Project in the manner proposed described more particularly below in 3 paragraph 19, and the approximate 3,004 square foot temporary construction easement with a 4 term of eighteen (18) months to facilitate construction of the Project described more particularly 5 below in paragraph 20. 6 5. All of the named defendants in this proceeding were served or dismissed. 7 6. Defendant Eastern Municipal Water District executed a Disclaimer of Interest S herein on March 26, 2009, which was filed on or about April 3, 2009, disclaiming any right, title 9 or interest in or to the subject property interests or to the just compensation to be awarded for the i 10 subject property interests. 2- z 11 7. Defendant County of Riverside filed an Answer on May 4, 2009. The City and un ~ a 12 , Defendant County of Riverside resolved the issues between them in this proceeding pursuant to -Z 13 C N V) 14 8. Plaintiff and Defendant AT&T Corp. resolved all of the issues between them in U-) 15 this proceeding pursuant to a Stipulation for Entry of Interlocutory Judgment filed with the Court a 4 _ 16 on or about The Court entered an Interlocutory Judgment as to the Interests 17 of AT&T Corp. on ~R :iâ–ºj 18 9. Defendant Verizon California Inc. filed a Verified Answer to the Complaint on 19 April 17, 2009. Plaintiff and Defendant Verizon California Inc. resolved all of the issues 20 between them in this proceeding pursuant to a Stipulation for. Entry of Interlocutory Judgment 21 filed with the Court on or about The Court entered an Interlocutory 22 Judgment as to the Interests of Verizon California Inc. on 23 10. Defendant Pacific Bell Telephone Company (Doe 1) filed a Verified Answer to 24 the Complaint on April 16, 2009. Plaintiff and Defendant Pacific Bell Telephone Company (Doe 25 1) resolved all of the issues between them in this proceeding pursuant to 26 27 llI ~R -3- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, LP 11086-0157',1141951 v 3.doc 11. Plaintiff is filing concurrently herewith a Request for Dismissal of Defendants Does 2 through 100, Inclusive and of Defendants Any and All Persons Unknown Having or Claiming to Have Any Title or Interest in or to the Property Sought to be Condemned Herein. 12. On February 19, 2009, the City deposited with the Clerk of the Court pursuant to Code of Civil Procedure Section 1255.010 the surn of $120,100.00 (One Hundred Twenty Thousand One Hundred Dollars) as the probable amount of compensation for the subject property interests. a 13. No party has withdrawn any portion of said deposit. Defendant Borchard- 9 Temecula desires to withdraw the principal on deposit herein as set forth below in paragraph 10 22.a. 5o 11 14. The effective date of possession of the subject property interests is June 5, 2009 V) 0 ry 12 ("date of apportionment") pursuant to an Order for Possession entered by the Court on May 8, p 13 2009 and filed by the Court on May 18, 2009. ¢ 14 15. The City and Defendant Borchard-Temecula have agreed to fully resolve all of u' 15 Borchard-Temecula's claims arising in connection with or out of the City's acquisition of the o a 16 subject property interests, the Project for which the City is acquiring the subject property 17 ;av interests and this proceeding pursuant to this Stipulation for Entry of Final Judgment in 18 Condemnation and Final Order of Condemnation and for Withdrawal of Funds on Deposit 19 I, ("Stipulation for Final Judgment"). This Stipulation for Final Judgment is made with respect to 20 all claims arising out of or relating to the City's acquisition of the subject property interests 21 described below, the Project for which the City is acquiring the subject property interests and this 22 eminent domain proceeding. 23 16. Borchard-Temecula warrants that the party signing below on behalf of Borchard- , f 4 Temecula is authorized to legally bind Borchard-Temecula. 25 17. Borchard-Temecula also warrants that it is aware of no other person or entity that 26 has or claims any right or entitlement by lien or otherwise to the subject property interests or to 27 the just compensation to be awarded for the subject property interests, other than any of the other R -4- Stipulation for Entry of Final ;Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P 11086-0157\1 141951v1doc named Defendants in this lawsuit and said Defendants have resolved their claims in this proceeding as discussed above. Borchard-Temecula further warrants that all real property taxes and penalties and delinquencies on the subject property interests up to the June 5, 2009 date of 4 apportionment have been paid to the Riverside County Tax Collector. Borchard-Temecula further warrants that it will defend and indemnify the City in the amount of any such due and unpaid real property taxes, penalties and costs, including any legal fees and costs incurred by the City in connection with any such unpaid real property taxes, penalties and costs. 18. The approximate 2,978 square foot area in fee that the City is acquiring in this v proceeding for a public use, namely for public street purposes and all uses necessary or 10 convenient thereto is described as follows: Z 11 LEGAL DESCRIPTION FOR DEDICATION OF RIGHT-OF-WAY U-) a 12 A DEDICATION OF RIGHT-OF-WAY OVER AND ACROSS A PORTION OF ~ PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOW'N' BY MAP ON FILE IN o 13 BOOK 208, PAGE 56 THROUGH 61 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE 14 PARTICULARLY DESCRIBED AS FOLLOWS: 15 BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF- 16 WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A ~r 17 ' RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT 18 BEARS SOUTH 10° 14'05" WEST; 19 THENCE EASTERLY ALONG SAID CURVE AND SAID RIGHT-OF-WAY THROUGH A CENTRAL ANGLE OF 06° 58'22", AN ARC LENGTH OF 20 191..19 FEET TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP; 21 THENCE SOUTH 54° 18' 48" EAST, 31.29 FEET ALONG SAID CORNER 22 CUT BACK TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,588.00 FEET, A 23 RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02° 18'32" WEST, SAID CURVE ALSO BEING CONCENTRIC TO AND 88.00 FEET 24 SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP; 25 THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL 26 ANGLE OF 05° 04'2 1 AN ARC DISTANCE OF 140.59 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY 27 HAVING A RADIUS OF 134.00 FEET; 7R Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, LT I 1086-0157\1141951v.doc THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A 1 CENTRAL ANGLE OF 18" 37' 15", AN ARC LENGTH OF 43.55 FEET; 2 THENCE NORTH 63° 59' 51" WEST, 37.37 FEET TO THE NORTHWEST CORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE 3 POINT OF BEGINNING. u 4 CONTAINING 2,978 SQUARE FEET OR 4.07 ACRES MORE OR LESS. GRANTOR HEREBY RELEASES AND RELINQUISHES TO THE GRANTEE 5 ANY AND ALL ABUTTER'S RIGHTS OF ACCESS BETWEEN THE ABOVE 6 DESCRIBED PARCEL OF LAND AND THE GRANTOR'S REMAINING PROPERTY LYING SOUTHERLY THEREOF. EXCEPTING AND RESERVING THERETO THE FOLLOWING DESCRIBED ACCESS OPENING: 1 A 30-FOOT WIDE PUBLIC ACCESS OPENING DESCRIBED AS FOLLOWS: 9 1 . BEGINNING AT THE MOST NORTHWESTERLY CORNER OF THE 10 ABOVE DESCRIBED PARCEL 14; z © 11 THENCE SOUTH 63" 59' 51" EAST, 17.07 FEET TO THE TRUE POINT OF C'n ° `I BEGINNING OF SAID THIRTY FOOT WIDE ACCESS OPENII~~G; LIJ o 12 THENCE CONTINUING SOUTH 63" 59' 51" EAST, 20.30 FEET TO THE o 13 BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY, HAVING o 14 A RADIUS OF 134.00 FEET; a Q THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL n 4 I ANGLE OF 04° 45'48", AN ARC LENGTH OF 11.11 FEET TO THE END OF r SAID 30-FOOT WIDE PUBLIC ACCESS OPENING. 16 u~ < 17 The approximate 2,978 square foot area the City is acquiring in fee herein for public 18 street purposes and all uses necessary or convenient thereto is described in Exhibit "A" and I depicted on Exhibit "B" to this Stipulation for Final Judgment. Exhibits "A" and "B" are 20 incorporated herein by this reference. 21 19. The approximate 2,774 square foot slope easement that the City is acquiring in 22 this proceeding to support the adjacent public roadway that will revert back to the property 23 '1 owner after the City's construction of the Project in the manner proposed is described as follows: 24 LEGAL DESCRIPTION FOR SLOPE EASEMENT f; 25 A SLOPE EASEMENT OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 248, 26 PAGES 56 THROUGH 61. INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE PARTICULARLY 27 DESCRIBED AS FOLLOWS: R -6- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard=Temecula, L.P 11086-0157\1 14195 lvldoc BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF- WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10" 14'05" WEST; THENCE SOUTH 63° 59'51" EAST, 37.37 FEET ALONG SAID RIGHT-OF- 5 i WAY TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 134.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 26'00'09" WEST; 7 THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18" 37' 16", AN ARC DISTANCE OF 43.55 FEET TO THE 8 BEGINNING OF A COMPOUND CURVE CONCAVE. NORTHERLY HAVING A RADIUS OF 1,588.00 FEET, A RADIAL LINE THROUGH SAID 9 POINT BEARS SOUTH 07'22'53" WEST; 10 11 THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ©a 1 I ANGLE OF 05° 04' 21", AN ARC DISTANCE OF 140.59 FEET, TO THE .T_ < BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP A ~ c w ° 12 ~RADIA:L LINE THROUGH SAID POINT BEARS SOUTH 02° 18' 32" WEST Q , ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP o 13 ; t" Q 14 THENCE SOUTH 54° 18'44" EAST ALONG SAID CORNER CUT BACK, 4 21.63 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1 600.00 FEET A 15 , , RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01° 39'44" WEST; z 16 THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A < 17 CENTRAL ANGEL OF 05° 43'09", AN ARC LENGTH OF 159.71 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY 7y~ 18 HAVING A RADIUS OF 146.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07'22'53" WEST; 19 THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A 20 ! CENTRAL ANGLE OF 18° 37' 16", AN ARC LENGTH OF 47.45 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 26'00'09" WEST; 21 THENCE NORTH 63° 59'51" WEST, 33.65 FEET; 1 22 THENCE NORTH 08° 45' 19" EAST, 12.56 FEET TO THE NORTHWEST 23 CORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. 24 i CONTAINING 2,774 SQUARE FEET OR 0.06 ACRES MORE OR LESS. 25 The approximate 2,774 square foot slope easement the City is acquiring in this 26 proceeding is described in Exhibit "A-1" and depicted on Exhibit "B-1" to this Stipulation for 27 gg Final Judgment. This approximate 2,774 square foot slope easement will revert back to the -7- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, LP 11086-0157] 14195 1 v3.doc record fee owner after the City constructs the Project in the manner proposed. Exhibits "A-1" and "B-I" are incorporated herein by this reference. J 20. The approximate 3,004 square foot temporary construction easement that the City 4 is acquiring in this proceeding with a term of eighteen (18) months from the June 5, 2009 date of 5 apportionment to facilitate construction of the Project is described as follows: 6 LEGAL DESCRIPTION FOR TEMPORARY CONSTRUCTION EASEMENT A TEMPORARY CONSTRUCTION EASEMENT OVER AND ACROSS A 8 PORTION OF PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 208, PAGES 56 THROUGH 61 INCLUSIVE OF 9 PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: 10 COMMENCING AT THE MOST NORTHWESTERLY CORNER OF 11 T PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF-WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID 12 MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID o W 13 POINT BEARS SOUTH 10° 14' 05" WEST; Ln _ a 14 THENCE SOUTH 08° 45' 19" WEST, 12.56 FEET TO THE TRUE POINT OF Q BEGINNING; 15 < r THENCE SOUTH 63° 59' 51" EAST, 33.65 FEET TO THE BEGINNING OF A _ 16 TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 146.00 FEET; 17 y THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL 18 ANGEL OF 18° 37' 16", AN ARC DISTANCE OF 47.45 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY 19 HAVING A RADIUS OF 1,600.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07° 22' 53" WEST; 20 THENCE EASTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC 2I TO AND 100.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE j HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL 22 ANGLE OF 05° 43'09", AN ARC DISTANCE OF 159.71 FEET, TO A POINT ON THE CORNER CUT BACK AS SHOWN TON SAID MAP, A RADIAL 23 LINE THROUGH SAID POINT BEARS SOUTH 01° 39'44" WEST; 24 THENCE SOUTH 54° 18' 44" EAST ALONG SAID CORNER CUT BACK 21.27 FEET TO THE BEGINNIING OF A NON-TANGENT CURVE 25 CONCAVE NORTHERLY HAVING A RADIUS OF 1,612.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01° 02'08" WEST; 26 THENCE WESTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC 27 TO AND 112.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, LT 11086-0157\1141951v3.doc HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL 1 ANGLE OF 06° 20'45'-, AN ARC LENGTH OF 178.54 FEET TO THE BEGIN?MNG OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A. RADIUS OF 158.00 FEET, A RADIAL LINE THROUGH SAID 3 POINT BEARS SOUTH 07022'53" WEST; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL 4 ANGLE OF 18" 37' 16", AN ARC LENGTH OF 51.35 FEET; 5 THENTCE NORTH 63° 59' 51" NEST, 29.92 FEET; 6 THENCE NORTH 08° 45' 19" EAST, 12.56 FEET TO THE TRUE POINT OF BEGINNING. 7 8 CONTAINING 3,004 SQUARE FEET OR 0.069 ACRES MORE OR LESS. The approximate 3,004 square foot temporary construction easement with a term of 9 eighteen (18) months from the June 5, 2009 date of apportionment that the City is acquiring in 10 z this proceeding is described in Exhibit "A-2" and depicted on Exhibit "B-2" to this Stipulation 0 for Final Judgment. The term of the temporary construction easement expires on December 11, 12 0 13 ~i 2010. Exhibits "A-2" and "B-2" are incorporated herein by this reference. z o~ n 14 21. The City and Defendant Borchard-Temecula agree that the total just 4 15 compensation that the City shall pay to or for the benefit of Borchard-Temecula in connection ° with this proceeding is the sum of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two z 16 Dollars), inclusive of statutory interest, attorney's fees and costs. 17 22. The City and Defendant Borchard-Temecula agree that the total just 18 compensation of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars) shall be 19 paid as follows: 20 a. The Riverside County Clerk shall issue a warrant for the benefit of 21 Borchard-Temecula in the amount of S 120,100.00 (One Hundred Twenty Thousand One 22 ~L Hundred Dollars), representing the principal on deposit in this proceeding, payable to Borchard- 23 !I Temecula, L.P., and shall mail said warrant by first-class mail addressed as follows: 24 Borchard-Temecula, L.P. 25 c/o John Heffernan Heffernan & Boortz, Attorneys 26 23 Corporate Plaza, # 200 27 Newport Beach, California 92660 -9- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P 11086-0157\1141951vIdoc b. Within fifteen (15) business days of the filing of the fully executed original of this Stipulation for Final Judgment with the Court, the City shall issue for the benefit of Defendant Borchard-Temecula, a warrant for the sum of 543,992.00 (Forty-three Thousand 4 Nine Hundred Ninety-two Dollars) payable to Borchard-Temecula, L.P. and shall mail said 5 warrant by first-class mail addressed as follows: U A Borchard-Temecula, L.P. c/o John Heffeman Heffernan & Boortz, Attorneys 23 Corporate Plaza, 200 8 Newport Beach, California 92660 9 23. Within five (5) business days of the receipt of the warrant from the Riverside 10 County Clerk described above in paragraph 22.a., John Heffernan shall execute on behalf of a _ 11 Borchard-Temecula and return to counsel for the City an Acknowledgement of Receipt of Just V w u 12 Compensation of Eminent Domain Deposit in the form attached as Exhibit "C" hereto. 13 o 24. Within five (5) business days of the receipt of the warrant from the City of a 14 Temecula described above in paragraph 22.b., John Heffernan shall execute on behalf of 15 Borchard-Temecula and return to counsel for the City an Acknowledgement of Receipt of Just z 16 Compensation of Warrant from the City of Temecula in the form attached as Exhibit "D" hereto. V o 17 25. The Riverside County Clerk shall issue a warrant payable to the City of Temecula "'O 18 for all interest accrued on the S 120,1.00.00 principal on deposit with the Court in this proceeding 19 from the date of deposit to the date of payment and shall mail said warrant by first-class mail 20 addressed as follows: 21 City of Temecula Attention: Paula Gutierrez Baeza 22 Richards, Watson & Gershon Post Office Box 1059 23 Brea, California 92822-1059 24 26. The City agrees that if the existing driveway on the larger parcel is impacted by 25 the construction of the Project in the manner proposed, the City will construct a new similar 26 driveway as part of the Project based on the new right-of-way line. The parties acknowledge that 27 existing ingresslegress movements from the larger parcel are not altered by the Project. The 2R -10- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P 11086-0157\1141951v1doc parties further acknowledge, however, that ingress/egress movements may change in the future on development of the larger parcel based on. traffic circulation, the nature of the proposed development, traffic safety and other matters considered by the City's Public Works Department. 27. Defendant Borchard-Temecula expressly acknowledges that payment by the City o cn w z o a Q Y Q w v c~ V 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 ?R of the total just compensation of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars), consisting of the $120,100.00 principal on deposit with the Court and the $43,992.00 warrant from the City described above in paragraph 22.b. shall be in full and final settlement of any and a] I of Defendant Borchard-Temecula's claims arising out of or in connection with the City's acquisition of the subject property interests described above and in the attached Exhibits "A", "B", "A-I", "B-1" "A-2" and "13-2", and includes and satisfies any and all other payments, if any that the City may be required by law to pay to Defendant Borchard-Temecula in this eminent domain proceeding. The total just compensation of $164,092.00 (One Hundred Sixty- four Thousand Ninety-two Dollars) includes but is not limited to any and all claims of Borchard- Temecula arising out of or in connection with the City's acquisition of the approximate 2,978 square foot area in fee for public street purposes and all uses necessary or convenient thereto described on Exhibit "A" and depicted on Exhibit "B" hereto; the approximate 2,774 square foot slope easement that will revert back to the property owner after the construction of the Project in the manner proposed described on Exhibit "A-I" and depicted on Exhibit "13-1" hereto, and the approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months from the Tune 5, 2009 date of apportionment described on Exhibit "A-2" and depicted on Exhibit "B-2" hereto, including, but not limited to compensation for these subject property interests, severance damages, cost to cure damages, inverse condemnation, precondemnation damages, de facto taking, loss of goodwill pursuant to Code of Civil Procedure Section 1263.510, damages for violation of civil or constitutional rights costs, litigation expenses, expert witness fees, appraisal costs, attorneys fees, interest, relocation assistance and/or benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.), if applicable, or under Title 1, Division 7, Chapter I of the California -I1- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P 11086-0157114195 I vIdoc Government Code (Section 7260 et seq.), improvements pertaining to the realty, fixtures, furniture and equipment, moving expenses, abandonment costs, costs relating to the relocation of utilities from the larger parcel, or any other damages of every kind and nature suffered or to be suffered by Borchard-Temecula by reason of the City's acquisition of the subject property interests, the Project for which the City is acquiring the subject property interests and this eminent domain proceeding. o~ U-) ~ a V ~ Q z 0 " U Q Ln 4 o V ~ r ~r _N~ 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9R 28. In effecting this Stipulation for Final Judgment, each of the parties has had the opportunity to receive full legal advice about its provisions, and each signatory hereto certifies that he or she has read all of this Stipulation for Final Judgment and understands it. This Stipulation for Final Judgment has been fully negotiated between the City and Defendant Borchard-Temecula and will be construed as if drafted by all parties to it. 29. Except as otherwise set forth in this Stipulation for Final Judgment and except for any breach of terms or conditions contained in this Stipulation for Judgment, Defendant Borchard -Temecula waives and forever releases the City, including its successors, assigns, officers, employees, attorneys, agents, representatives and anyone acting on or for the City's behalf, of and from any and all claims, demands, actions or causes of action, liabilities, or claims for further compensation, known or unknown, based upon or arising in connection with the Complaint in Eminent Domain herein, the Project for which the City is acquiring the subject property interests or from the City's acquisition of the subject property interests. The foregoing waiver shall become effective upon issuance of the warrant described in paragraph 22.a. above or the City's issuance of a warrant described in paragraph 22.b. above, whichever is later. 30. By such release, Defendant Borchard-Temecula waives its rights, if any, under California Civil Code Section 1542, which provides, "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known to him or her must have materially affected leis or her settlement with the debtor." Ill -12- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P 11086-015T1 14195 lvld.oc t 31. Notwithstanding paragraphs 29 and 3a above, Defendant Borchard-Temecula's 2 waiver of rights and release of claims shall not extend to and is not intended to extend to claims 3 related to or alleged to arise out of the negligence on the part of the City, its agents or 4 contractors, in connection with the physical construction of the Project as planned and designed. 32. The City and Defendant Borchard-Temecula agree that at any time following the 6 City's receipt of the Acknowledgement of Receipt of Just Compensation of Eminent Domain 7 Deposit described above in paragraph 23 and the City's receipt of the Acknowledgment of 8 Receipt of Just Compensation of Warrant from the City of Temecula described above in 9 paragraph 24, the City may request that this Court enter a Final Judgment in Condemnation and 10 Final Order of Condemnation in the forms attached hereto as Exhibits "E" and "F", respectively. Z z Q 11 33. This Stipulation for Final Judgment is made, executed, entered into and intended (A C CIE: . 12 G to be performed within the State of California, and is to be construed tinder California law. o 13 34. If any provision of this Stipulation for Final Judgment is held invalid, void or a 14 unenforceable, the remaining provisions will nevertheless remain in full force and effect and will o Q 15 not be impaired or invalidated thereby. 16 35. The City and Defendant Borchard-Temecula agree that they will each bear their < 17 own attorneys fees and costs in this eminent domain proceeding. Yj 18 36. The City and Defendant Borchard-Temecula waive the right to move for a new 19 trial and to all other post judgment proceedings and the right to appeal herein. 20 37. The City and Defendant Borchard-Temecula agree that this Stipulation for Final 21 Judgment may be executed in counterparts, each of which will be deemed an original instrument, 22 and all, when taken together will constitute the Stipulation for Final Judgment. 73 IT IS SO STIPULATED. 24 25 26 27 ~R -13- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P 11086-0157\1 1419510.doc ~ z o U-) W ~ y ~ a 0 O a Q s~ cn R C~ w ~ a ~ !r4 u :rj 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7R DATE. 2009 .Attest: By: Susan W. Jones, MMC, City Clerk Approved as to form: DATE: '2009 RICHARDS, WATSON & GERSHON A Professional Corporation PAULA GUTIERREZ BAEZA By: Paula Gutierrez Baeza Attorneys for Plaintiff CITY OF TEMECULA PLAINTIFF CITY OF 'T'EMECULA, a municipal corporation Maryann Edk ards. Mayor -14- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-Temecula, L.P 11086-0157\11419510.doc 1 4 5 6 7 8 9 10 z = 11 U-) 0 w g 12 Z 13 V O ~r a 14 15 c~ 16 V ° 17 ~M r 18 19 20 21 22 23 24 25 26 27 ?R DATE: 2009 Approved as to form: DATE: , 2009 WALDRON & BRAGG, LLP GARY A. WALDRON By: Gary A. Waldron Attorneys for Defendant BORCHARD-TEMECULA, L.P. DEFENDANT BORCHARD-TEMECULA, L.P., A CALIFORNIA LIMITED PARTNERSHIP Bv: Borchard-Temecula LLC, a California Limited Liability Company, its sole Manager By: John B. Heffernan, Manager -15- Stipulation for Entry of Final Judgment and Final Order of Condemnation Submitted by Plaintiff and Defendant Borchard-"Temecula, L.P 11086-01 57%11419510,doc EXHIBIT "A" LEGAL DESCRIPTION FOR DEDICATION OF RIGHT-OF-WAY A DEDICATION OF RIGHT-OF-WAY OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 208, PAGES 58 THROUGH 81 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF4VAY LINE OF STATE HIGMAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10' 14'050 WEST; THENCE EASTERLY ALONG SAID CURVE AND SAID RIGHT-OF-WAY THROUGH A CENTRAL. ANGLE OF 08' 58'22". AN ARC LENGTH OF 191.19 FEET TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP; THENCE SOUTH 5* 18' 4W EAST, 31.29 FEET ALONG SAID CORNER CUT SAO( TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,588.40 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02' 18' 32' WEST, SAID CURVE ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0.S° 04' 21 AN ARC DISTANCE OF 140.89 FEET TO THE BEGINNINGS OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 134.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18' 3T 15', AN ARC LENGTH OF 43.55 FEET; THENCE NORTH 63° SW 51' WEST, 37,37 FEET TO THE NORTHWESTCORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. CONTAINING 2,978 SQUARE FEET OR €1.07 ACRES MORE OR LESS, GRANTOR HEREBY RELEASES AND RELINQUISHES TO THE GRANTEE ANY AND. ALL ASUTTER'S RIGHTS OF ACCESS BETWEEN THE ABOVE DESCRIBED PARCEL. OF LAND AND THE GRANTOR'S REMAINING PROPERTY LYING SOUTHERLY THEREOF. EXCEPTING AND RESERVING THERETO THE FOLLOWING DESCRIBED ACCESS OPENING: A 30-FOOT WIDE PUBLIC ACCESS OPENING DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF THE ABOVE DESCRIBED PARCEL 14; Page 1 of 2 THiL~VCE SOUTH OW 59! 61' EAST,17.07 FEET TO THE TRUE POINT OF BEGINNING OF SAID THIRTY FOOT WIDE ACCESS OPENING: THENCE CONTINUING SOUTH 639 S9' 51' EAST. 20.30 FEET TO THE BEGR 4WG OF A TANGENT CURVE CONCAVE NORTHERLY. HAVING A RADIUS OF 134.00 FEET. THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04' 45' Or. AN ARC LENGTH OF 11.11 FEET TO THE END OF SAID 30-FOOT WIDE PUBLIC ACCESS TMs DLrsCfwnON ALSO BEING SHOWN ON THE ATTACHED EXHIBIT'S'. AND THEREBY BEING MADE A PART HEREOF. PREMED ME OR UNDER MY SUPERVISK)N: 0 PROFESSIONAL. CIVIL. ENGINEER NO.23159 KEVIN B. ZAD A rr*etavv3*mt,n REGISTRATION EXPIRES 3131M Pago 2 of 2 DEDICATION OF RIGHT OF WAIF A DEDICATION OF RIGHT-OF-WAY OVER MO ACROSS A PORTION OF PARCEL 14 € F PARCEL MAP NO. 30180 AS SHOWN BY MAP ON RILE IN BOOK 208, PAGES 58 THROUGH 81 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA , a r J SR 79 fun P.4 B. a op- lTN~`PAR T 1 71,x" "Q:e~ ev VIK CORNER CUTBACK PARCEL 14-/ ~~7.'Z'~`• t:E DETAIL. IILOW PARCEL MAP 30180 t ©=02.42'26 : o P.M. 208/56-61 R•1067.00 L-50.41') 87.00 $ PARCEL 14 r, 0.053 ACRES} 7 ~~i8gj g~ P.O.B.. PARCEL 13 a~ ",by certify, under the penally of perJu~ that the 4f TRACT 20319 above mw jomgohV , is ~ ~of o~ e M.B. 18t/54-58 s s cry '~-OO O9 W -712 W& SCALL- i .ea Not TO SCALE ft fw EX>• W "A 1" #.EGAI. DE3G`R~'ii0N FOR SLR EASB EW A SLOPE EASEMENT OVER AND ACROSS A PORTION OF PARCIB.14 OF PARCEL MAP NM 30140 AS SHOWN BY MAP ON FILE N BOOK 2006 PAGES 56 THROUGH 61 INCrt,U M OF PARCEL. MAPS RECORDS OF RIVEIISIDE COUNTY, CALJFORNIA, OEM MONRI PARTICULARLY DESCRIBED AS FOLLOWS., BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAD POINT OEM ON THE SOUTHERLY RIOW'-OF-WAY LINE OF STATE HIGHWAY 74 AS SHOWN BY SAID MAP, SAID RXW-OP-WAY BEING A CURVE CONCAVE N0RTIO IA 1.Y, HAVING A RADIUS OF 1^00 FEET, A RADIAL LINE THROUGH BALD POW BEARS SOUTH 10' IN 06" WEST; THENCE SOUTH $30 W 61" EAST, 37.37 FEET ALONG SAID RNW-OF-WAY TO THE. BEGINNING OF A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 134X0 FEET, A RADIAL LANE THROUGH SAID POINT BEARS $OUT" 26' 00' 04" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16' 3T i6', AN ARC DISTANCE OF 43,66 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAYING A RADIUS 0101588 ;00 FEET, A RADIAL LINE TOUGH SM POINT SEARS SOUTH 07- 2r 63" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 06.W 21 ; AN ARC DISTANCE OF 140M FEET, TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 03418' 32" WEST, ALSO BEING CONCENTRIC TO AND 66.00 FEET SOUTHERLY OF THE CENTER LINE OF'STATIE HIGHWAY 74 AS SHOWN BY SAID MAP; THENCE SOUTH 64" 16' '4t" EAST ALONG SAID CORNER CUT BACK, 21.63 FEET TO THE BEGINNING OF A NoFIMTM1ti w CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 140.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH &I s 30' 44w WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05• AN ARC LENGTH OF 1 W71 FEET TO TINS BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 146.00 FEgT, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07.22' 63" WEST; Tta" NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF ISO 3T 16", AN ARC LENGTH OF 47AS FEET, A RADIAL LINE THROU42H SAID POINT BEARS SOUTH 26 ` OW 04" WEST; THENCE NORTH 630 W 61" WEST, $3.83 FEET; THENCE NORTH 48.4F 1I"' EAST, 12.66 FEET TO THE NORTHWEST CORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. CONTAINING 2,774 SQUARE FEET OR 0.0 ACRES MORE OR LES& certify, under the penefty of penury, that the . i bregotng is a true and correct of. an Pool 0(2 0+ d a lrlH3oi13zA Rft ' ~ , ydal y F. Ne. iYi 7d. CK'~$Y:KGO7.AD $lapr due 0 THIS DESCRI"ON ALSO BEING SHOWN ON THE ATTACHED EXHIBIT "B'. AND THEREBY BEING MADE A PART HEREOF: PRIPARED ME OR UNDER MY SUPERNIUK Ly 11 EVIN B. COZAD ra2 PROFESSMAL CIVIL ENGINEER NO.26169 REGLSTRATION EXPIRES 3131M EXHIBIT "B -1" SLOPE EASEMENT MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 208 I THROUGH 61 INCLUSIVE OF PARCEL MAPS, RECORDS 20P O 1 COLBY, CALFN" 00 ~(A •02"47' " R•1067.0(r • I~t Lt30.41'~ P.~ - IA3 „ CORNER CUTBACK PARCa 11~1. PARCEL MAP 30180 P.M. 208/56.81 PARCEL14 (1.053 ACRES) 406~"'~ . e* dP& TRACT 20318 M. B. 181/54-58 SCALE: NO INDICATES RECORD DATA PER PM 20MOI EXHIBIT "A - x" 1 EGAI. Dlec 'itON F4DR 7BWORARY t FTRUC 10H EASEMENT A 781PORARY CCNSTRUCTION EASEMENT OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP N0. 30140 AS SHOWN BY MAP ON FILE IN BOOK 901. PAGES 56 THROUGH 61 NCLUSNE OF PARCEL MAPS. RECORD! OF MOON COUNTY, CALIFORNIA, DOW MORE PARTM ARU.Y DESCRIBED AS FOLLOWS: OOYwtINC% 13 AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID PONT BEND ON THE SOUTHERLY RIGHT-OFLWAY LEtE OF STATE HWWAY 71 AS SHOWN BY SAID MAP, SAID RIGHT-ORWAY IWO A CURVE CONCAVE HORTWILY, HAVING A RADIUS OF 1,IMA FELT, A RADIAL LINE THROUGH SAID PONT DEAR! SOUTH 10.14' 04" WEST; THRICE SOUTH O/' 4w 11" WEST,1? 34 FEET TO THE TRUE POINT OF BEQMENW4i; THlENCS SOUTH 63.11' 41" EAST, 33.41 FEET TO THE BEGINNING OF A TANQENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS Of 14100 FEET; THOM MASTERLY ALONG SAID CURVE THOROUGH A CENTRAL ANGLE OF 1943T 14", AN ARC DISTANCE OF 47,4E FEET TO THE LNG OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,600M FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07• ZZ' Sr WEST; TH OM EASTERLY ALONG SAID CURVE, ALSO BNBNG CONCENTRIC TO AND 100.00 FRET SODUTIOMY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 04.45' W. AN ARC DISTANCE OF 160.71 FEET, TO A PONT ON THEN CORNER CUT BACK AS SHOWN ON $NO MAP, A RADIAL LIME THROUGH SAID PONT BEARS SOUTH 01.311' 44" WEST; TH@!CE SOUTH 54- IV 44~ EAST ALONG SAID CORNER CUT BACK, 21,27 FUT TO THE MM M OF A NOWTANQENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,41944 FEET, A RADIAL LINK THROUGH SAID PONT BEARS SOUTH 01• 471' w WEST; TIENCE WESTERLY ALONG SAID CUIM ALSO D OM CONCENTRIC TO AND 11900 FELT SOUTHER4Y OF THE CENTER LINE OF STATE MOWAY 71 AS SHOWN BY SAID MAP, YtvKw iH A CENTRAL. ANGLE OF 4N• 90' 4r, AN ARC LENQTHN OF "am FELT TO THE I EOIEVING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 16500 FEIRT, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07.32' sr war; M 04M WESTERLY ALONG SAID CURVE THROUGH A CENTRAL AN(VJ OF I&- 3T 1r, AN ARC LEITH OF SI AS FEET; THRICE NORTH 43.6P 51" WEST, 20. FEET; THENCE NORTH 04.46' 11" EAST, 12J4 FEET TO THE TRUE POINT OF BEGINNING. 0 0 OONTAINM U04 SQUTARE FEET OR QM ACRES NM OR LESS. THIS D66Ci'Wl ION ALSO MG SHOWN ON THE ATTACHED EDIT V, AND THEREBY OEM MADE A PART HEREOF; F'FEPARH3 BY ME OR UNDER W SUIPERVISK) k %KM & OOZAD PAOFF.S9iOP1AL CIVIL ENGH FA NQ 261W REGWRATION EXPEE83(31/06 i hereby N above and oripm on T 0 tW0t10WW11:19AM W: J.W. 4CO ft K OOM F. cvwft © EXHIBIT "B - T TEMPORARY CONS'TRUCTK)N EASEMENT PARCEL 14 OF PARCEL YAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 208E PAGES 58 THROUGH 81 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. _1 71' . . 1r . CORNER CUTBACK PARCEL 1 {A-R. 10B7." PARCEL MAP 30180 Lx5D.41 P.M. 208/56-61 PARCEL 14 (1 .063 AiCRES) Liar 00 PARCH. 1.3 carti!}rr under *o penefry of penury, ttlet the s and bnoirp is a true and aortect'c opy of 0 od*181 on deposit wlt* the r rds of the c! of TRACT 20319 T M.S. &A 1UPORARY CONS-'WON E49SWEW 4 l INDICATES RECORD DATA PER PM 200641 SR 79 - rLI It t31 CURVE TAB DELTA 13'37'18' 47.46' LE w/~«w• RADK3 TAf+iC99`if 148.Q0' 13.94' az a'4a'a • 159,71 1e0o.00• 7g.92' 0 8'2045' 178.84' . 181. 89.3V C4 18'9 18' 51.36• 138-00- 25.90' q RIC.HARDS, WATSON & GERSHON 1 A Professional Corporation PAULA GUTIERREZ BAEZA (198653) 2 1 1 Ciiic Center Circle. P.O. Box 1059 Brea, CA 92822-1059 3 p Telephone. (714) 990-0901 4 Facsimile. (714) 990-6230 Attorneys for Plaintiff CITY OF TEMECULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE 9 CITY OF TEMECULA, a municipal Case No. RIC 519307 z IO corporation, a 0 11 HON. GLORIA CONNOR TRASK En Plaintiff, DEPT. 01 12 vs. ACKNOWLEDGMENT OF RECEIPT OF o 13 JUST COMPENSATION OF EMINENT ~n o BORCHARD-TEMECULA, L.P., a California E DOMAIN DEPOSIT Limited Partnership; COUNTY OF 14 RIVERSIDE; AT&T CORP.; VERIZON Status Conference: August 17, 2009 CALIFORNIA INC., EASTERN } 15 MUNICIPAL WATER DISTRICT; DOES I Time: 8:30 a.m. THROUGH 100, inclusive, and ANY AND Dept.: 01 u 16 ALL PERSONS UNKNOWN HAVING OR CLAIMING TO HAVE ANY TITLE OR Complaint Filed: February 17, 2009 17 INTEREST IN OR TO THE PROPERTY ' NS 961-oto-o72 & -073) SOUGHT TO BE CONDEMNED HEREIN, { [ 18 Defendants. [Exempt from Filing Fees Pursuant to Govt. Code 19 §6103] 20 21 22 John Heffernan, Esq., hereby acknowledges on behalf of Defendant Borchard-Temecula, 23 E L.P., a California Limited Partnership, receipt of County of Riverside warrant number for 24 the sum of 5120,100.00 (One Hundred Twenty-Thousand One Hundred Dollars) payable to 25 Bore hard -Temecula, L.P. Pursuant to the Stipulation for Entry of Final Judgment and Final 26 Order of Condemnation and for Withdrawal of Funds on Deposit entered into between the 27 i Plaintiff City of Temecula and Borchard-Temecula, L.P. ("Stipulation for Final Judgment"), said ?R Acknowledgment of Receipt of Just Compensation of Eminent Domain Deposit 11086-0157\1143810v1.doc EXHIBIT "C" warrants constitutes the difference between the total just compensation of $164,092.00 (One z = o r ~ x W V 2 C o~ ~ J © a r Z It yI 4 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 )R Hundred Sixty-four Thousand Ninety-two Dollars) and the $43,992.00 (Forty-three Thousand Nine Hundred Ninety-two Dollars) warrant that the City issued to Borchard-Temecula. Pursuant to said Stipulation for Final Judgment, the total just compensation of 5164,092.40 (One Hundred Sixty-four Thousand Ninety-two Dollars) includes but is not limited to any and all claims ofBorchard-Temecula arising out of or in connection with the City's acquisition of the approximate 2,978 square foot area in fee for public street purposes and all uses necessary or convenient thereto described on Exhibit "A" and depicted on Exhibit "B" to the Stipulation for Final Judgment; the approximate 2,774 square foot slope easement that will revert back to the property owner after the construction of the project in the manner proposed described on Exhibit "A- l" and depicted on Exhibit "B-1" to the Stipulation for Final Judgment; and the approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months from the June 5, 2009 date of apportionment described on Exhibit "A-2" and depicted on Exhibit "B-2" to the Stipulation for Final Judgment. This includes, but is not limited to compensation for these subject property interests, severance damages, cost to cure damages, inverse condemnation, precondemnation damages, de facto taking, loss of goodwill pursuant to Code of Civil Procedure Section 1263.510, damages for violation of civil or constitutional rights costs, litigation expenses, expert witness fees, appraisal costs, attorneys fees, interest, relocation assistance and/or benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.), if applicable, or under Title 1, Division 7, Chapter 1 of the California Government Code (Section 7260 et seq.), improvements pertaining to the realty, fixtures, furniture and equipment, moving expenses, abandonment costs, costs relating to the relocation of utilities from the larger parcel, or any other damages of every 11I -2- Acknowledgment of Receipt of Just Compensation of Eminent Domain Deposit 11086-0157y1143810vl.doc z = O v- r ~ Q z Z b o a Q cn G] < Q W u~ J~t kind and nature suffered or to be suffered by Borchard-Temecula by reason of the City's acquisition of the subject property interests. the Project for which the City is acquiring the subject property interests and this eminent domain proceeding. 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ?R DATE: 2009 DEFENDANT BORCHARD-TEMECULA, L.P., A CALIFORNIA LIMITED PARTNERSHIP By: Borchard-Temecula LLC, a California Limited Liability Company, its sole Manager By: John B. Heffernan, Manager -3- Acknowledgment of Receipt of Just Compensation of Eminent Domain Deposit 11086-0157\1 14381ovI.doc RICHARDS, WATSON & GERSHON A Professional Corporation PAULA GUTIERREZ BAEZA (198653) 1 Civic Center Circle, P.O_ Box 1055 Brea. CA. 92822-1059 Telephone: (714) 990-0901 Facsimile: (714) 990-6230 2 Attorneys for Plaintiff CITY OF TEMECULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE Z 0 S x w ~ z z C) cn n S c~ v rx .v, 9 10 11 12 13 14 15 16 17 18 19 20 21 Complaint Filed: February 17, 2009 [APNs 961-010-072 & -073] [Exempt from Filing Fees Pursuant to Govt. Code §6103] John Heffernan, Esq., hereby acknowledges on behalf of Defendant Borchard-Temecula, L.P., a California Limited Partnership, receipt of City of Temecula warrant number for the sum of $43,992.00 (Forty-three Thousand Nine Hundred Ninety-two Dollars) payable to Borchard-Temecula, L.P. Pursuant to the Stipulation for Entry of Final Judgment and Final Order of Condemnation and for Withdrawal of Funds on Deposit entered into between the 22 23 24 25 26 27 1) R CITY OF TEMECULA, a municipal corporation, Plaintiff, VS. BORCHARD-TEMECULA, L.P., a California Limited Partnership; COUNTY OF RIVERSIDE; AT&T CORP.; VERIZON CALIFORNIA INC.; EASTERN MUNICIPAL WATER DISTRICT; DOES I THROUGH 100, inclusive, and ANY AND ALL PERSONS UNKNOWN HAVING OR CLAIMING TO HAVE ANY TITLE OR INTEREST IN OR TO THE PROPERTY SOUGHT TO BE CONDEMNED HEREIN, Defendants. Case No. RIC 519307 HON. GLORIA CONNOR TRASK DEPT. 01 ACKNOWLEDGMENT OF RECEIPT OF JUST COMPENSATION OF WARRANT FROM THE CITY OF TEMECULA Status Conference: August 17, 2009 Time: 8:30 a.m. Dept.: 01 Acknowledgment of Receipt of Just Compensation of Warrant from the City of Temecula 11086-0157\1143868v1.doc "D1' ESHEIBIT z ~ a cn ~ 0 2 V) c r~ ~ y Q Z u~ cY a V 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 'R Plaintiff City of Temecula and Borchard-Temecula, L.P. ("Stipulation for Final Judgment"), said warrants constitutes the difference between the total just compensation of 5164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars) and the S 120,100.00 (One Hundred Twenty Thousand One Hundred Dollars) principal on deposit with the Court. Pursuant to the Stipulation for Final Judgment, the County Clerk will disburse for the benefit of Borchard-Temecula, L.P. the $120,100.00 principal on deposit by issuing a warrant payable to Borchard-Temecula. Pursuant to said Stipulation for Final Judgment, the total just compensation of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars) includes but is not limited to any and all claims of Borchard-Temecula arising out of or in connection with the City's acquisition of the approximate 2,978 square foot area in fee for public street purposes and all uses necessary or convenient thereto described on Exhibit "A" and depicted on Exhibit "B" to the Stipulation for Final Judgment; the approximate 2,774 square foot slope easement that will revert back to the property owner after the construction of the project in the manner proposed described on Exhibit "A-1" and depicted on Exhibit "B-I" to the Stipulation for Final Judgment; and the approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months from the June 5, 2009 date of apportionment described on Exhibit "A-2" and depicted on Exhibit "B-2" to the Stipulation for Final Judgment. This includes, but is not limited to compensation for these subject property interests, severance damages, cost to cure damages, inverse condemnation, precondemnation damages, de facto taking, loss of goodwill pursuant to Code of Civil Procedure Section 1263.510, damages for violation of civil or constitutional rights costs, litigation expenses, expert witness fees, appraisal costs, attorneys fees, interest, relocation assistance and/or benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et secy.), if applicable, or under Title 1, Division 7, Chapter 1 of the California Government Code (Section 7260 et seq.), improvements pertaining to the realty, fixtures, furniture and equipment, moving expenses, abandonment costs, costs relating to the relocation of utilities from the larger parcel, or any other damages of every kind and nature suffered or to be suffered by Borchard-Temecula by reason of the City's -2- Acknowledgment of Receipt of Just Compensation of Warrant from the City of Temecula 11086-0157\1 143868vl.doe zs O h°_ v ! d M L ~j 4 vi © O Lf) b w a 84 Q ; 1A acquisition of the subject property interests, the Project for which the City is acquiring the subject property interests and this eminent domain proceeding. 1 2 3 4 5 6 7 8 9 10 11 12 1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R DATE: , 2009 DEFENDANT BQRCHARD-TETNIECUL:a, L.P., A CALIFORNIA LIMITED PARTNERSHIP By: Borchard-Temecula.LLC, a California Limited Liability Company. its sole Manager By: John B. Heffernan, Manager -3- Acknowledgment of Receipt of Just Compensation of Warrant from the City of Temecula 11086-0157'11 1 143868vl.doc 4 R.ICHARDS, WATSON & GERSHON A Professional Corporation PAULA GUTIERREZ BAEZA (198653) 1 Civic Center Circle, P.O. Box 1059 Brea, CA 92822-1059 Telephone: (714) 990-0901 Facsimile: (714) 990-6230 Attorneys for Plaintiff CITY OF TEMECULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE ~ z © e= ~ Q o~ ¢a 4 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CITY OF TEMECULA, a municipal corporation, Plaintiff, vs. BORCHARD-TEMECULA, L.P., a California Limited Partnership; COUNTY OF RIVERSIDE; AT&T CORP.; VERIZON CALIFORNIA INC.; EASTERN MUNICIPAL WATER DISTRICT; DOES I THROUGH 100, inclusive, and ANY AND ALL PERSONS UNKNOWN HAVING OR CLAIMING TO HAVE ANY TITLE OR INTEREST IN' OR TO THE PROPERTY SOUGHT TO BE CONDEMNED HEREIN, Case No. RIC 519307 Q 4 u is V 215, N~ 27 '3 R Defendants. HON. GLORIA CONNOR TRASK DEPT. 01 FINAL JUDGMENT IN CONDEMNATION Status Conference Time: 8:30 a.m. Dept.: 01 August 17, 2009 Complaint Filed: February 17, 2009 [APNs 961-010-072 & -073] [Exempt from Filing Fees Pursuant to Govt. Code §6103] Plaintiff City of Temecula filed the Complaint in Eminent Domain herein to acquire by eminent domain for public street purposes and all uses necessary or convenient thereto certain real property interests from the real property, which is a vacant, unimproved lot located at the southwest corner of Pechanga Parkway and Temecula Parkway in Temecula, California, identified as Riverside County Tax Assessor's Parcel Numbers 961-010-072 and 961-010-073 ("larger parcel"). The Complaint described the real property interests the City seeks to acquire from the larger parcel for the Pechanga Parkway Dual Turn Lanes from Temecula Parkway (Project PW06-11) ("Project") as an approximate 2,978 square foot permanent easement for public street purposes and all uses necessary or convenient thereto, an approximate 2,774 square Final Judgment in Condemnation 11086-0157\1142658vl.doc "E" EXfIIBIT E I foot slope easement to support the adjacent public roadway that will revert back to the property 2 owner after the City's construction. of the Project in the manner proposed, and an approximate 3 3,004 square foot temporary construction easement with a term of eighteen (IS) months to 4 facilitate construction of the Project. The City and Borchard-Temecula agreed that, with the Court's approval, the City could 6 acquire in this proceeding the fee interest instead of an easement interest in the approximate 7 21978 square foot area from the larger parcel that the City will use for public street purposes and 8 all uses necessary or convenient thereto. Accordingly, IT IS HEREBY ORDERED, 9 ADJUDGED AND DECREED that the City will acquire in fee the approximate 2,978 square 10 foot area from the larger parcel that the City will use for public street purposes and all uses 11 necessary or convenient thereto. The term "subject property interests" below is used to describe Ln ° 12 collectively the approximate 2,978 square foot area that the City will acquire in fee from the o 13 larger parcel for public street purposes and all uses necessary or convenient thereto, the 0 14 approximate 2,774 square foot slope easement on the larger parcel to support the adjacent public 15 roadway that will revert back to the property owner after the City's construction of the Project in i 16 the manner proposed, and the approximate 3,004 square foot temporary construction easement ~ 17 ar on the larger parcel with a term of eighteen (18) months to facilitate construction of the Project, ..emu :ys 18 which are all described more particularly below. 19 All of the named defendants in this proceeding were served or dismissed. 20 Defendant Eastern Municipal 'W'ater District executed a Disclaimer of Interest herein on 21 March 26, 2009, which was filed on or about April 3, 2009, disclaiming any right, title or interest 22 in or to the subject property interests or to the just compensation to be awarded for the subject 23 property interests. Accordingly, IT IS FURTHER ORDERED, ADJUDGED AND DECREED 24 'I ~ that Defendant Eastern Municipal Water District has no remaining interest in the subject 25 property interests. 26 Defendant County of Riverside Accordingly, IT IS FURTHER 27 ORDERED, ADJUDGED AND DECREED that Defendant County of Riverside 7R -2- 11086-0157\11426584 l.doc Final Judgment in Condemnation Plaintiff and Defendant AT&T Corp. resolved all of the issues between them in this proceeding pursuant to a Stipulation for Entry of Interlocutory Judgment f led with the Court on 4 ' or about AT&T Corp. on Accordingly, IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Interlocutory Judgment as to the Interests of AT&T Corp. is incorporated herein by this reference. Plaintiff and Defendant Verizon California Inc. resolved all of the issues between them in 0 Ln a c LU V c~ a ow cn a o ¢y .Y0 this proceeding pursuant to a Stipulation for Entry of Interlocutory Judgment filed with the Court The Court entered an Interlocutory Judgment as to the Interests of 10 ~ on or about 11 12 13 14 15 The Court entered an Interlocutory Judgment as to the Interests of Verizon California Inc.. Accordingly, IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Interlocutory Judgment as to the Interests of Verizon California Inc. is incorporated herein by this reference. Plaintiff and Defendant Pacific Bell Telephone Company (Doe 1) resolved all of the issues between them in this proceeding pursuant to filed 16 with the Court on or about Accordingly, IT IS FURTHER ORDERED, 17 ADJUDGED AND DECREED that 18 The Court entered the dismissal of Defendants Does 2 through 100, Inclusive and of 19 It Defendants Any and All Persons Unknown Having or Claiming to Have Any Title or Interest in 20 or to the Property Sought to be Condemned Herein on , 2009. 21 Plaintiff and Defendant Borchard-Temecula, L.P., a California Limited Partnership 22 ("Borchard-Temecula") the fee record owner of the larger parcel, agreed to fully resolve all of 23 Defendant Borchard-Temecula's claims arising in connection with or out of the City's ?f 24 acquisition of the subject property interests, the Project for which the City is acquiring the li 25 subject property interests and this eminent domain proceeding pursuant to a Stipulation for Entry 26 of Final Judgment and Final Order of Condemnation and for Withdrawal of Funds on Deposit 27 i Submitted by Plaintiff and Defendant Borchard-Temecula, which was filed with the Court on -3- Final Judgment in Condemnation 11086-0157\1 142658 v l .doc 2009 ("Stipulation for Final Judgment"). Accordingly, IT IF FURTHER ORDERED, ADJUDGED AND DECREED that said Stipulation for Final Judgment is incorporated in this Final Judgment in Condemnation by this reference. On February 19, 2009, the City deposited with the Clerk of the Court pursuant to Code of z O cn w tD w Q a z n 6 7 Civil Procedure Section 1255.010 the sum of $120,100.00 (One Hundred Twenty Thousand One Hundred Dollars) as the probable amount of compensation for the subject property interests. Pursuant to the Order Approving the Stipulation for Final Judgment and Authorizing the Disbursement of Funds on Deposit entered on , 2009, the Court authorized the County Clerk to disburse to Borchard-Temecula the S 120,100.00 principal on deposit. On May 8, 2009, the Court entered an Order for Possession, which was filed by the Court a 0 v~ r Q â–ºi V r4 10 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 _)R on May 18, 2009, authorizing the City to take possession of the subject property interests ten (10) calendar days from the date of service on the named defendants. The named defendants were served by mail on May 21, 2009. Accordingly, IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the effective date of possession is June 5, 2009 ("date of apportionment"). Pursuant to the Stipulation for Final Judgment, the total compensation that the City will pay to or for the benefit of Defendant Borchard-Temecula is the sum of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars), inclusive of statutory interest, attorney's fees and costs. An Acknowledgment of Receipt of Just Compensation of Eminent Domain Deposit executed by John Heffernan on. behalf of Defendant Borchard-Temecula and filed on acknowledged receipt of the principal sum of $120,100.00 on deposit with the Court. An Acknowledgement of Receipt of Just Compensation of Warrant from the City of Temecula executed by John Heffernan on behalf of Defendant Borchard-Temecula and filed on acknowledged receipt of warrant no. from the City of Temecula for the sum of $43,992.00 (Forty-three Thousand Nine Hundred Ninety-two Dollars). Accordingly, IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff has paid the total just compensation of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars) for the -4- Final Judgment in Condemnation 11086-0157U142658v1.doc 1 benefit of Defendant Borchard-Temecula as set forth in the Stipulation for Final Judgment 2 n IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if the existing 3 driveway on the larger parcel is impacted by the construction of the Project in the manner 49 proposed, the City will construct a new similar driveway as part of the Project based on the new i 5 right-of-way line. b IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the City of Temecula 7 will acquire by eminent domain in fee the approximate 2,978 square foot area on the real 8 property identified as Riverside County Assessor's Parcel Numbers 961-010-072 and 961-010- 9 073 described below for a public use, namely for public street purposes and all uses necessary or 10 convenient thereto in connection with the City's Pechanga Parkway Dual Turn Lanes from a 11 Temecula Parkway (Project PW06-1 1). The approximate 2,978 square foot area that the City is ur) 12 ° acquiring in fee from the larger parcel is described more particularly as follows: o b 13 , LEGAL DESCRIPTION FOR DEDICATION OF RIGHT-OF-WAY d 14 A DEDICATION OF RIGHT-OF-WAY OVER AND ACROSS A PORTION OF ~n J 15 ~I PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN n BOOK 208, PAGE 56 THROUGH 61 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE z 16 PARTICULARLY DESCRIBED AS FOLLOWS: 17 BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 18 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF- WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID 19 RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT 20 [ BEARS SOUTH 10° 14'05" WEST; 1 THENCE EASTERLY ALONG SAID CURVE AND SAID RIGHT-OF-WAY 21 THROUGH A CENTRAL ANGLE OF 06° 58'22", AN ARC LENGTH OF 191.19 FEET TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN 22 ON SAID MAP; 23 THENCE SOUTH 54° 18'48" EAST, 31.29 FEET ALONG SAID CORNER CUT BACK TO THE BEGINNING OF A NON-TANGENT CURVE 24 CONCAVE NORTHERLY, HAVING A RADIUS OF 1,588.00 FEET, A 25 RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02° 18' 32" WEST, ! SAID CURVE ALSO BEING CONCENTRIC TO AND 88.00 FEET 26 SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP; 27 THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05" 04'21", AN ARC DISTANCE OF 140.59 FEET TO THE -5- Final Judgment in Condemnation 11086-0157t1142658v L.doc BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY I k HAVING A RADIUS OF 134.00 FEET; 2 THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A 3 CENTRAL ANGLE OF IS" 37' 15", AN ARC LENGTH OF 43.55 FEET; THENCE NORTH 63" 59' 51" WEST, 37.37 FEET TO THE NORTHWEST 4 CORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. CONTAINING 2,975 SQUARE FEET OR 0.07 ACRES MORE OR LESS. GRANTOR HEREBY RELEASES AND RELINQUISHES TO THE GRANTEE ANY AND ALL ABUTTER'S RIGHTS OF ACCESS BETWEEN THE ABOVE DESCRIBED PARCEL OF LAND AND THE GRANTOR'S REMAINING PROPERTY LYING SOUTHERLY THEREOF. EXCEPTING AND RESERVING THERETO THE FOLLOWING DESCRIBED 9 ACCESS OPENING: 10 i€ A 30-FOOT WIDE PUBLIC ACCESS OPENING DESCRIBED AS FOLLOWS: C En . I I BEGINNING AT THE MOST NORTHWESTERLY CORNER OF THE ~ 12 j ABOVE DESCRIBED PARCEL 14; THENCE SOUTH 63" 59' 51" EAST, 17.07 FEET TO THE TRUE POINT OF 0 ° 13 o BEGINNING OF SAID THIRTY FOOT WIDE ACCESS OPENING; ~ Cn a 14 THENCE CONTINUING SOUTH 63" 59'51" EAST, 20.30 FEET TO THE 15 BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY, HAVING o A RADIUS OF 134.00 FEET; = 16 THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ~ANGLE OF 04" 45'08", AN ARC LENGTH OF 11.11 FEET TO THE END OF 17 SAID 30-FOOT 'VIDE PUBLIC ACCESS OPENING. s; M 18 The approximate 2,978 square foot area the City is acquiring in fee herein for public 19 ~f street purposes and all uses necessary or convenient thereto is described in Exhibit "A" and 2 depicted on Exhibit "B" to this Final Judgment in Condemnation. Exhibits "A" and "B" are 21 ~ incorporated herein by this reference. 22 23 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the City of Temecula will acquire by eminent domain the approximate 2,774 square foot slope easement on the larger 24 1 25 parcel to support the adjacent public roadway in connection with the City's Project. The 26 approximate 2,774 square foot slope easement will revert back to the property owner after the 27 City's construction. of the Project in the manner proposed. The approximate 2,774 square foot 7 slope easement is described more particularly as follows: R -6- Final Judgment in Condemnation 11086-015-7..1142658v l .doc LEGAL DESCRIPTION FOR SLOPE EASEMENT A SLOPE EASEMENT OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOW-N BY MAP ON FILE IN BOOK 208, PAGES 56 THROUGH 61 INCLUSIVE OF PARCEL MAPS. RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF- WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 1.00 14'05" WEST; z o L.U z ° 0 v1 a Q a Ln nQ Q x v~ ~ a ;"A 5N~ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 79 THENCE SOUT14 63° 59'51" EAST, 37.37 FEET ALONG SAID RIGHT-OF- WAY TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 134.00 FEET, A RADIAL LIVE THROUGH SAID POINT BEARS SOUTH 26'00'09" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18° 37' 16", AN ARC DISTANCE OF 43.55 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,588.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07° 22' 53" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05° 04'21", AN ARC DISTANCE OF 140.59 FEET, TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02° 18'32" WEST, ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP; THENCE SOUTH 54° 18'44" EAST ALONG SAID CORNER CUT BACK, 21.63 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,600.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01° 39'44" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGEL OF 05° 43'09", AN ARC LENGTH OF 159.71 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 146.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07'22'53" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18° 37' 16", AN ARC LENGTH OF 47.45 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 26° 00'09" WEST; THENCE NORTH 63° 59' 51" WEST, 33.65 FEET; THENCE NORTH 08° 45' 19" EAST, 12.56 FEET TO THE NORTHWEST CORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. -7- Final Judgment in Condemnation 11086-0157A 142658v1.doc CONTAINING 2,774 SQUARE FEET OR 0.06 ACRES MORE OR LESS. 4 The approximate 2,774 square foot slope easement the City is acquiring in this proceeding is described in Exhibit "A-1" and depicted on Exhibit "B-I" to this Final Judgment in Condemnation. This approximate 2,774 square foot slope easement will revert back to the record fee owner after the City constructs the Project in the manner proposed. Exhibits "A-I" and "B-I" are incorporated herein by this reference. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the City of Temecula Z Z C) w vn ~ Q Q u~ ~ z ~v HP 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ?R will acquire by eminent domain the approximate 3,004 square foot temporary construction easement with a tenn of eighteen (18) months from the June 5, 2009 date of apportionment to facilitate construction of the Project. The approximate 3,004 square foot temporary construction easement with a tenn of eighteen (18) months is described as follows: LEGAL DESCRIPTION FOR TEMPORARY CONSTRUCTION EASEMENT A TEMPORARY CONSTRUCTION EASEMENT OVER AND ACROSS A PORTION FO PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 208, PAGES 56 THROUGH 61 INCLUSIVE OF PARCEL ,'MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID ?SLAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF-WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE :NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10° 14' 05" WEST; THENCE SOUTH 08" 45' 19" WEST, 12.56 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 63° 59' 51" EAST, 33.65 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 146.00 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGEL OF 18" 37' 16", AN ARC DISTANCE OF 47.45 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,600.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07" 22'53" WEST; THENCE EASTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC TO AND 100.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 05° 43' 09", AN ARC DISTANCE OF 159.71 FEET, TO A POINT -8- Final Judgment in Condemnation 11086-0157A 142658vt.doc ON THE CORNER CUT BACK AS SHOWN ON SAID MAP, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01'39'44" WEST; THENCE SOUTH 54" 18'44" EAST ALONG SAID CORNER CUT BACK 21.27 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,612.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01" 02'08" WEST; THENCE WESTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC TO AND 112.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 06" 20'45", AN ARC LENGTH OF 178.54 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 158.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07'22'53" WEST; z Z o w Z 2 un ~ d 10 11. 12 13 14 cn 15 4 c~ 16 17 i!V 18 19 20 21 ?1) 23 24 25 26 27 ?~R THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18" 37' 16", AN ARC LENGTH OF 51.35 FEET; THENCE NORTH 63" 59' 51" WEST, 29.92 FEET; THENCE NORTH 08" 45' 19" EAST, 12.56 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 3,004 SQUARE FEET OR 0.069 ACRES MORE OR LESS. The approximate 3,004 square foot temporary construction easement with a terns of eighteen (18) months from the June 5, 2009 date of apportionment that the City is acquiring in this proceeding is described in Exhibit "A-2" and depicted on Exhibit "B-2" to this Final Judgment in Condemnation. The term of the temporary construction easement expires on December 11, 2010. Exhibits "A-2" and "B-2" are incorporated herein by this reference. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the use for which the City is acquiring the subject property interests herein, namely for public street purposes and all uses necessary or convenient thereto, is a public use; that the public interest and necessity require the Project for which the City is acquiring the subject property interests; that the Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury; that the subject property interests are necessary for the Project; and that Plaintiff is entitled to condemn said real property for such use by virtue of the provisions of California Constitution, Article I, Section 19, California Government Code Sections 37350, 37350.5, 37351, 40401 and 40404, and by California Code of Civil Procedure Section 1230.010 11086-01571142658v I .doc -9- Final Judgment in Condemnation et seq. (Eminent Domain Law), including but not limited to, Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.510, 1240.610, 1240.650, and by other provisions of law. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that consistent with Z = C s d U.) w O r a 4 p ~ Q z u~ cx s,~ V Y~ 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ?~R paragraph 27of the Stipulation for Final Judgment, the payment by the City for the benefit of Defendant Borchard-Temecula of the total just compensation of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars), consisting of the S 120,100.00 principal on deposit with the Court and the 543,992.00 warrant from the City described above is the total just compensation for the full and final settlement of any and all of Defendant Borchard-Temecula's claims arising out of or in connection with the City's acquisition of the subject property interests described above and in the attached Exhibits "A", "B", "A-1", "B-1" "A-2" and "B-2", and includes and satisfies any and all other payments, if any that the City may be required by law to pay to Defendant Borchard-Temecula in this eminent domain proceeding. The total just compensation of $164,092.00 (One Hundred Sixty-four Thousand Ninety-two Dollars) includes but is not limited to any and all claims of Borchard-Temecula arising out of or in connection with the City's acquisition of the approximate 2,978 square foot area in fee for public street purposes and all uses necessary or convenient thereto described on Exhibit "A" and depicted on. Exhibit "B" hereto, the approximate 2,774 square foot slope easement that will revert back to the property owner after the construction of the Project in the manner proposed described on Exhibit "A-1" and depicted on Exhibit "B-I" hereto, and the approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months from the June 5, 2009 date of apportionment described on Exhibit "A-2" and depicted on Exhibit "B-2" hereto, including, but not limited to compensation for these subject property interests, severance damages, cost to cure damages, inverse condemnation, precondemnation damages, de facto taking, loss of goodwill pursuant to Code of Civil Procedure Section 1263.510, damages for violation of civil or constitutional rights costs, litigation expenses, expert witness fees, appraisal costs, attorneys fees, interest, relocation assistance and/or benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.), if applicable, or under Title -10- Final Judgment in Condemnation 11086-0157'%1142658v L doc 6 1, Division 7, Chapter 1 of the California Government Code (Section 7260 et seq.), improvements pertaining to the realty, fixtures, furniture and equipment, moving expenses, abandonment costs, costs relating to the relocation of utilities from the larger parcel, or any other damages of every kind and nature suffered or to be suffered by Borchard-Temecula by reason of the City's acquisition of the subject property interests the Project for which the City is acquiring the subject property interests and this eminent domain proceeding. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to the 10 z 11 12 z 13 a " Q 14 o~ <t w z vo Gam' a v sâ–º~ 15 1.6 17 18 19 20 21 22 23 24 25 26 27 7R Stipulation for Final Judgment, said Stipulation for Final Judgnrnent was fully negotiated between the City and Defendant Borchard-Temecula and will be construed as if drafted by all parties to it. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that except as otherwise set forth in the Stipulation for Final Judgment and except for any breach of terms or conditions contained in this Stipulation for Judgment, Defendant Borchard-Temecula waives and forever releases the City, including its successors, assigns, officers, employees, attorneys, agents, representatives and anyone acting on or for the City's behalf, of and from any and all claims, demands, actions or causes of action, liabilities, or claims for further compensation, known or unknown, based upon or arising in connection with the Complaint in Eminent Domain herein, the Project for which the City is acquiring the subject property interests or from the City's acquisition of the subject property interests. The foregoing waiver became effective upon the issuance of the warrant IT IS FURTHER ORDERED, ADJUDGED AND DECREED pursuant to the Stipulation for Final Judgment that Defendant Borchard-Temecula waives its rights, if any, under California Civil Code Section 1542, which provides, "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known to him or her must have materially affected his or her settlement with the debtor." IT IS FURTHER ORDERED ADJUDGED AND DECREED THAT the Defendant Borchard-Temecula's waiver of rights and release of claims will not extend to and is not -11- Final Judgment in Condemnation 11086-0157\ 1142658v l .doc z~ o ~n LLJ o z ° 0 a cn o v~ 4 V Y4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Ii 27 ?R intended to extend to claims related to or alleged' to arise out of the negligence on the part of the City, its agents or contractors, in connection with the physical construction of the Project as planned and designed. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all taxes, current and delinquent, and all penalties and costs on the portion of the subject property interests comprising the approximate 2,978 square foot area the City is acquiring in fee, which is described above and in Exhibit "A" and depicted on Exhibit "B" hereto will be canceled as of the June 5, 2009 date of apportionment pursuant to Revenue and Taxation Code Section 5081 et seq. IT IS SO ORDERED. DATE: , 2009 By: JUDGE Of THE SUPERIOR COURT -12- Final Judgment in Condemnation 11086-0157\1142658vl .doc EXHIBIT "A" LEGAL. DESCRIPTION FOR DEDICATION OF RIGHT-OF-WAY A DEDICATION OF RIGHT-OF-WAY OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO.30180 AS SHOWN BY MAP ON FILE IN BOOK 20& PACES 38 THROUGH 81 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY CALIFORNIA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS. BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP. SAID POINT BEING ON THE SOUTHERLY RIGHT-OF-WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE COWAVE NORTHERLY. HAVING A RADIUS OF 1,371.00 FEET. A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 110114* 03" WEST; THENCE EASTERLY ALONG SAID CURVE AND SAID RIGHT-OF-WAY THROUGH A CENTRAL. ANGLE OF 06' 38' 22-, AN ARC LENGTH OF 191.19 FEET TO THE BEGINNIN13 OF A CORNER CUT BACK AS SHOWN ON SAID MAP; THENCE SOUTH 54' 18' 48- EAST, 31.29 FEET ALON43 SAID CORNER CUT BACK TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY. HAVING A RADIUS OF 1,388.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02' 19' 32- WEST, SAID CURVE ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL. ANGLE OF OV 04' 21-, AN ARC DISTANCE OF 140.59 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 134.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROU43H A CENTRAL ANGLE OF 18• 37' 15% AN ARC LENGTH OF 43.55 FEET, THENCE NORTH 63' S9' 51- WEST, 37.37 FEET TO THE NORTHWESTCORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. CONTAINING 2,978 SQUARE FEET OR 0.07 ACRES MORE OR LESS. GRANTOR. HEREBY RELEASES AND RELINQUISHES TO THE GRANTEE ANY AND ALL ABUTTER'S RIGHTS OF ACCESS BETWEEN THE ABOVE DESCRIBED PARCEL OF LAND ANO THE GRANTOR'S REMAINING PROPERTY LYING SOUTHERLY THEREOF.. EXCEPTING AND RESERVING THERETO THE FOLLOWING DESCRIBED ACCESS OPENING: A 30-FOOT WIDE PUBLIC ACCESS OPENING DESCRIBED AS FOLLOWS. BEGINNING AT THE MOST NORTHWESTERLY CORNER OF THE ABOVE DESCRIBED PARCEL 14; C hereby certify, under the penally of perfury, that the above end foreadna Is a true and correct cow of an Pere 1 of 2 THENCE SOUTH 6V 50' 61' EAST, 17.07 FEET TO THE TRUE POINT OF BEGMMG OF SAID THIRTY FOOT WIN ACCESS OPEN*4 THENCE CONTINUING SOUTH 63' W 610 LAST, 20.30 FEET TO THE BEGINNING OF A TANWM CURVE C ONCXVE NORTHERLY, HAVING A RADIUS OF 134,00 FEET; THENCE EASTERLY ALONG SAID CURVI THROUGH A COMM ANGLE OF 040 46' Or. AN ARC LENGTH OF 1 i.11 FEET TO THE END OF SAW 30-FOOT WIDE PUBLIC ACCESS OPENING. THIS OESCRW'FION ALSO BEING SHOWN ON THE ATTACHED EXHIBIT'S", AND THEREBY BEING MADE A PART HEREOF. PR /BRED AAE OR UNDER MY SUPERVISION: PROFESSIONAL CIVIL ENGINEER NO. 26159 REGISTRATION EXPIRES 3131/06 EV II+IltIM under the penalty of penury, that the pkv to a true end ommd copy of an Pap2of2 EXHIBIT "B" DEDICATION OF RIGHT OF WAY A DEDICATION OF RIGHT-OF-WAY OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 208, PAGES 58 THROUGH 81 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 51;. 9a. Oa ppppr SR 79 flil .z P. d B. IJN71..w X CIr~ . ~ 1 7:00'? I p i .12 [:-gi CORNER CUTBACK PARCEL 14--/ E DETAIL BELOW PARCEL MAP 30180 (4"02'43'26"- P.M. 208/56-61 R•tO67 L-50.4141') PARCEL 14 5 (,o 1.053 ACRES) _ 1.66. cN P.4 TRACT 20319 M.B. 18t/54-58 PARCEL 13 1*1% ~,,eret~yy ~e~rty, ms of Wpm' mat me ew 10" e 'O9»W ZjR Da& NOT 70' SCALE 1 T EXHIBIT "A -1" LE13AL DE. .RIP Min FOR SLOP! EASEMENT A SLOPE EASEMENT OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL YAP H0.30100 AS SHOWN BY NAP ON FILE N BOOK 20% RAGES 14 THROUGH 41 INCLUSIVE OF PARCEL YAPS. RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, OEM MORE PARTICULARLY DESCRIBED AS FOLLOVIS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID YAP, SAID PONT BEING ON THE SOUTHERLY RJ NT-0FWAY LANE OF BTATIR HIGHWAY 78 AS SHOWN BY SAID MAP, SAID RIGHT-OFNAY BEING A CURVE CONCAVE NORTHERLY, HAYING A RADIUS OF IAM.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10.14' W WEST; THIISICE SOUTH 63' W 51' EAST, 97.37 FEET ALONG SAID RIG T-OKWAY TO THE OEWSMNG OF A CURVE CONCAVE NORTHERLY, HAYING A ,RADIUS OF 134.00 FEET, A RADIAL LNE THROUGH SAID POINT BEARS SOUTH 26.00' Or WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1603T 16", AN ARC DISTANCE OF 43.34 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,568.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07' 2r Sr WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04.04" 21". AN ARC DISTANCE OF 140M FEET, TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP A RADIAL LINE THROUGH SAID POW BEARS SOUTH 07'18' 32" WEST, ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID NAP; THom SOUTH 54.3844" EAST ALONG SAS CORNER CUT BACK, 2i.63 Fur TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,600.00 FEET, A RADIAL LINE THROUGH SAID PONT BEARS SOUTH 0L1 • 30' 44" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE Of 05- 47 OIEI", AN ARC LENGTH OF fIW71 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 144.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07' 22' 43" WEST; THENCO Y ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 184 3T 14", AN ARC LENGTH OF 47.14 FEET, A RADIAL LINE THROUGH SAID POSIT BEARS SOUTH 26 .00' 06" WEST; THENCE NORTH 63•;98' 41" WEST, 33.64 FEET; THENCE NORTH oso a 1I1" EAST,12JI FEET TO THE NORTHWEST CORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. CONTAINENO 2,774 SGUARE? FEET OR 046 ACRES MORE OR LESS. Pogo 1 d2 Crrhdpi *V/= 3;x PK "Aw. 0CDBY:K.CCZA0 F. _Sto Lft THIS OESCRIPTION ALSO BEING SHOWN ON THE ATTACHED EXWBIT OV, AND THEREBY BEING MADE A PART HEREOF; PREP Y ME OR CIDER W SUPEMSION: IWM B. COZAD PROFESSIONAL CIVIL ENGINEER NO. 28150 REGISTRATION EXPIRES 313101 r4m= +above a+~d ~reoo~ ~ Pips 2d 2 cmabd oo Wr~rmow MrM EXHIBI 1 "B -1 tl " SLOPE EASEMENT ' YAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 208 PAGES 58 THROUGH 61 INCLUSIVE OF PARCEL YAPS, RECORDS OF hIYERSIOE COUNTY, CALIFORNIA. co s(A -W4r28 R.~ t~67.av' R. 15W.W oqw- L A to CORNER CUTBACK PARCa V PARCEL MAP 30180 P.M. 208/56.81 PARCEL 14 ACRES) 4,r..~'"'~ .r TRACT 20318 M. S. 181/54-58 sc u: r-w INDICATES RECORD DATA PER PM 20MOI i.Pam DRAC IF ON FOR TEMPORARY CONSi llCTION EASEMEW A TEMPORARY CONSTRUCTION EASEMENT OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 30100 AS SHOWN BY MAP ON FILE IN BOOK 905, PAM 54 THROUGH 61 WMUIM OF PARCEL MAPS, RECORDS OF RNERSIDE COUNTY, CALIFORNIA, NANO MORE PAATICULARL.Y DESCIIIIIIIED AS FOLLOWS; COI+1fAENCY4G AT THE MOST NORTHIWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT "OFWAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAND RIGHT-Of-WAY WW A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,871.00 MEET, A RADIAL LINE THROUGH SAID PONT BEARS SOUTH 10' 14' 05" WEST; THOM SOUTH 05.43" 19" WEST, 12.56 FEET TO THE TRUE POW OF BEGINNING; THENCE SOUTH 63"W 91" EAST, 13.65 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 145.00 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 160 37 16", AN ARC DISTANCE OF 47,43 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE: NORTHERLY HAVING A RADIUS OF 1,600.OO FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07.22' 53" WEST; THENCE EASTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC TO AND 100.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 03.47 09", AN ARC DISTANCE OF 159.71 FEET, TO A POINT ON THE CORNER CUT BACK AS SHOWN ON SAID MAP, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01.19' 44" WEST; THENCE SOUTH 54. UP 44" EAST ALONG SAID CORNER CUT BACK, 21.27 FEET TO THE SEGGINNiNG OF A NON TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,512.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01- W 05' WE THENCt;i WESTERLY ALONG SAID CURVE, ALSO SONG CONCENTRIC TO AND 11200 FIMT SO(MIERLrY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 06.90' 43", AN ARC LENGTH OF 175.$4 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 135.00 PEAT, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07.4' ir WEST; THIINCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL. MOLE OF 13' 3T 1ST, AN ARC LBHNGTH OF 3145 FEET; THENCE NORTH 6115V 51" WEST, 29.42 FEET; THENCE NORTH 080 "'19" EAST, 12J6 FEET TO THE TRUE POINT OF BEGINNING. 0 0 COWAINNO 3,W4 SQUARE FEET OR 0.4165 ACRES MORE OR t.ESS. THO OEBCRtPT1i0N ALSO BEN} 94OWN ON THE MARCHED EXHOrr V, AND THEREBY BENO MADE APART HEREOF: PREPARED BY ME OR UNDER MY SLPERVtSK)Pk •s "AM R OOSAD PROFP.' SK N& C VL, "am ENOWEER N0.36159 REGOMATtON EXPM 3131/015 W. JAW. 4dT91h~0~AD r: EXHIBIT'S • Z TEMPORARY CONSTRUCTION EASEMENT PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILL IN BOOK 2081, PAGES 38 THROUGH e1 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. *1% 1 7i' ta' SR T9 CORNER CUT9ACK PARCEL t . (A-D2* 25 R•1487r00' PARCEL MAP 30180 L-5D.411. P.M. 208/58.61 PARCEL 14 r' a (1.063 ACRES) PARM 13 TRACT 20319 T'1` + «e ff:m M.B. 181154-5 S' /J TEMPOR Y CONSTRUCTION EAR ( ) INDICATES RECORD DATA PER PM 30815641 LINE TAB LE 1 If 8 08'45'i W 33-85- F 1.3 21.9 84' 19'44' 29.92' N EMSM W 12.68' 08'4!3'19 • CURVE TAB CURVE O&TA D1 18'37'18' LE TAN(3:tIT 14$.04` :13.94' G2 . '43'09` 7 600.00' 9,9;1' 8'90'43' 5 89.w C4 18'3 18' 51.3 5* 1 00' 28.90' RICHARDS, WATSON & GERSHON A Professional Corporation PAULA GUTIERREZ BAEZA (198653) 1 Civic Center Circle, P.O. Box 1059 Brea, CA 92822-1059 Telephone: (714) 990-0901 Facsimile: (714) 990-6230 CD z~ E w ~7 - Z 52 V) d cn o z uC c~ 2 i:r va 6 -7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ?s Attorneys for Plaintiff CITY OF TEMECULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE CITY OF TEMECULA, a municipal corporation, Plaintiff, Case No. RIC 519307 HON. GLORIA CONNOR TRASK DEPT. 01 vs. BORCHARD-TEMECULA, L.P., a California Limited Partnership; COUNTY OF RIVERSIDE; AT&T CORP.; VERIZON CALIFORNIA INC.; EASTERN MUNICIPAL WATER DISTRICT; DOES I THROUGH 100, inclusive, and ANY AND ALL PERSONS UNKNOWN HAVING OR CLAIMING TO HAVE ANY TITLE OR INTEREST IN OR TO THE PROPERTY SOUGHT TO BE CONDEMNED HEREIN, Defendants. FINAL ORDER OF CONDEMNATION Status Conference: Time: 8:30 a.m. Dept.: 01 August 17, 2009 Complaint Filed: February 17, 2009 [APNs 961-010-072 & -073] [Exempt front Filing Fees Pursuant to Govt. Code §6103] The Court entered the Final Judgment in Condemnation in this eminent domain proceeding. Said Final Judgment in Condemnation provided that Plaintiff City of Temecula has paid the total sum specified in said Final Judgment for the benefit of the record fee owner Defendant Borchard-Temecula, L.P., A California Limited Partnership ("Borchard-Temecula") It appears to the Court that Plaintiff has paid for the benefit of Borchard-Temecula the total sum specified in said Judgment as evidenced by the two following Acknowledgments of Receipt of Just Compensation: (i) an Acknowledgment of Receipt of Just Compensation of Eminent Domain Deposit executed by John Heffernan on behalf of Defendant Borchard- Final Order of Condemnation 11086-015711143509v2.doc ESHIEBTT ,I'V,, Temecula and tiled on acknowledging receipt of the principal sum of S 120,100.00 on deposit with the Court; and (ii) an Acknowledgement of Receipt of Just Compensation of Warrant from the City of Temecula executed by John Heffernan on behalf of Defendant Borchard-Temecula and filed on , acknowledging receipt of warrant no. from the City of Temecula for the sum of 543,992.00 (Forty-three Thousand Nine Hundred Ninety-two Dollars). It further appears to the Court that all Defendants were served with process. NOW, THEREFORE, IT IS HEREBY ORDERED THAT the real property interests z 0 V) C~f W z a V) 4 W V < w s~ u i!V 9 10 11 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 ?R described below (and referred to below as "subject property interests") from the real property that is a vacant, unimproved lot located at the southwest corner of Pechanga Parkway and Temecula Parkway in Temecula, California, identified as Riverside County Tax Assessor's Parcel Numbers 961-010-072 and 961-010-073 ("larger parcel") are condemned and taken for a public use, namely for public street purposes and all uses necessary or convenient thereto in connection with the Pechanga Parkway Dual Turn Lanes from Temecula Parkway (Project PW06-11) ("Project"). The subject property interests consist of an approximate 2,978 square foot area in fee that the City will use for public street purposes and all uses necessary or convenient thereto, an approximate 2,774 square foot slope easement to support the adjacent public roadway that will revert back to the property owner after the City's construction of the Project in the manner proposed, and an approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months to facilitate construction of the Project. IT IS FURTHER ORDERED THAT the approximate 2,978 square foot area in fee from the larger parcel, which is condemned by the City of Temecula for a public use, namely for public street purposes and all uses necessary or convenient thereto, is described more particularly as follows: LEGAL DESCRIPTION FOR DEDICATION OF RIGHT-OF-WAY A DEDICATION OF RIGHT-OF-WAY OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOAATN BY MAP ON FILE IN BOOK 208, PAGE 56 THROUGH 61 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE -2- Final Order of Condemnation 11086-0157\114 3509v2.doc PARTICULARLY DESCRIBED AS .FOLLOWS: z cn w 0 vn y J ~ a Y Q w V a = a ro BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE. SOUTHERLY RIGHT-OF- WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10° 14'05" WEST; THENCE EASTERLY ALONG SAID CURVE AND SAID RIGHT-OF-WAY THROUGH A CENTRAL ANGLE OF 06° 58'22", AN ARC LENGTH OF 191.19 FEET TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP; THENCE SOUTH 54° 18'48" EAST, 31.29 FEET ALONG SAID CORNER CUT BACK TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,588.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02° 18'32" WEST, SAID CURVE ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP; 4 5 6 8 9 10 II THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05° 04'21", AN ARC DISTANCE OF 140.59 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 134.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18° 37' 15", AN ARC LENGTH OF 43.55 FEET; THENCE NORTH 63° 59`51" WEST, 37.37 FEET TO THE NORTHWEST CORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. CONTAINING 2,978 SQUARE FEET OR 0.07 ACRES MORE OR LESS. GRANTOR HEREBY RELEASES AND RELINQUISHES TO THE GRANTEE ANY AND ALL ABUTTER'S RIGHTS OF ACCESS BETWEEN THE ABOVE DESCRIBED PARCEL OF LAND AND THE GRANTOR'S REMAINING PROPERTY LYING SOUTHERLY THEREOF. 12 13 14 15 16 17 18 EXCEPTING AND RESERVING THERETO THE FOLLOWING DESCRIBED ACCESS OPENING: A 30-FOOT WIDE PUBLIC ACCESS OPENING DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF THE ABOVE DESCRIBED PARCEL 14; THENCE SOUTH 63° 59' 51" EAST, 17.07 FEET TO THE TRUE POINT OF BEGINNING OF SAID THIRTY FOOT WIDE ACCESS OPENING; THENCE CONTINUING SOUTH 63° 59' 5 I " EAST, 2030 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 134.00 FEET; 19 20 21 22 23 24 25 26 27 -3- 2R 11086-0157\1143509v2.doc Final Order of Condemnation THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04° 45'08", AN ARC LENGTH OF 11.11 FEET TO THE END OF SAID 30-FOOT WIDE PtJBLIC ACCESS OPENING. The approximate 2,978 square foot area the City is acquiring in fee herein for public 4 6 street purposes and all uses necessary or convenient thereto is described in Exhibit "A" and depicted on Exhibit "B" to this Final Order of Condemnation. Exhibits "A" and "B" are incorporated herein by this reference. IT IS FURTHER ORDERED that the approximate 2,774 square foot slope easement on z o T- V) ck~ W Q Z ° a " Q cn r~ a c~ 4 w = Z 0 u~ i;q. lip, r~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R the larger parcel, which is condemned by the City of Temecula for a public use to support the adjacent public roadway in connection with the Project, is described as follows: LEGAL DESCRIPTION FOR SLOPE EASEMENT A SLOPE EASEMENT OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 301,80 AS SHOWN BY MAP ON FILE IN BOOK 208, PAGES 56 THROUGH 61 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAID POINT BEING ON THE SOUTHERLY RIGHT-OF- WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10° 14'05" WEST; THENCE SOUTH 63° 59' 51" EAST, 37.37 FEET ALONG SAID RIGHT-OF- WAY TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 134.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 26'00'09" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18" 37' 16", AN ARC DISTANCE OF 43.55 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,588.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07'22'53" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05" 04'21", AN ARC DISTANCE OF 140.59 FEET, TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02° 18'32" WEST, ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP; THENCE SOUTH 54018'44" EAST ALONG SAID CORNER CUT BACK, 21.63 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,600.00 FEET, A -4- Final Order of Condemnation 11086-0157`,11 43509v 2.doc RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01 ° 39'44" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGEL OF 05° 43'09", AN ARC LENGTH OF 159.71 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 146.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07°22 53" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18° 37' 16", AN ARC LENGTH OF 47.45 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 26° 00'09" WEST; THENCE ?NORTH 630 59' 51" NEST, 33.65 FEET; THENCE NORTH 08° 45' 19" EAST, 12.56 FEET TO THE NORTHWEST CORNER OF PARCEL. 1.4 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF BEGINNING. 10 Z Z T- a 11 w 12 z 0 V) 0 rV z ry, ~1-4 V •Y~ 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 ?e CONTAINING 2,774 SQUARE FEET OR 0.06 ACRES MORE OR LESS The approximate 2,774 square foot slope easement the City is acquiring in this proceeding is described in Exhibit "A-I" and depicted on Exhibit "B-l." to this Final Order of Condemnation. This approximate 2,774 square foot slope easement will revert back to the record fee owner after the City constructs the Project in the manner proposed. Exhibits "A-I" and "B-1" are incorporated herein by this reference. IT IS FURTHER ORDERED that the approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months from the June 5, 2009 date of apportionment, which is condemned by the City of Temecula for a public use, namely to facilitate construction of the Project, is described as follows: LEGAL DESCRIPTION FOR TEMPORARY CONSTRUCTION EASEMENT A TEMPORARY CONSTRUCTION EASEMENT OVER AND ACROSS A PORTION FO PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE INT BOOK 208, PAGES 56 THROUGH 61 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST NORTHWESTERLY CORNIER OF PARCEL 14 OF SAID MAP, SAID POINNT BEING ON THE SOUTHERLY RIGHT-OF-WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10" 14'05" WEST; THENCE SOUTH 08° 45' 19" WEST, 12.56 FEET TO THE TRUE POINT OF -5- Final Order of Condemnation 11086-0157\1143509v2.doc BEGINNING; THENCE SOUTH 63" 59'51" EAST. 33.65 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 146.00 FEET: THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGEL OF 18" 37' 16". AN ARC DISTANCE OF 47.45 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,600.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07" 22'53" WEST; 9 10 z = ~ a 11 cn 12 z 13 Q a 14 d U-) 15 Q < 16 V a cx a 17 v pro 18 19 20 21 22 23 24 25 26 27 ?R THENCE EASTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC TO AND 100.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 05" 43'09", AN ARC DISTANCE OF 159.71 FEET, TO A POINT ON THE CORNER CUT BACK AS SHOWN ON SAID MAP, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01'39'44" WEST; THENCE SOUTH 54018'44" EAST ALONG SAID CORNER CUT BACK 21.27 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,612.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01" 02'08" WEST; THENCE WESTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC TO AND 112.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 06" 20'45'-, AN ARC LENGTH OF 178.54 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 158.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07'22'53" WEST; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18" 37' 16", AN ARC LENGTH OF 51.35 FEET; THENCE NORTH 63" 59'51" WEST, 29.92 FEET; THENCE NORTH 08" 45' 19" EAST, 12.56 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 3,004 SQUARE FEET OR 0.069 ACRES MORE OR LESS. The approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months from the June 5, 2009 date of apportionment that the City is acquiring in this proceeding is described in. Exhibit "A-2" and depicted on Exhibit "B-2" to this Final Order of Condemnation. The term of the temporary construction easement expires on December 11, 2010. Exhibits "A-2" and "B-2" are incorporated herein by this reference. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that on recording a certified copy of this Final Order of Condemnation with the County Recorder of the County of -6- Final Order of Condemnation 11086-0157`.1143509v1doc Z = o~ z ~ z µ V) . c° V r rV n T- w a v~ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ?R Riverside, State of California, title to the portion of the subject property interests comprising the 2,978 square foot area the City of Temecula is acquiring in fee herein for public street purposes and all uses necessary or convenient thereto and described above and in Exhibit "A" and depicted on Exhibit "B" to this Final Order of Condemnation, will vest in the City of Temecula, its successors and assigns. Plaintiff had a right to take possession of the subject property interests on June 5, 2009 (date of apportionment) pursuant to an Order for Possession entered by the Court on May 8, 2009 and filed by the Court on May 18, 2009. IT IS FARTHER ORDERED, ADJUDGED AND DECREED that all taxes, current and delinquent and all penalties and costs on the portion of the subject property interests comprising the approximate 2,978 square foot area the City is acquiring in fee herein and described above and in Exhibit "A" and depicted on Exhibit "B" to this Final Order of Condemnation, will be canceled as of the June 5, 2009 date of apportionment. The Clerk is ordered to enter this Final Order of Condemnation forthwith. IT IS SO ORDERED. DATE: , 2009 By: JUDGE OF THE SUPERIOR COURT- -7- Final Order of Condemnation 11086-0157`.114 3,509v1doc EXHIBIT "A" LEGAL DESCRIPTION FOR DEDICATION OF RIGHT-0F-WAY A DEDICATION OF RIGHT-OF--WAY OVER AND ACROSS A PORTION OF PARCEL. 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 249, PAGES 56 THROUGH 61 INCLUSIVE OF PARCEL. MAPS, RECORDS OF RIVERSIDE COUNTY. CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP. SAID POINT BEING ON THE SOUTHERLY RIGHT-0F-WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHT-OF-WAY BEING A CURVE CONr,AVE NORTHERLY, HAVING A RADIUS OF 1,571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 14' 14' 0S" WEST; THENCE EASTERLY ALONG SAID CURVE AND SAID RIGHT-0F-WAY THROUGH A CENTRAL ANGLE OF 06.58' 22% AN ARC LENGTH OF 191.19 FEET TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP; THENCE SOUTH 54' 18'48" EAST, 31.29 FEET ALONG SAID CORNER CUT BACK TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 1,588.00 FEET. A RADIAL LINE THROUGH SAID POINT BEARS SOUTH Me 19' 32' WEST, SAID CURVE ALSO BEING CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 050 04' 21% AN ARC DISTANCE OF 140.58 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 134.00 FEET, THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18' 37' 15', AN ARC LENGTH OF 43.55 FEET; THENCE NORTH 63' SW 51" WEST, 37,37 FEET TO THE NORTHWESTCORNER OF PARCEL 14 OF SAID MAP, SAID POINT ALSO BEING THE POINT OF 0901NNING. CONTAINING 2,978 SQUARE FEET OR 4.07 ACRES MORE OR LES& GRANTOR: HEREBY RELEASES AND RELINQUISHES TO THE GRANTEE ANY AND ALL ABUTTER'S RIGHTS OF ACCESS BETWEEN THE ABOVE DESCRIBED PARCEL OF LAND AND THE GRANTOR'S REMAINING PROPERTY LYING SOUTHERLY THEREOF.. EXCEPTING AND RESERVING THERETO THE FOLLOWING DESCRIBED ACCESS OPENING: A 30-FOOT WIDE PUBLIC ACCESS OPENING DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF THE ABOVE DESCRIBED PARCEL 14; i hereby serwy, under the penalty of perjury, VW.dw Page 1 of 2 rk] THENCE SOUTH Or 5S' 51' EAST, 17.07 FEET TO THE TRUE POINT OF BEG"04 OF SAID THIRTY FOOT WIDE ACCESS OPENING; THENCE CONTINt1MG SOUTH 6V W 51• EAST, 20.30 FEET TO THE BEG00010 OF A TANMIT CURVE CONCAVE NORTHERLY. HAVING A RADIUS OF 13440 FEET: THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04.4W Or, AN ARC LENGTH OF 11.11 FEET TO THE END OF SAID 304WT WIDE PUBLIC ACCESS OPENNO. THIS DESCRIPTION ALSO BEING SHOWN ON THE ATTACHED EXHIBIT'S'. AND THEREBY BEING MADE A PART HEREOF: PR ARID ME OR UNDER MY SUPERVISION: 6: Z KEVIN B. ZAD L ro ~ 4PROFESSIONAL CIVIL ENGINEER NO.25159 REGISTRATION EXPIRES 3131M Pays 2 CI 2 fi. DEDICATION OF RIGHT OF WAY A DEDICATION OF R*W.OF-WAY OVER AND AZROSS A PORTION OF PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP ON FILE IN BOOK 209, PAGES 58 THROUG4 81 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. •za',Lrrw SR 79 cR~ P.O B.~S LNEPAR t 71 ~f C? 17.Op, I .4 CORNER CUTBACK PARCEL 14--04 E OETAIL BELOW (A-02-42-25, PARCEL MAP 30180 P.M. 208/56-61 R•1067.OW L-50.41) PARCEL 14 P. TRACT 20319 M.B. 181/54-58 PARCEL 13 ~+C}y, under the penalty of peony that the adakW nn n9 we tree and wftW COW of an IG& NOT TO SCALE jw J EXHIBIT "A -1" 1E3GAI DESCRIPTION FOR SLOPE EAS84ENT A SLOPSI MASEMIENfT OVER AND ACROSS A PORTION OF PARCEL 14 OF PARCEL MAP NOR 30180 AS SHOWN BY MAP ON FILE IN BOOK 20% PAGES 56 THROUGH 41 INCLUSIVE OF PARCEL MAPS. RECORDS OF RIVERSIDE COUNHY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOW8: SEONNO AT THE MOST NORTHWESTERLY CORNER OF PARCEL 14 OF SAID MAP, SAD POINT 800 ON THE SOUTHERLY RIGHT•OF WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIGHYOF-WAY BEANO A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF iA571.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 10.14' 05" WEST; THOICE SOUTH 43• W 51" EAST, 3727 FEET ALONG SAID RIGHT-OF-WAY TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 134= FEET, A RADIAL LINE THROUGH SAID POINT SEARS SOUTH 26' 00' Or WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OIL 16.37 i6", AN ARC DISTANCE OF 43.55 FEET TO THE 89090" OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF t,588.tII FEET, ARADIAL LINE THROUGH SAID PONT BEARS SOUTH 07.22' 53" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05.04' 21-, AN ARC DISTANCE OF 140.54 FEET, TO THE BEGINNING OF A CORNER CUT BACK AS SHOWN ON SAID MAP A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 02.1 S 32" WEST, ALSO 110110 CONCENTRIC TO AND 88.00 FEET SOUTHERLY OF THE COMM LINE OF STATE NOWAY 78 AS SHOWN BY SAID MAP; THENCE SOUTH $41 19"W EAST ALONG SAID CORNER CUT BACK, 21;43 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVNNG A RADIUS OF 1,400.00 FEET, A RADIAL LINE THROUGH SAID POW BEARS SOUTH 0.1 • 3W 44' WEST; HENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05- or or, AN ARC LENGTH OF I SLTi FEET TO THE BEGINNNO OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 146.00 FEEL, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 078 22' Sr WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL. ANGLE OF 180 3r 14", AN ARC LENGTH! OF 47AS FEET, A RADIAL LINE THROUGH SAID POINT 89AR8 SOUTH126.00' 09" WEST; THENCE NORTH 63.5x' 51" WEST, 33.65 FEET; THENCE NORTH 0$• 45' Ir EAST,12A FEETTO THE NORTHWEST CORNER OF PARCEL 14 OF SAID MAP, SAID PONT ALSO BEING THE POINT OF BEGINNING. CONTAINING 2,774 SQUARE FEET OR 046 ACRES MORE OR LESS. PWO 19(2 c"madon*2& v3d2ru sm aw. CK'06Y-KC0ZAD f. 0kpt W 0 IrM DESCM"ON ALSO BEWO WOWN ON THE ATTACHED MCHBIT `B', AND THEREBY BEING MADE A PART HEREOF: Pipe 2 of 2 Q*Abd = DOT 3MPM W. ASAV. CKV Sr K. COW °:~o „Sicpaea A EXHIBIT "B -1" SLOPE EASEMENT 90 AS SHOWN BY YAP ON FILE IN BOOK 3Q8 PA13ES 3 61 INCLUSIVE OF PARCEL YAPS, RECORDS OF ~IDE COUNTY, CAL~iRNI. 00 ~(A -W4r25 R.1067.oW ~t'~ X0.417 R. tsoaoo • CORNER CUTBACK PARCa V~1. PARCEL MAP 30180 P.M. 208/56.61 PARCEL 14 (1.053 ACRES) TRACT 20319 M.0. 181/54-50 a~ SCAM: rwW INDICATES RECORD DATA PER PM 2!5W61 tA% EXHIBIT *A - 3" LEGAL. DEBCFW T[ON FOR TEMPORARY COt~TRUCf10N EASIAENT A TRI04MM CONSTRUCTION SASEMLNT OVER AND ACROSS A PORTION OF PARS 14 OF PARCEL MAP NO. 30100 AS SHOWN BY MAP ON FILE IN BOOK 21'!E„ PAGES W THROUGH 61 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUMTY, CALIFORNIIA, OEM MORE PARTICULARLY DESCRIBED AS FOLLOWS: Ct>MYYNCINQ AT THE MOST NORTti1NE8M LY CORNEA OF PARCEL 14 OF SAID MAP, SAID POIN I' BEING ON THE SOUTHERLY RIGWT OI-WAY LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, SAID RIOW-ONWAY SEEM A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OIL 1„871.00 FEET, A RADIAL LM THROUGH SAID POKr BEARS SOUTH 101114'05" WEST; THENCE SOUTH 01• 45' 1D" WEST, 13.35 PENT TO THE TRUE PONT OF BBGNNNG; THOM SOUTH 03.55' 51" EAST, 333.65 FEET TO THE BEGINNING OF A TAWHW CURVE CONCAVE NORTHEIG.Y, HAVING A RADIUS OF 14e.00 PUT; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL JINGLE OF 18' 3T 1d", AN ARC DISTANCE OF 47AS FEET TO THII BEGINNING OF A COMPOUND CURVE CONCAVE NORTHIMY HAVING A RADIUS OF 1.040.00 FEET, A RADIAL LIME THROUGH SAID PONT BEARS SOUTH 07.3r 53' WEST; THENCE EASTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC TO AND 100.00 FEET SOUTHERLY OF THE CENTER LINE OF STATE HIGHWAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 05' 43' W, AN ARC DISTANCE OF 15&71 PEST, TO A PONT ON THE CORNIER CUT BACK AS SHOWN ON SAID MAP, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 01.3!1" 44" WEST; THENCE SOUTH 34.15. 4-r EAST ALONG SAID CORDER CUT BACK, 21.37 FEET TO THE KGI[NINIINEI OF A NOWTANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1,01200 FEB'T, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 010 03" Qe' WE$Ti 'THENCE WESTERLY ALONG SAID CURVE, ALSO BEING CONCENTRIC TO AND 112AD RMT SOUTHERLY OF THE CENTER LINE OF STATE HIGNVAY 79 AS SHOWN BY SAID MAP, THROUGH A CENTRAL ANGLE OF 00.30` 45", AN ARC LENGTH OF 171 TO THE IIEGRININ 1 OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 130,00 "AT, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 07.2r sr WEST; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1$0 3? 1S', AN ARC LENGTH OF 5145 FEET; THENCE NORTH SS' 5W 51" WEST, nM FEET; THENCE NORTH 08' 45'19" EAST, 13,56 FEET TO THE TRUE PONT OF BEGINNING, (9 0 CONTAINNG 3,044 SQUARE FEET OR 0.096 AOM MORE OR LESS. THIS DE9CFW1 ION AL80 86NO SHOWN ONTrE ATTAR EM W Ir, AND THEREBY BEWO MADE A PART HEREOF: PFEPARE3 BY ME OR UNDER MY SUPEaYtSM _Iw~~ M" 614.- N a COZAD PF40FESSIONAL CM. fta ENGINEER NO.261b6REG6MT10N soal IH< EXPIRES341A9 . EXHIBIT "B - 2" TEMKWMY CONSTRUCTION EASEMENT PARCEL 14 OF PARCEL MAP NO. 30180 AS SHOWN BY MAP~ONf FILE IN BOOK 208, PAGES 58 THROUGH 81 INCLUSIVE OF PARCEL YAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, 11% 1' 710 M.B. INDICATES RECORD DATA PER PM 208 SUI LINE TABLE Ali, 03'4.5'19' W F .54• ta•44- RICH ARDS, WATSON & GERSHON ELF Professional Corporation PAULA GUTIERREZ BAEZ A ( I98653) I Civic Center Circle. P.O. Box 1059 Brea. CA 92822-1059 Telephone: (714) 990-0901 Facsimile: (114)'990-6230 4 Attorneys for Plaintiff CITY OF TEMECULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE Z o~ W o N o" a L ~ a ~ Y 4 w uo ~ Q 10 CITY OF TEMECULA, a municipal corporation. Case No. RIC 519307 ;10 69-01 Plaintiff, Vs. BORCHARD-TEMECULA, L.P., a California Limited Partnership; COUNTY OF RIVERSIDE; AT&T CORP.; VERIZON CALIFORNIA INC.; EASTERN MUNICIPAL WATER DISTRICT; DOES I THROUGH 100. inclusive, and ANY AND ALL PERSONS UNKNOWN HAVING OR CLAIMING TO HAVE ANY TITLE OR INTEREST IN OR TO THE PROPERTY SOUGHT TO BE CONDEMNED HEREIN. Defendants. I-ION. GLORIA CONNOR TRASK DEPT. 01 STIPULATION FOR ENTRY OF INTERLOCUTORY JUDGMENT SUBMITTED BY PLAINTIFF CITY OF TEMECULA AND DEFENDANT AT&T CORP. [(PROPOSED) INTERLOCUTORY JUDGMENT AS TO INTERESTS OF AT&T CORP. FILED CONCURRENTLY HEREWITH] Status Conference: August 17, 2009 Time: 8:30 a.m. Dept.: 01 Complaint Filed: February 17, 2009 [APNs 961-010-072 & -0731 [Exempt from Filing Fees Pursuant to Govt. Code §61031 PLAINTIFF CITY OF TEMECULA AND DEFENDANT AT&T CORP. HEREBY 12 13 14 15 16 17 18 19 20 21 22 23 24 STIPULATE AND AGREE AS FOLLOWS: The City filed the Complaint in Eminent Domain herein to acquire by eminent domain. for public street purposes and all uses necessary or convenient thereto certain real property interests from the real property, which is a vacant.. unimproved lot located at the 25 26 27 ?9 Stipulation f~~r Entry of Interlocutory Judgment Submitted by Plaintiff and AT&T Corp. 11086-0157. ..1 140899v ].doe z C~ x W CD z a a Q b o c~ ¢ w u~ ~ Q ~R sr~ 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ?R southwest corner of Pechanga Parkway and Temecula Parkway in Temecula. California, identified as Riverside County Tax Assessor's Parcel Numbers 961-010-072 and 961-010-073 (`larger parcel"). The real property interests the City- seeks to acquire from the larger parcel for the Pechanga Parkway Dual Turn Lanes from Temecula Parkway (Project PW06-11) ("project") consist of an approximate 2.978 square foot permanent easement for public street purposes and all uses necessary or convenient thereto., an approximate 2,774 square foot slope easement to support the adjacent public roadway that will revert back to the property owner after the City's construction of the project in the manner proposed; and an approximate 3.004 square foot temporary construction easement with a term of eighteen (18) months to facilitate construction of the project. These real property interests are described more particularly in the Complaint in Eminent Domain herein and are referred to below as "subject property interests". 2. The City has informed Defendant AT&T Corp. ("AT&T") that Borchard- Temecula, the record fee owner of the larger parcel, has requested that the City acquire in fee the approximate 2,978 square foot area that it will use for public street purposes and all uses necessary or convenient thereto. The Complaint in Eminent Domain herein described the approximate 2,978 square foot area as a permanent casement. The parties understand that the Court would have to approve the change from a permanent easement to a fee acquisition of the approximate 21,978 square foot area. The term "subject property interests" below is used to describe collectively the approximate 2,978 square foot area that the City will use for permanent street purposes (whether this 2,978 square foot area is acquired in fee or as a permanent easement), the approximate 2,774 square foot slope easement to support the adjacent public roadway that will revert back to the property owner after the City's construction of the project in the manner proposed; and the approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months to facilitate construction of the project. Defendant AT&T Corp. ("AT&T") claims an interest in the subject property interests pursuant to an encroachment permit issued by the City on or about August 6, 1990 and in accordance with AT&T's right of franchise pursuant to the California Public Utilities Code to Stipulation i-or Entry of Interlocutory Judginent Submitted by Plaintiff and AT&T Corp. 11 086-0157,1140899v I.doc z v~ o w c~ z ° o " a cn na s va LLB s, 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ~R provide telecommunication facility services. AT&T placed certain facilities, including a fiber optic line. in the portion of the larger parcel that was formerly a public right of way. AT&T was named as a defendant in this proceeding because AT&T's manhole is located in the area of the subject property interests the City seeks to acquire in this proceeding. The project will require the relocation of the subjJect manhole. 4. The City and AT&T have agreed to resolve all issues between them in this proceeding pursuant to this Stipulation for Entry of Interlocutory Judgment ("Stipulation"). 5. AT&T agrees to be bound by the final Judgment in Condemnation in this matter as long as said Judgment incorporates the terms of this Stipulation and is not in contravention of this Stipulation. 6. The City and AT&T agree that both parties will continue to jointly use the subject property interests in the area of AT&T's manhole pursuant to Code of Civil Procedure Sections 1240.510 and 1240.530 et seq. pursuant to the terms and conditions of this Stipulation. 7. The City and AT&T agree that there will be no unreasonable interference with each party's free access to their own facilities. 8. AT&T acknowledges that the City's project is for a public use, namely public street purposes and all uses necessary or convenient thereto. Accordingly, AT&T agrees that it will relocate at its sole cost and expense AT&T's manhole located in the area of the subject property interests so that the City can construct its project. This relocation work may include, but is not limited to, the following: a. The excavation around the AT&T's manhole and sliding of the manhole approximately five (5) feet southerly from its existing location; b. The relocation of approximately fifteen (15) feet of concrete encased conduit and fiber optic cable; and c. The relocation of the marker pole. AT&T acknowledges that the above relocation work is an estimate and that the actual work to h Stipulation for f;nriry of Interlocutory Judgment Submitted by Plaintiff and AT&T Corp. 11086-015711 140899N L. Oc relocate the manhole to the area shown on the City's street improvement plans may be greater than the distances shown above. 9. The City agrees to provide AT&T with at least fifteen (15) days written notice ~ o a LiS c~ Q z a w x~ V ~Y %yt 10 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 1) R prior to the date on which the City expects to commence construction in the area of the subject property interests that would require the relocation of AT&T's manhole. The City agrees that it will use its best efforts to coordinate the construction of the project in the area of the manhole with AT&T's engineer, Glenn Sels, P.E. AT&T agrees that it will relocate the manhole as expeditiously as possible, but no later than ten (10) days from the date it receives notice that the City expects to commence construction in the area of the manhole. 10. During any construction. reconstruction, repair, or excavation by the City or its agents upon the subject property interests, the City will be responsible for protecting AT&T's existing facilities only to the extent required by law. 11. Each party to this Stipulation agrees to bear its own attorney's fees and costs incurred in this matter. 12. Except as expressly provided in this Stipulation, AT&T agrees that it is entitled to no further compensation to be awarded in this proceeding, and makes no claim on any deposit for the benefit of the property owner or any judgment awarding damages to defendants. 13. The Court may enter the Final Judgment in Condemnation in this proceeding without further notice to AT&T. No further notice need be given to AT&T of any hearing on this matter. The City, however, agrees to provide AT&T with a copy of the Final Judgment in Condemnation and Final Order of Condemnation in this proceeding. 14. The parties agree that this Stipulation for Entry of Interlocutory Judgment may be executed in counterparts. each of which will be deemed an original instrument, and when taken together will constitute the Stipulation for Entry of Interlocutory Judgment. 111 -4- Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff and AT&T Corp. 1 1086-0157' 1 140899v I .doc 1 3 4 S 6 8 c~ 10 z O ~ l1 ~ a ~ d w ° 12 z ° N 13 a 14 V) 15 Q 16 z 17~ J 18 19 20 i 21 44 22 43 24 25 26 ?r ~R IT IS SO STIPU'LA TED. DATE: 001) attest: By: SuSUD VV-j taes. m W', Citel perk Approved as to form. DATE: 2009 RICHARDS, WATSO & GERSHON A Professional Corporation PAULA GUTIERREZ BAEZA By:- Paula Gutierrez Baeza Attorneys for Plaintiff CITE` OF TEMECULA DATE:: >c,t . 2009 PLAIN T I F CITY OF TEMECULA, a mumCipal corlaoration B v- _ Marvarin Edwards, Mayor DEFENDANT AT&T CORP. By: Title: Cif Az""__ i Title:. Supulat-on for Entry of Interlocutory Judgment Submitted by Piainuff-and AT&T Corp. 11086-0157 1140899v1.doc z~ C) V c~ nU V V C z ° v~ LL a d N a o d I ¢w zQ ~ o Cie Q ar ro 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ?8 RICHARDS, WATSON & GERSHON A Professional Corporation PAULA GUTIERRI.Z BAEZA (198653) 1 Civic Center Circle. P.O. Box 1059 Brea, CA 92822-1059 Telephone: (714) 990-0901 Facsimile: (114)'990-6230 Attorneys for Plaintiff CITY OF TEMECULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE CITY OF 'T`EMECULA, a municipal corporation. Plaintiff, vs. BORCHARD-TEMECULA, L.P., a California Limited Partnership; COUNTY OF RIVERSIDE; AT&T CORP.; VERIZON CALIFORNIA INC.; EASTERN MUNICIPAL WATER DISTRICT; DOES 1 THROUGH 100, inclusive, and ANY AND ALL PERSONS UNKNOWN HAVING OR CLAIMING TO HAVE ANY "TITLE OR INTEREST IN OR TO THE PROPERTY SOUGHT TO BE CONDEMNED HEREIN, Defendants. Case No. RIC 519307 HON. GLORIA CONNOR TRASK DEPT. 01 STIPULATION FOR ENTRY OF INTERLOCUTORY JUDGMENT SUBMITTED BY PLAINTIFF CITY OF TEMECULA AND DEFENDANT VERIZON CALIFORNIA INC. ((PROPOSED) INTERLOCUTORY JUDGMENT AS TO INTERESTS OF VERIZON CALIFORNIA INC. FILED CONCURRENTLY HEREWITH] Status Conference: Time: 8:30 a.m. Dept.: 0l August 17, 2009 Complaint Filed: February 17, 2009 [APNs 961-010-072 & -073] [Exempt from Filing Fees Pursuant to Govt. Code §61031 PLAINTIFF CITY OF TEMECULA AND DEFENDANT VERIZON CALIFORNIA INC. HEREBY STIPULATE AND AGREE AS FOLLOWS: The City filed the Complaint in Eminent Domain herein to acquire by eminent domain for public street purposes and all uses necessary or convenient thereto certain real property interests from the real property, which is a vacant, unimproved lot located at the Stipulation for Entry ol'Interlocutory Judgment Submitted by Plaintiff and Verizon California 11086-0157'.1 126789v2.doc z 0 UI) LW CD z 0 0 v cn J u G N ¢w za v~ ,-r:III* 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 southwest corner of Pechanga Parkway and Temecula Parkway in Temecula. California, identified as Riverside County Tax Assessor's Parcel Numbers 961-010-072 and 961-010-073 ("larger parcel"). The Complaint in Eminent Domain described the real property interests the City seeks to acquire from the larger parcel for the Pechanga Parkway Dual Turn Lanes from Temecula Parkway (Project PW06-11) ("project") as an approximate 2.978 square foot permanent easement for public street purposes and all uses necessary or convenient thereto; an approximate 2,774 square foot slope easement to support the adjacent public roadway that will revert back to the property owner after the City's construction of the project in the manner proposed; and an approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months to facilitate construction of the project. The City has informed Verizon California Inc. ("Verizon") that Borchard- Temecula, the record fee owner of the larger parcel, has requested that the City acquire in fee the approximate 2,978 square foot area that it will use for public street purposes and all uses necessary or convenient thereto. The Complaint in Eminent Domain herein described the approximate 2,978 square foot area as a permanent easement. The parties understand that the Court would have to approve the change from a permanent easement to a fee acquisition of the approximate 2.978 square foot area. The term "subject property interests" below is used to describe collectively the approximate 2978 square foot area that the City will use for permanent street purposes (whether this 2,978 square foot area is acquired in fee or as a permanent easement); approximate 2,774 square foot slope easement to support the adjacent public roadway that will revert back to the property owner after the City's construction of the project in the manner proposed; and the approximate 3,004 square foot temporary construction easement with a term of eighteen (18) months to facilitate construction of the project are described more particularly in the Complaint in Eminent Domain. Verizon was named as a Defendant in this proceeding because the litigation guarantee obtained by the City identified an easement in favor of Verizon recorded against the larger parcel on December 4. 2004 as Document No. 2004-1028948 of Official Records of the County of Riverside. The Grant of Easement in favor of Verizon recorded on February 24, 2006 Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff and Verizon California 11086-0157,11 126789%2.doc I as Document No. 2006-0 1 3 7620 of Official Records of the County of Riverside was recorded to 2 correct the legal description and replaced Document No. 2004-1028948. Verizon claims an 3 interest in the subject property interests in the nature of easement rights and appurtenances, 4 including but not limited to the following grant of private easement from Borchard-Temecula. 5 L.P., a California limited partnership (F/K/af Borchard-Temecula LLC. fll/a Borchard-La Verne, 6 p LLC) to Verizon California Inc., recorded on February 24, 2006, as Document No. 2006- 7 0137620, in the Riverside County Recorder's Office, and in accordance with Verizon's right of 8 franchise pursuant to the California Public Utilities Code to provide telecommunication facility 9 services and public utilities purposes. i 10 4. The City and Verizon have agreed to resolve all issues between them in this 11 proceeding pursuant to this Stipulation for Entry of Interlocutory Judgment ("Stipulation"). x 12 5. Verizon agrees to be bound by the Final Judgment in Condemnation in this matter w ~ 0 13 as long as said Judgment incorporates the terms of this Stipulation and is not in contravention of © " a 14 this Stipulation. Verizon has authorized its counsel to execute this Stipulation on behalf of 15 i Verizon. a Q Q w 16 6. Any Judgment in this proceeding will not terminate, vacate, impair, modify or ~ a 17 alter the existing validity and priority of Verizon's telecommunications facility easement and/or ~ Q r 18 franchise right, including under Public Utilities Code Section 7901 in and on the subject property 19 interests. 20 7. The City and Verizon agree that both parties will continue to jointly use the 21 !subject property interests in the area of Verizon's easement pursuant to Code of Civil Procedure 22 Sections 1240.510, 1240.530, and 1240.630 el seq. pursuant to the terms and conditions of this 23 Stipulation. 24 1 8. The City and Verizon agree that there will be no unreasonable interference with 25 J each party's free access to their own facilities. 26 1 9. If the City requires Verizon to remove, relocate or modify Verizon's facilities that 27 are located on the subject property interests pursuant to a private easement, the City shall 28 reimburse Verizon for its relocation expenses as agreed to by the City and Verizon on a -3- Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff and Verizon California 11086-0157\ 112678% 2.doc completed cost basis, subject to Verizon's standard Billing Letter for custom work orders. To the extent Verizon's facilities existing pursuant to a private easement are required to be relocated by the City, the agreed to costs for that relocation may be submitted to the City for authorized signature and applicable payments. No relocation work will begin until Verizon receives the signed Billing Letter and payments. If the City requires Verizon to remove, relocate or modify Verizon's facilities that are not z = o~ z~ ~ a 5 Q z ° 0- (n a ~ a <c o 2r a aS! NO 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 located pursuant to a private easement, but rather exist on the subject property interests solely pursuant to a public right of way or franchise right, the City shall not pay Verizon its relocation costs, unless government funding has been obtained for utility relocation costs. In the event the removal, relocation or modification of Verizon's facilities is for the primary benefit of a private developer or subdivider pursuant to Government Code section 66473.6, or caused by an entity not affiliated with the City, the City and Verizon each reserve their respective rights to obtain a determination of their rights and obligations regarding the cost of relocating Verizon's facilities. 10. Upon completion of the City's purchase or eminent domain action concerning the subject property interests involved in the Complaint, if the City requires the relocation of Verizon's existing facilities, the City shall provide Verizon with new and/or existing additional property rights, easement rights or franchise rights that are reasonably comparable with any property rights relinquished under this Stipulation, prior to or contemporaneously with such relocation. After completion of said relocation, Verizon agrees to execute such instrument as is necessary to disclaim or extinguish Verizon's interest in the prior occupied easement. 11. During any construction, reconstruction, repair, or excavation by the City or its agents upon the subject property interests, the City will be responsible for protecting Verizon's existing facilities only to the extent required by law. 12. Each party to this Stipulation agrees to bear its own attorney's fees and costs incurred in this matter. 13. Except as provided in this Stipulation, this Stipulation is not a subordination of Verizon's rights or title to or interest in. its easement on the subject property interests, nor should -4- Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff and Verizon California 11086- 1 7 i 126789% 2.L1oc Z O ° 3 a 2 O w Q a Q K~ w U n Qc~ iup yi 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Stipulation be construed as a waiver of any provisions contained in said easement or a waiver of any cost of relocation of affected facilities. 14. Except as expressly provided in this Stipulation, Verizon agrees that it is entitled to no further compensation to be awarded in. this proceeding. and makes no claim on any deposit for the benefit of the property owner or any judgment awarding damages to defendants. 15. The Court may enter the Final Judgment in Condemnation in this proceeding without further notice to Verizon. No further notice need be given to Verizon of any hearing on z this matter. 'The City, how°ever agrees to provide Verizon with a copy of the Final Judgment in Condemnation and Final Order of Condemnation in this proceeding. 16. The parties agree that this Stipulation for Entry of Interlocutory Judgment may be executed in counterparts. each of which will be deemed an original instrument, and when taken together will constitute the Stipulation for Entry of Interlocutory Judgment. l1 I Iil E IJI Ill I lIJ -5- Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff and Verizon California 11086015711126789v2.doc 1 2 3 4 5 6 7 8 9 10 11 c> 12 J a 13 O Q ~ 14 6 15 r d r 16 w sa 17 LL' e iWeEd 18 19 20 21 22 23 24 25 26 27 28 IT IS SO STIPULATED. DATE: , 2009 Attest: By: Susan W. Jones, M2MC, City Clerk Approved as to form: DATE: , 2009 RICHARDS, WATSON & GERSHON A Professional Corporation PAULA GUTIERREZ BAEZA By. Paula Gutierrez Baeza Attorneys for Plaint` CITY OF TEMECULA DATE: 2009 PLAINTIFF CITY OF TENIECULA, a municipal corporation By: Maryann Edwards, Mayor DEFENDANT VERIZON CALIFORNIA INC. SULLIVAN TAKETA LLP DONN S. TAKETA W:~~-7ar- Donn S. Taketa Attorneys for Defendant VERIZOhT CALIFORNIA INC. -6- Stipulation for Entry of Interlocutory Judgment Submitted by Plaintiff and Verizon California 11086 U15711126789v2.doc ITEM NO. 9 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Aaron Adams, Assistant City Manager DATE: August 11, 2009 SUBJECT: Authorization to Cooperate with the League of California Cities, the California Redevelopment Association, and other Cities and Counties in Litigation Challenging the Constitutionality of any Seizure by State Government of the City's Property Tax, Street Maintenance, and Redevelopment Funds, at the Request of Mayor Edwards PREPARED BY: Tamra Middlecamp, Senior Management Analyst RECOMMENDATION: That the City Council: 1. Adopt a resolution entitled: RESOLUTION NO. 09- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA AUTHORIZING THE CITY ATTORNEY TO COOPERATE WITH THE LEAGUE OF CALIFORNIA CITIES, OTHER CITIES, AND COUNTIES IN LITIGATION CHALLENGING THE CONSTITUTIONALITY OF ANY SEIZURE BY STATE GOVERNMENT OF THE CITY'S PROPERTY TAX, STREET MAINTENANCE, AND REDEVELOPMENT FUNDS BACKGROUND: On May 5, 2009, the Department of Finance announced it had proposed to the Governor that the state "borrow" over $2 billion in local property taxes from cities, counties and special districts to balance the state budget, causing deeper cuts in local public safety and other vital services. In order to start that process, the Governor would have to issue a proclamation declaring the existence of a "severe financial hardship." The legislature would then have to implement the "borrowing" program by passing urgency legislation, requiring a two-thirds vote, which identifies how the "loan" will be repaid with interest. The potential fiscal impact to the City of Temecula and the City of Temecula Redevelopment Agency is estimated at $6,788,685. This type of budget reduction would greatly impact the City's ability to continue to fund public safety, roads, parks, and many other vital services. "Loans" of local government funds are irresponsible. Unlike budget cuts or tax increases, "loans" will only worsen the state's structural deficit. Also, "loans" could do serious damage to some cities who are already facing seriously reduced revenues. It is imperative that a strong message be sent to the legislature about these concerns. Cities and Counties cannot pay for the State's budget problems. The State needs to fix their budget problem on their own with their own funds and not just prolong the current problem. The League of California Cities is encouraging all cities to take a very aggressive approach to fighting the State's proposal to "borrow" funds from local government. FISCAL IMPACT: Property Tax Borrowing (General Fund) FY 09/10 $1,543,055; Redevelopment Agency Take FY 09/10 $4,350,471; Redevelopment Agency Take FY 10/11 $895,159. ATTACHMENTS: Resolution NO. Spreadsheet. RESOLUTION NO. 09 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA AUTHORIZING THE CITY ATTORNEY TO COOPERATE WITH THE LEAGUE OF CALIFORNIA CITIES, OTHER CITIES, AND COUNTIES IN LITIGATION CHALLENGING THE CONSTITUTIONALITY OF ANY SEIZURE BY STATE GOVERNMENT OF THE CITY'S PROPERTY TAX, STREET MAINTENANCE, AND REDEVELOPMENT FUNDS THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: WHEREAS, the current economic crisis has placed cities under incredible financial pressure and caused them to make painful budget cuts, including layoffs and furloughs of city workers, decreasing maintenance and operations of public facilities, and reductions in direct services to keep spending in line with declining revenues; and WHEREAS, since the early 1990s, the state government of California has seized over $10 billion of city property tax revenues statewide, now amounting to over $900 million each year, to fund the state budget even after deducting public safety program payments to cities by the state; and WHEREAS, since early 1995, the state government also has seized $1.04 billion of redevelopment tax increment statewide, and the Governor and Legislature are now considering seizing $1.7 billion in FY 09/10 and $350 million in FY 10/11; and WHEREAS, on April 30, 2009, in the case of CRA v. Genest, the Sacramento Superior Court found similar efforts by the State to seize redevelopment tax increment for the state general fund to be in direct violation of Article XVI, Section 16 of the State Constitution, added by the voters in 1952 as Proposition 18, which requires that tax increment be used exclusively for the benefit of redevelopment project areas; and WHEREAS, the State Legislature has proposed transferring $1 billion of local gas taxes and weight fees to the state general fund to balance the state budget, funds that would have been used to maintain the City's streets, bridges, traffic signals, streetlights, sidewalks and related traffic safety facilities for the use of the motoring public; and WHEREAS, some cities report to the League of California Cities that they will be forced to eliminate part or all of their street maintenance operations while others will be forced to cut back in other areas (including public safety staffing levels) to use the city general funds for basic street repair and maintenance; and WHEREAS. cities and counties maintain 81 % of the state road network while the state directly maintains just 8%; and WHEREAS, in both Proposition 5 in 1974 and Proposition 2 in 1998, the voters of our state overwhelmingly imposed restrictions on the state's ability to do what the Governor has proposed, and any effort to permanently divert the local share of the gas tax would violate the state constitution and the will of the voters; NOW, THEREFORE, the City Council of the City of Temecula resolves as follows: Section 1. The City Attorney is authorized and directed to take all necessary steps to cooperate with the League of California Cities, the California Redevelopment Association, other cities and counties in supporting litigation against the State of California if the legislature enacts and the governor signs into law legislation that unconstitutionally diverts redevelopment tax increment or the City's share of funding from the High Users Tax Account (HUTA), also known as the "gas tax," to fund the state general fund. Section 2. A copy of this Resolution shall be sent by the City Clerk, with an accompanying letter from the Mayor to the Governor and each legislator, informing them in the clearest of terms of the City's adamant resolve to oppose any effort to frustrate the will of the electorate as expressed in Proposition 5 (1974) and Proposition 8 (1998) concerning the proper use and allocation of the gas tax. Section 3. A copy of this Resolution shall be sent by the City Clerk to the League of California Cities, the local chamber of commerce, and other community groups whose members are affected by this proposal to create unsafe conditions on the streets of our City for pedestrians, bicyclists and motorists. Section 4. This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 11th day of August, 2009. Maryann Edwards, Mayor ATTEST: Susan W. Jones, MMC City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA } I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 09- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 11 th day of August, 2009, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Susan W. Jones, MMC City Clerk CITY OF TEMECULA STATE OF CALIFORNIA FY09/10 BUDGET ESTIMATED REVENUE IMPACTS Source: California City Finance; California Redevelopment Associations FY 09/10 FYI 0/11 Total Property Tax Borrowing (General Fund) $ 1,543,055 $ $ 1,543,055 Total Redevelopment Agency 4,350,471 895,159 5,245,630 Total City State Impact $ 5,893,526 $ 895,159 $ 6,788,685 Property Tax would be borrowed under Prop 1 A, and would be repaid in FY12/13 FY 09/10 total take is $1.7 billion. FY10/11 total take is $350 million, or 4.86 less than FY09/11. FY10/11 calculated by dividing City's FY09/10 estimated RDA share by 4.86. Redevelopment is a "take" that will be due to State on May 10th. Amounts to be paid can be borrowed from the Affordable Housing fund, but must be paid back to the Affordable Housing Fund in 5 years. If Agency can't pay back within 5 years, Agency set aside requirement will increase to 25% rather than 20% until paid back. Agencies making the payment would receive a one year extension on their redevelopment plan limits for receiving tax increment and housing production requirements would be suspended for FY09/10. ITEM NO. 1 0 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Andre O'Harra DATE: August 11, 2009 SUBJECT: Police Department Office of Traffic Safety (OTS) Grant Funding PREPARED BY: Heidi Schrader, Senior Management Analyst RECOMMENDATION: That the City Council: Increase estimated General Fund Grant Revenue by $79,000. 2. Appropriate $79,000 from General Fund Grant Revenue to the Police Department. BACKGROUND: The City of Temecula has been active in seeking grant funding to participate in the Office of Traffic Safety DUI Enforcement and Awareness Program. The main objective of the grant program is to employ enforcement and innovative strategies to reduce the number of people killed and injured in traffic collisions. The strategy is to fund DUI checkpoints and DUI roving patrols. Additionally, the program will also develop a 'Hot Sheet' program and 'Stake out' operations for officers to concentrate on repeat DUI offenders on probation who have had their license suspended or revoked. Recently the City received notification of the award of $79,000 in grant funding from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration to participate in this program per grant agreement AL1091. The grant offsets overtime costs for enforcement operations held between October 1, 2009 and September 30, 2010. The operations will include DUI checkpoints, saturation patrols, motorcycle safety DUI saturation patrols, warrant operations, stakeout operations and court sting operations. FISCAL IMPACT: General Fund grant revenues will be increased by $79,000 and will offset the appropriation of $79,000 in the Police Department budget for overtime (001-170-503- 5279). TEMECULA COMMUNITY SERVICES DISTRICT ITEM NO. 11 ACTION MINUTES of JULY 28, 2009 City Council Chambers, 43200 Business Park Drive, Temecula, California TEMECULA COMMUNITY SERVICES DISTRICT MEETING The Temecula Community Services District Meeting convened at 8:23 PM. CALL TO ORDER: President Chuck Washington ROLL CALL: DIRECTORS: Comerchero, Edwards, Naggar, Roberts, Washington CSD PUBLIC COMMENTS There were no public comments. CSD CONSENT CALENDAR 14 Action Minutes:- Approved Staff Recommendation (5-0-0) - Director Edwards made the motion; it was seconded by Director Naggar; and electronic vote reflected unanimous approval. RECOMMENDATION: 14.1 Approve the action minutes of July 14, 2009. 15 Children's Museum Exhibit Aareement - Approved Staff Recommendation (5-0-0) - Director Edwards made the motion; it was seconded by Director Naggar; and electronic vote reflected unanimous approval. RECOMMENDATION: 15.1 Approve the agreement between Thinkwell Group, Inc. and the Temecula Community Services District to design, fabricate, and install a new exhibit in the "Tot Room" area of Pennypickle's, Temecula Children's Museum in the amount of $125,000; 15.2 Approve a contingency not to exceed $12,500. Action Minutes CSD 072809 1 CSD DEPARTMENTAL REPORT CSD DIRECTOR OF COMMUNITY SERVICES REPORT CSD GENERAL MANAGERS REPORT CSD BOARD OF DIRECTORS REPORTS CSD ADJOURNMENT At 8:24 P.M., the Temecula Community Services District meeting was formally adjourned to Tuesday, August 11, 2009, at 5:30 p.m. for a Closed Session with regular session commencing at 7:00 p.m., City Council Chambers, 43200 Business Park Drive, Temecula, California. Chuck Washington, President ATTEST: Susan W. Jones, MMC City Clerk/District Secretary [SEAL] Action Minutes CSD 072809 2 ITEM NO. 12 Approvals City Attorney Director of Finance City Manager TEMECULA COMMUNITY SERVICES DISTRICT AGENDA REPORT TO: General Manager/Board of Directors FROM: Herman Parker, Director of Community Services DATE: August 11, 2009 SUBJECT: Notice of Completion - Murrieta Creek Multi-Purpose Trail, Project No. PW01-27 PREPARED BY: Greg Butler, Director of Public Works Amer Attar, Principal Engineer - Cl P Jon Salazar, Associate Engineer- CIP RECOMMENDATION: That the Board of Directors: 1. Accept the Murrieta Creek Multi-Purpose Trail Project, No. PW01-27, as complete; and 2. Direct the City Clerk to file and record the Notice of Completion, release the Performance Bond and accept a one (1) year Maintenance Bond in the amount of 10% of the contract amount; and 3. Release the Labor and Materials Bond seven (7) months after filing the Notice of Completion if no liens have been filed. BACKGROUND: This project consisted of the construction of an approximately 1.5 mile long asphalt and decomposed granite trail, including picnic facilities and landscaping, and intended for use by pedestrians, bicyclists, and equestrian traffic. On August 28, 2007 the City Council awarded the project's construction contract to IAC Engineering, Inc. in the amount of $1,308,148.48 and authorized a contingency in the amount of $130, 814.85, which is 10% of the contract amount, for a total authorization of $1,438,963.33. On July 22, 2008 the City Council authorized an increase to the project contingency in the amount of $73,570.37 to cover unanticipated work required by Southern California Edison, which increased the total authorization to $1,512,533.70. The contractor has completed the work in accordance with the approved plans and specifications and to the satisfaction of the Director of Public Works. All work will be warranted for a period of one (1) year from the date the City obtained "beneficial use" of the project improvements, determined to be July 1, 2009. The retention for this project will be released pursuant to the provisions of Public Contract Code Section 7107. FISCAL IMPACT: The Murrieta Creek Multi-Purpose Trail, Project No. PW01-27, is identified in the City's Capital Improvement Program, Fiscal Years 2009-2013, and is funded with Development Impact Fees (Public Facility, Open Space) and a Federal Transportation Enhancement Activity (TEA) grant. The total cost of the project was $1,436,263.88. ATTACHMENTS: Notice of Completion Maintenance Bond Contractor's Aff idavit and Final Release Project Description Location Map AND RETURN TO: CITY CLERK CITY OF TEMECULA P.O. Box 9033 43200 Business Park Drive Temecula, CA 92589-9033 NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN THAT: 1. The City of Temecula is the owner of the property hereinafter described. 2. The full address of the City of Temecula is 43200 Business Park Dr, Temecula, CA 92596. 3. The Nature of Interest is a Contract which was awarded by the City of Temecula to IAC Enaineerina. Inc. [1870 W. Oh St.. Upland. CA 91786] to perform the following work of improvement: MURRIETA CREEK MULTI-PURPOSE TRAIL (Project No. PW01-27) 4. Said work was completed by said company according to plans and specifications and to the satisfaction of the Director of Public Works of the City of Temecula and that said work was accepted by the City Council of the City of Temecula at a regular meeting thereof held on August 11, 2009. That upon said contract the SureTec Insurance Company was surety for the bond given by the said company as required by law. 5. The property on which said work of improvement was completed is in the City of Temecula, County of Riverside, State of California, and is described as follows: Diaz Road between Winchester Road and Rancho California Road 6. The location of said property is: Diaz Road between Rancho California Road and Winchester Road within the City of Temecula. Dated at Temecula, California, this 11th day of August, 2009 City of Temecula STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) Susan W. Jones MMC, City Clerk I, Susan W. Jones CMC, City Clerk of the City of Temecula, California and do hereby certify under penalty of perjury, that the foregoing NOTICE OF COMPLETION is true and correct, and that said NOTICE OF COMPLETION was duly and regularly ordered to be recorded in the Office of the County Recorder of Riverside by said City Council. Dated at Temecula, California, this 11th day of August, 2009. City of Temecula Susan W. Jones MMC, City Clerk C \Program Files\Neevia.ComDocument Converter\temp1936205.doc Executed in Duplicate CITY OF TEMECULA, PUBLIC WORKS DEPARTMENT MAINTENANCE BOND PROJECT" NO. PW07-27 MURRIETA CREEK MULTI-PURPOSE TRAIL. KNOW ALL PERSONS BY THESE PRESENT THAT; Bond #4363492 IAC Engineering, Inc. 1870 Wst 9th Street Upland, CA 91786 NAME AND ADDRESS CONTRACTOR'S a Corporation , hereinafter called Principal, and (fill In whether a Corporation, Partnership or individual) SureTec Insurance Company 3033 5th Ave. San Diego, CA 92103 NAME AND ADDRESS OF SURETY hereinafter called SURETY, are held and firmly bound unto CITY OF TEMECULA, hereinafter called OWNER, in the penal sum of One Hundred Forty Four Thousand Two Hundred Eighty DOLLARS and _ ero CENTS 143,623.00 } in lawful money of the United States, said sum being not less than ten (10%) of the Contract value payable by the said City of Temecula under the terms of the Contract, for the payment of which, we bind ourselves, successors, and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such that whereas, the Principal entered into a certain Contract with the OWNER, dated the 28th day of _ August 2007, a copy of which is hereto attached and made a part hereof for the construction of PROJECT NO. PW01- 27, MURRIETA CREEK MULTIPURPOSE TRAIL. WHEREAS, said Contract provides that the Principal will furnish a bond conditioned to guarantee for the period of one (1) year after approval of the final estimate on said job, by the OWNER, against all defects in workmanship and materials which may become apparent during said period; and WHEREAS, the said Contract has been completed, and was the final estimate approved on , 2007. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if within one year from the date of approval of the final estimate on said job pursuant to the Contract, the work done under the terms of said Contract shall disclose poor workmanship in the execution of said work, and the carrying out of the terms of said Contract, or it shall appear that defective materials were furnished thereunder, then this obligation shall remain in full force and virtue, otherwise this instrument shall be void. As a part of the obligation secured hereby and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable attorney's fees incurred by the City of Temecula in successfully enforcing this obligation, all to be taxed as costs and included in any judgment rendered, MAINTENANCE POND M-1 RC1PA0JrCt8U1W01 V101-Z7MUld•PLnVoyrr,M01147F A1.AM dLK0 820G?A)0 The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract, or to the work to be performed thereunder, or to the specifications accompanying the same, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract, or to the work, or to the Specifications. Signed and sealed this 13th day of July, 2009 x2W, (Seal) SURETY Su eTec Insurance Company By, PRINCIPAL IAC Engineering, Inc. Frank Morones (Name) Attorney-in-Fact (Title) APPROVED AS TO FORM: DEBRA L. FRANCO (Name) PRESIDENT (Title) By; (Name) Peter M. Thorson, City Attorney (Title) MAINTENANCE BOND M-Z FKIPSPROJGCTSTMInVOt-27 Mum-PurpWTtamPMI-27 FINAL UdonNm907182007,6oo CITY OF TEMECULA, PUBLIC WORKS DEPARTMENT CONTRACTOR'S AFFIDAVIT AND FINAL RELEASE PROJECT NO. PWOI-27 MURRIETA CREEK MULTI-PURPOSE TRAIL This is to certify that IAC ENGINEERING, INC(hereinafter the "CONTRACTOR") declares to the City of Temecula, under oath, that he/she/it has paid in full for all materials, supplies, labor, services, tools, equipment, and all other bills contracted for by the CONTRACTOR or by any of the CONTRACTOR's agents, employees or subcontractors used or in contribution to the execution of it's contract with the City of Temecula, with regard to the building, erection, construction, or repair of that certain work of improvement known as PROJECT NO. PW01-27, MURRIETA CREEK MULTI-PURPOSE TRAIL, situated in the City of Temecula, State of California, more particularly described as follows: MURRIETA CREEK MULTI-PURPOSE TRAIL ON DIAL BETWEEN WINCHESTER RD. AND RANCHO CALIFORNIA RD. INSERT ADDRESS OR DESCRIBE LOCATION OF WORK HERE The CONTRACTOR declares that it knows of no unpaid debts or claims arising out of said Contract which would constitute grounds for any third party to claim a Stop Notice against of any unpaid sums owing to the CONTRACTOR. Further, in connection with the final payment of the Contract, the CONTRACTOR hereby disputes the following amounts: Description Dollar Amount to Dispute NONE NONE Pursuant to Public Contract Code §7100, the CONTRACTOR does hereby fully release and acquit the City of Temecula and all agents and employees of the City, and each of them, from any and all claims, debts, demands, or cause of action which exist or might exist in favor of the CONTRACTOR by reason of payment by the City of Temecula of any contract amount which the CONTRACTOR has not disputed above. CONTRACTOR IAC ENGINEERING, INC. r.. f. Dated: 7/7/2009 By: ( _ Signature DEBRA L. FRANCO, PRESIDENT Print Name and Title RELEASE R-1 RSCIPIPROJeC7SP%W1WW01-I7MWWNNPOUTraVMI-Y7RNAL Ad*n*ffn307182007.d0t PROJECT LOCATION Project Title: MURRIETA CREEK MULTI-PURPOSE TRAIL ~.~~R RAY Ra G 9 V ~ ~ O Q OJ AP ~ARGAr?/P O O{ i ti0 s 9 O ~O~ O O~ lw C NCHO / Q~ P\ pops l O B ~'qR ~Y~c Y ~S C ~lSTAP, RANCHO CALIFORNIA RD 1Y ~ _ ~5a F F'AUBA RQ 'P S ~~qGO N ~~isAm D Z 175 PROJECT DESCRIPTION Project Title: MURRIETA CREEK MULTI-PURPOSE TRAIL PRIORITY: 1 Project Type: Infrastructure Description- The Murrieta Creek Multi-Purpose Trail will extend from the southwest side of Murrieta Creek near the vicinity of theTemecula Parkway/Interstate-15/Front Street juncture, north to the City limit at Cherry Street. This project will be divided into two phases. Phase I will cover trail improvements from Winchester Road to Rancho California Road. Phase 11 will complete the extension of the trail from Rancho California Road to Temecula Parkway. The entire project will consist of the design and construction of an approximately two-mile pedestrian/bicycle/equestrian trail, including two pedestrian bridge crossings at Murrieta Creek (Phase II), gazebos, benches, lookout points along the trail, appropriate signage, necessary grading, paving and striping of the trail course, related street improvements, landscaping, and necessary infrastructure to support trail facilities (i.e., lighting and water utilities). Department: Public Works/Community Services - Account No. 210.190.142 Scope of Project- Project will include signage, pedestrian bridges, trail and landscape improvements along Murrieta Creek Benefit- Project will improve pedestrian, bike and equestrian access to the Old Town area and the industrial park, and establish connectivity to other existing and plan trail improvements. The City received a TEA (Transportation Enhancement Activities) program grant in the amount of $1,214,000 for this project. Project Cost: Actuals Total Project to Date 2008-09 2009-10 2010-11 2011-12 2012-13 Cost Administration $ 185,080 $ 75,770 $ 260,850 Construction $ 80,823 $ 1,626,523 $ 1,707,346 Construction Engineering $ 33,014 $ 35,486 $ 68,500 Design $ 241,897 $ 9,434 $ 251,331 MSHCP $ 111,276 $ 111,276 Totals $ 540,814 $ 1,858,489 $ - $ - $ - $ - $ 2,399,303 Source of Funds: DIF (Public Facility) $ 127,200 $ 127,200 DIF (Open Space) $ 215,375 $ 817,157 $ 1,032,532 TEA $ 198,239 $ 1,041,332 $ 1,239,571 Total Funding: $ 540,814 $ 1,858,489 $ - $ - $ - $ - $ 2,399,303 Future O & M Cost: $ 20,000 Annually 109 ITEM NO. 13 Approvals City Attorney Director of Finance City Manager TEMECULA COMMUNITY SERVICES DISTRICT AGENDA REPORT TO: General Manager/Board of Directors FROM: Herman D. Parker, Director of Community Services DATE: August 11, 2009 SUBJECT: Margarita Officials Association Agreement PREPARED BY: Julie Pelletier, Recreation Superintendent RECOMMENDATION: That the Board of Directors approves an Agreement between the Temecula Community Services District and Margarita Officials Association to provide adult softball league and tournament officiating services in the amount of $40,000. BACKGROUND: The Community Services Department offers year round adult softball league and tournament play as part of the City's sponsored sports program. This extremely popular adult sports program is currently offered at Patricia H. Birdsall Sports Park and attracts over 250 teams annually and the total number of games played exceeds 1,100. Margarita Officials Association has overfortyyears of professional experience in providing officiating services throughout southern California. In addition, they have a proven record in providing superior officiating support and customer service to the City of Temecula for the past eighteen years. Officiating service fees are offset by league registration fees. FISCAL IMPACT: The cost necessary to provide professional officiating services for FY09-10 is $40,000, and is currently budgeted in 190-187-999-5250. ATTACHMENTS: Agreement AGREEMENT BETWEEN MARGARITA OFFICIALS ASSOCIATION AND THE COMMUNITY SERVICES DISTRICT, TEMECULA, CALIFORNIA This Agreement is made and entered into as of August 11, 2009, by and between the Temecula Community Services District, Temecula, California ("District") and Margarita Officials Association ("Association"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: 1. TERM OF AGREEMENT. The terms of this Agreement shall be in force commencing August 11, 2009, and terminating August 30, 2010. This Agreement is subject to prior termination as set forth in paragraph 8 below. 2. RESPONSIBILITIES OF THE ASSOCIATION. The Association shall be responsible for assigning Qualified Officials for all scheduled TCSD softball games in accordance with Exhibit A, Scope of Work, and the following provisions: a. "Qualified Officials" are those softball officials who (i) are registered umpires with Amateur Softball Association; and (ii) maintain general liability insurance with a qualified and reputable insurer of not less than $1,000,000 per occurrence for bodily injury, death and property damage naming the District and the City of Temecula as additional insureds; b. Within five business days of the date of this Agreement, Association shall provide TCSD with a list of the Qualified Officials it will draw from in making assignments and a certificate of insurance from each such official to be approved by the Director of Community Services and Association shall update the list and the certificate of insurance each time a new official is added; c. Association shall assist the District in handling protests including, but not limited to, representing the official(s) at protest meetings, as required; d. When a grievance has been filed with Association, the Association shall notify the District in writing not more than five (5) days after the grievance is filed with the Association and provide a copy of the grievance; and e. Association shall be responsible for providing, maintaining, and repairing the equipment, materials, supplies, and similar items, necessary for the proper conduct of the officiating to be performed. 3. RESPONSIBILITIES OF THE DISTRICT. a. The District has the right to refuse the services of any Association official, with or without cause, provided the District notifies the Association of its decision and Association shall not assign any such official to District games; b. The District shall provide fields in playable condition and set up necessary equipment for games. c. The District is to provide the Association with a copy of all by-laws and rules unique to the conduct of their games. 4. COMPENSATION. The District shall pay to the Association the fees set forth on Exhibit A., Scope of Work. Billing by the Association shall be made to the District monthly, in writing, for all games played the previous month. The fees are payable to the Association no C:\Program FilesWeevia.Com\Document Converter\temp\936227.doc later than thirty (30) working days from receipt of the billing. Association shall be responsible for paying all wages, taxes and other compensation, if any, of the officials and shall defend, protect, indemnify and hold District harmless from any claim for such payments. 5. SCHEDULING. The District shall schedule all games as to the time and location. A complete schedule of games shall be furnished to the Association in sufficient time as to allow for scheduling of officials. When a game is rescheduled or canceled after notification, the Association shall be apprised at least three (3) hours in advance. If this time frame is not met, the District shall pay all fees due as if the game was played. 6. FORFEITURES. Officials shall appear at the game site at least fifteen (15) minutes prior to the scheduled starting time. Should officials fail to appear for a game, when properly notified, the Association shall forfeit the fee in the amount of $30.00 for each official who did not show. Games not played due to the nonappearance of one or both scheduled teams, inclement weather, or other misfortune will be paid for by District at the rate of $35.00 per official, provided an official(s) is present. Should a game in progress be canceled or terminated for any reason, the District shall pay all fees due as if the game was played. 7. PROTESTS. Should an official, for any reason within his/her control, cause a game to be protested, the Association shall submit a verbal report to the District of the circumstances on the following day and a written report shall be provided, if required, within five (5) days. Officials shall be provided by the Association, at no cost to the District for any rescheduled game resulting from a protest that is upheld. 8. TERMINATION. This agreement shall terminate on the prescribed date. Either party retains the right and option to terminate this Agreement prior to such date for any reason upon fifteen (15) days prior written notice to the other. 9. ASSIGNMENT. Neither District nor the Association shall have the right or power to assign or transfer this Agreement, or any interest in it, without the written consent of the other. 10. PERFORMANCE. Association shall at all times faithfully, competently and to the best of his or her ability, experience, and talent, perform all tasks described herein. Association shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Association hereunder in meeting its obligations under this Agreement. 11. INDEMNIFICATION. The Association agrees to defend, indemnify, protect and hold harmless the District, City, its officers, officials, employees and volunteers from and against any and all claims, demands, losses, defense costs or expenses, or liability of any kind or nature which the District, City, its officers, agents and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property arising out of Association's negligent or wrongful acts or omissions in performing or failing to perform under the terms of this Agreement, excepting only liability arising out of the negligence of the District. 12. ASSOCIATION INSURANCE. The Association shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Association, its agents, representatives, or employees in an amount of not less than one million dollars ($1,000,000.00) naming the City and the District as additional insureds with policies and insurers acceptable to the Director of Community Services. C:\Program Files\Neevia.Com\Document Converter\temp\936227.doc 13. INDEPENDENT CONTRACTOR. Association is and shall at all times remain as to the District a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Association shall at all times be under Association's exclusive direction and control. Neither District nor any of its officers, employees or agents shall have control over the conduct of Association or any of Association's officers, employees or agents, except as set forth in this Agreement. Association shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the District. Association shall not incur or have the power to incur any debt, obligation or liability whatever against District, or bind District in any manner. 14. LEGAL RESPONSIBILITIES. The Association shall keep itself informed of State and Federal laws and regulations, which in any manner affect those employed by it or in any way, affect the performance of its service pursuant to this Agreement. The Association shall at all times observe and comply with all such laws and regulations. The District, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Association to comply with this section. 16. NOTICES. Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, {ii} delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or {iii} mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by Notice: To City: To Association: City of Temecula Margarita Officials Association 43200 Business Park Drive P.O. Box 1291 Temecula, California 92590 Oceanside, California 92051-1291 Attention: Director of Community Services 16. GOVERNING LAW. The City and Association understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with jurisdiction over the City of Temecula. 17. ENTIRE AGREEMENT. This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 18. AUTHORITY TO EXECUTE THIS AGREEMENT. The person or persons executing this Agreement on behalf of Association warrants and represents that he or she has the authority to execute this Agreement on behalf of the Association and has the authority to bind Association to the performance of its obligations hereunder. C:\Program Files\Neevia.Com\Document Converter\temp\936227.doc IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. TEMECULA COMMUNITY SERVICES DISTRICT Chuck Washington, President Attest: Susan W. Jones, MMC, City Clerk/ Board Secretary Approved As to Form: Peter M. Thorson City Attorney MARGARITA OFFICIALS ASSOCIATION By CAProgram FilesWeevia.Com\Document ConverterAemp\936227.doc Exhibit A The Margarita Officials Association agrees to: 1. Provide, on a non-exclusive basis, experienced and qualified softball officials to officiate adult slow pitch softball league games and tournaments, on an as needed basis, for the City of Temecula Community Services District at various District park facilities. 2. Provide appropriate scheduling and supervision for softball officials at all District leagues and tournaments. 3. Submit to the Recreation Supervisor, and keep current, a listing of names and phone numbers of its members. 4. Require all officials to purchase, maintain in good order and wear while officiating Temecula league and tournament games, the prescribed uniform and equipment to fulfill the terms of the contract. 5. Conduct on-site evaluations of officials to insure appropriate service and performance levels are maintained. Will periodically provide the Recreation Supervisor copies of evaluations. 6. Provide, at no additional cost to the District, representatives to attend any league organizational meeting as deemed necessary by the Recreation Supervisor, when sufficient notice of meeting is given. 7. Assist, at no additional cost to the District, in deliberating the outcome of protested games, as necessary. 8. Rotate qualified officials on a regular basis. The District has the right to refuse services (assigning/scheduling) of any member of the MOA when the District deems such to be in the best interest of the program. FEE PROPOSAL A. Slow Pitch Softball Officiating Fee (1 umpire per game) $35.00 per game B. Slow Pitch Softball Administrative Fee None Total Per Game Cost $35.00 per game C. Slow Pitch Softball Tournament Fee (1 umpire per game) $35.00 D. Slow Pitch Softball Tournament Administrative Fee None Total Per Tournament Cost $35.00 x number of games played during tournament C:\Program Files\Neevia.Com\Document Converter\temp\936227.doc REDEVELOPMENT AGENCY ITEM NO. 14 ACTION MINUTES of JULY 28, 2009 City Council Chambers, 43200 Business Park Drive, Temecula, California TEMECULA REDEVELOPMENT AGENCY MEETING The Temecula Redevelopment Agency Meeting convened at 8:24 P.M. CALL TO ORDER: Chair Person Ron Roberts ROLL CALL: AGENCY MEMBERS: Comerchero, Edwards, Naggar, Washington, Roberts RDA PUBLIC COMMENTS There were no public comments. RDA CONSENT CALENDAR 17 Action Minutes:- Approved Staff Recommendation (5-0-0) - Agency Member Comerchero made the motion; it was seconded by Agency Member Edwards; and electronic vote reflected unanimous approval. RECOMMENDATION: 17.1 Approve the action minutes of July 14, 2009. Action Minutes RDA 072809 RDA DEPARTMENTAL REPORT RDA EXECUTIVE DIRECTORS REPORT RDA AGENCY MEMBERS REPORTS RDA ADJOURNMENT At 8:25 P.M., the Temecula Redevelopment Agency meeting was formally adjourned to Tuesday, August 11, 2009, at 5:30 p.m. for a Closed Session with regular session commencing at 7:00 p.m., City Council Chambers, 43200 Business Park Drive, Temecula, California. Ron Roberts, Chairperson ATTEST: Susan W. Jones, MMC City Clerk/Agency Secretary [SEAL] Action Minutes RDA 072809 ITEM NO. 15 Approvals City Attorney Director of Finance City Manager TEMECULA REDEVELOPMENT AGENCY AGENDA REPORT TO: Executive Director/Agency Members FROM: Aaron Adams, Assistant City Manager DATE: August 11, 2009 SUBJECT: Approve Service Agreement for Old Town Temecula Holiday Lights Project PREPARED BY: Gloria Wolnick, Economic Development Specialist II RECOMMENDATION: That the Agency Members approve the service agreement with Southern California Lighting in the amount of $50,000 for the 2009 Old Town Temecula Holiday Lights Project. This project will be paid by the Temecula Redevelopment Agency. BACKGROUND: Last year the holiday lights display in Old Town Temecula was very well received. As a result, staff is recommending continuing this program. The holiday lights display included a five-block area along Old Town Front Street and Main Street which was beautifully decorated with white LED lights and holiday wreaths. The Old Town Merchants Association was and is very supportive with this festive holiday light display as it enhances Old Town's holiday entertainment, shopping and dining experience. Similar to last year's contract, the holiday lights display will include a five-block area along Old Town Front Street and Main Street. White LED lights will be displayed in the trees, on the archways located on the north and south side of Old Town, three city facilities and at the proposed ice rink area which will be located in the Town Square area. To address the vandalism that occurred last year on the light poles, the strands of garland with lights will be wrapped higher on the poles. The City selected Southern California Lighting based on their experience, price, and exceptional performance in executing the 2008 holiday lighting and maintenance agreement. The lighting of both arches shall be completed between the hours of 10:00 pm and 6:00 am and will require traffic control measures. The lighting display shall be installed the week of November 2 and fully operational from November 13, 2009 through January 3, 2010. All lighting and materials shall be removed by January 15, 2010. All lights and materials will be provided by Southern California Lighting. The scope of work shall include complete installation, on-going maintenance, and removal of the lighting display at the end of the holiday season. FISCAL IMPACT: The $50,000 will be funded through the Redevelopment Agency FY 2009110 Operating Budget in the Old Town Implementation Plan Line Item. ATTACHMENTS: Service Agreement SERVICE AGREEMENT BETWEEN CITY OF TEMECULA REDEVELOPMENT AGENCY AND MATTHEW KRONQUIST DBA SOUTHERN CALIFORNIA LIGHTING FOR OLD TOWN HOLIDAY LIGHTING DISPLAY THIS AGREEMENT is made and effective as of August 11, 2009, between the City of Temecula Redevelopment Agency, a municipal corporation (hereinafter referred to as "Agency"), and Matthew Kronquist DBA Southern California Lighting, a Sole Proprietor (hereinafter referred to as "Contractor"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: TERM This Agreement shall commence on August 11, 2009, and shall remain and continue in effect until tasks described herein are completed, but in no event later than February 1, 2010, unless sooner terminated pursuant to the provisions of this Agreement. 2. SCOPE OF WORK Contractor shall perform all of the work described in the Scope of Work, attached hereto and incorporated herein as Exhibit A. ("Work"), and shall provide and furnish all the labor, materials, necessary tools, expendable equipment, and all utility and transportation services required for the Work. All of said Work to be performed and materials to be furnished for the Work shall be in strict accordance with the specifications set forth in the Scope of Work, Exhibit A. 3. PAYMENT a. The Agency agrees to pay Contractor in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, Payment Rates and Schedule, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. Any terms in Exhibit B, other than the payment rates and schedule of payment, are null and void. This amount shall not exceed $50,000 and no cents unless additional payment is approved as provided in this Agreement. b. Contractor shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the Executive Director. Contractor shall be compensated for any additional services in the amounts and in the manner as agreed to by Executive Director and Contractor at the time Agency's written authorization is given to Contractor for the performance of said services. C. Contractor will submit invoices monthly for actual services performed. Invoices shall be submitted between the first and fifteenth business day of each month, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the Agency disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. For all reimbursements authorized by this Agreement, Contractor shall provide receipts on all reimbursable expenses in excess of fifty dollars ($50) in such form as approved by the Director of Finance. 4. PERFORMANCE Contractor shall at all time faithfully, competently and to the best of his or her ability, experience, and talent, performs all tasks described herein. Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Contractor hereunder in meeting its obligations under this Agreement. 5. CITY APPROVAL All labor, materials, tools, equipment, and services shall be furnished and work performed and completed subject to the approval of Agency or its authorized representatives. 6. WAIVER OF CLAIMS On or before making final request for payment under Paragraph 3 above, Contractor shall submit to Agency, in writing, all claims for compensation under or arising out of this Agreement. The acceptance by Contractor of the final payment shall constitute a waiver of all claims against Agency under or arising out of this Agreement, except those previously made in writing and request for payment. Contractor shall be required to execute an affidavit, release and indemnify Agreement with each claim for payment. 7. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE a. The Agency may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Contractor at least ten (10) days prior written notice. Upon receipt of said notice, the Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the Agency suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. b. In the event this Agreement is terminated pursuant to this Section, the Agency shall pay to Contractor the actual value of the work performed up to the time of termination, provided that the work performed is of value to the Agency. Upon termination of the Agreement pursuant to this Section, the Contractor will submit an invoice to the Agency, pursuant to Section entitled "PAYMENT" herein. 8. DEFAULT OF CONTRACTOR a. The Contractor's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default for cause under the terms of this Agreement, Agency shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Contractor. If such failure by the Contractor to make progress in the performance of work hereunder arises out of causes beyond the Contractor's control, and without fault or negligence of the Contractor, it shall not be considered a default, b. If the Executive Director or his delegate determines that the Contractor is in default in the performance of any of the terms or conditions of this Agreement, it shall serve the Contractor with written notice of the default. The Contractor shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Contractor fails to cure its default within such period of time, the Agency shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. 9. INDEMNIFICATION The Contractor agrees to defend, indemnify, protect and hold harmless the Agency, City, and/or District, its officers, officials, employees and volunteers from and against any and all claims, demands, losses, defense costs or expenses, including attorney fees and expert witness fees, or liability of any kind or nature which the Agency, City, and/or District, its officers, agents, employees or volunteers may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property arising out of Contractor's negligent or wrongful acts or omissions arising out of or in any way related to the performance or non-performance of this Agreement, excepting only liability arising out of the negligence of the Agency. 10. INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: CG 00 01 11 85 or 881) Insurance Services Office Commercial General Liability form No. . 2) Insurance Services Office Business Auto Coverage form CA 00 01 06 92 covering Automobile Liability, code 1 (any auto). If the Contractor owns no automobiles, a non-owned auto endorsement to the General Liability policy described above is acceptable. 3) Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. If the Contractor has no employees while performing under this Agreement, worker's compensation insurance is not required, but Contractor shall execute a declaration that it has no employees. b. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1) General Liability: One million ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2) Automobile Liability: One million ($1,000,000) per accident for bodily injury and property damage. 3) Worker's Compensation as required by the State of California; Employer's Liability: One million dollars ($1,000,000) per accident for bodily injury or disease. C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Executive Director. At the option of the Executive Director, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Agency, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1) The Agency, its officers, officials, employees and volunteers are to be covered as insured's, as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Agency, its officers, officials, employees or volunteers. 2) For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the Agency, its officers, officials, employees and volunteers. Any insurance or self-insured maintained by the Agency, its officers, officials, employees or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the Agency, its officers, officials, employees or volunteers. 4) The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5) Each insurance policy required by this agreement shall be endorsed to state: should the policy be canceled before the expiration date the issuing insurer will endeavor to mail thirty (30) days' prior written notice to the Agency. 6) If insurance coverage is canceled or, reduced in coverage or in limits the Contractor shall within two (2) business days of notice from insurer phone, fax, and/or notify the Agency via certified mail, return receipt requested of the changes to or cancellation of the policy. e. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of A-:VII or better, unless otherwise acceptable to the Agency. Self insurance shall not be considered to comply with these insurance requirements. f. Verification of Coverage. Contractor shall furnish the Agency with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the Agency. All endorsements are to be received and approved by the Agency before work commences. As an alternative to the Agency's forms, the Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications. g. By executing this Agreement, Contractor hereby certifies I am aware of the provision of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workman's Compensation or undertake self- insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this Contract. 11. TIME OF THE ESSENCE Time is of the essence in this Agreement. 12. INDEPENDENT CONTRACTOR a. Contractor is and shall at all times remain as to the Agency a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither Agency nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the Agency. Contractor shall not incur or have the power to incur any debt, obligation or liability whatever against Agency, or bind Agency in any manner. b. No employee benefits shall be available to Contractor in connection with the performance of this Agreement. Except for the fees paid to Contractor as provided in the Agreement, Agency shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for Agency. Agency shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing services hereunder. 13. LEGAL RESPONSIBILITIES The Contractor shall keep itself informed of all local, State and Federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Contractor shall at all times observe and comply with all such ordinances, laws and regulations. The Agency, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Contractor to comply with this section. 14. CONTRACTOR'S INDEPENDENT INVESTIGATION No plea of ignorance of conditions that exist or that may hereafter exist or of conditions of difficulties that may be encountered in the execution of the work under this Agreement, as a result of failure to make the necessary independent examinations and investigations, and no plea of reliance on initial investigations or reports prepared by Agency for purposes of letting this Agreement out to proposal will be accepted as an excuse for any failure or omission on the part of the Contractor to fulfill in every detail all requirements of this Agreement. Nor will such reasons be accepted as a basis for any claims whatsoever for extra compensation or for an extension of time. 15. CONTRACTOR'S AFFIDAVIT After the completion of the Work contemplated by this Agreement, Contractor shall file an affidavit with the Executive Director stating that all workmen and persons employed, all firms supplying materials, and all subcontractors on the Work have been paid in full, and that there are no claims outstanding against the project for either labor or materials, except certain items, if any, to be set forth in an affidavit covering disputed claims or items in connection with a Stop Notice which has been filed under the provisions of the laws of the State of California. 16. PROHIBITED INTEREST No officer, or employee of the City of Temecula Redevelopment Agency shall have any financial interest, direct or indirect, in this Agreement, the proceeds thereof, the Contractor, or Contractor's sub-contractors for this project, during his/her tenure or for one year thereafter. The Contractor hereby warrants and represents to the Agency that no officer or employee of the City of Temecula Redevelopment Agency has any interest, whether contractual, non- contractual, financial or otherwise, in this transaction, or in the business of the Contractor or Contractor's sub-contractors on this project. Contractor further agrees to notify the Agency in the event any such interest is discovered whether or not such interest is prohibited by law or this Agreement. 17. BOOKS AND RECORDS Contractor's books, records, and plans or such part thereof as may be engaged in the performance of this Agreement, shall at all reasonable times be subject to inspection and audit by any authorized representative of the Agency. 18. UTILITY LOCATION Agency acknowledges its responsibilities with respect to locating utility facilities pursuant to California Government Code Section 4215. 19. REGIONAL NOTIFICATION CENTERS Contractor agrees to contact the appropriate regional notification center in accordance with Government Code Section 4215. 20. DISCRIMINATION Contractor represents that it has not, and agrees that it will not, discriminate in its employment practices on the basis of race, creed, religion, national origin, color, sex, age, or handicap. 21. WRITTEN NOTICE Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by Notice. Notice shall be effective upon delivery to the addresses specified below or on the third business day following deposit with the document delivery service or United States Mail as provided above. To City of Temecula City of Temecula Redevelopment Agency Redevelopment Agency Attn: Executive Director P.O. Box 9033 Temecula, California 92589-9033 -or- City of Temecula Redevelopment Agency Attn: Executive Director 43200 Business Park Drive Temecula, California 92590 To Contractor: Matthew Kronquist DBA Southern California Lighting Attn: Matthew Kronquist 28163 Lookout Pointe Lane Menifee, CA 92585 22. ASSIGNMENT The Contractor shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the Agency. Upon termination of this Agreement, Contractor's sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the City Council and the Contractor. 23. LICENSES At all times during the term of this Agreement, Contractor shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement. 24. GOVERNING LAW The Agency and Contractor understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with geographic jurisdiction over the City of Temecula. In the event such litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as determined by the Court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted. 25. ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 26. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of the Contractor and has the authority to bind Contractor to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF TEMECULA REDEVELOPMENT AGENCY By: Ron Roberts, RDA Chairperson ATTEST: Susan W. Jones, MMC City Clerk/Agency Secretary APPROVED AS TO FORM: By: Peter M. Thorson Agency Counsel CONTRACTOR By: Matthew Kronquist, Owner Matthew Kronquist DBA Southern California Lighting 28163 Lookout Pointe Lane Menifee, CA 92585 951.402.2000 FSM Initials: Date: EXHIBIT "A" SCOPE OF WORK 10 EXHIBIT "A" SCOPE OF WORK Contractor shall provide, install, and maintain a holiday lighting display in Old Town Temecula. The Agency's vision is to light up a five block area in Old Town, along Old Town Front Street, Main Street, and Town Square for this holiday season. All lights and materials shall be provided by the Contractor (white LED lights). The scope of work shall include complete installation, on-going maintenance, and removal of the holiday lighting display at the end of the holiday season. The lighting of both arches shall be completed between the hours of 10:00 p.m. and 6:00 p.m. Traffic control measures will be provided by the City of Temecula during installation and removal. Contractor shall coordinate with the Agency on scheduling the light installation and light removal in Old Town. The lighting display shall be installed the week of November 2 and fully operational from November 13, 2009 through January 3, 2010. All lighting and materials shall be removed by January 15, 2010. EXHIBIT "A-1" The scope of work provided by the Contractor is outlined as follows: Quote Details (what's included) I. Installation (Installed by Nov 13th.)(Weather Permitting) 2. Maintenance (All product and decor is covered from normal wear and tear as well as public theft or natural disaster. Southern California Lighting is liable to replace any product which needs to be repaired or replaced.) 3. Maintenance Checks (Weekly maintenance checks will be scheduled to assure lighting displays are working properly throughout the holiday season.) 4. Removal (All product and decor will be removed in a timely manner before January 15 th .)(Weather permitting) 5. Insurance (Southern California Lighting is fully licensed and insured to meet and surpass the requested requirements of the city of Temecula.) 6. Installation Technique (All aspects of installation will be done in a non invasive manner to preserve the historic value of Old Town Temecula. 7. Product Terms (Product will be rented to the city of Temecula for the duration of the holiday season. All upkeep, storage, and maintenance will be taken care of by Southern California Lighting.) Any other questions please contact Southern California Lighting at (951) 402-2000 Holiday Lighting Display City of Temecula, The following quote contains the following: 1. Installation of all holiday lighting displays 2. Maintenance of all holiday lighting displays, including weekly service checks to verify workability of all holiday lighting and decor elements. 3. Insurance of all holiday lighting and decor. To include repair or replacement of display items that are stolen or damaged by public persons. 4. Removal of holiday lighting display elements on or before the requested date specified. Structures and trees: 1. 2 Archways (including base and arch): a. 1000 mini lights in a waterfall style display around each stone tower. design will be installed using non invasive techniques to leave structures with no damage when lighting is installed and removed. 2. 2 trees at North arch, these two trees will be draped with swag style lighting and contain approximately 2000 lights per tree 3. 2 trees at South arch, these two trees will have base and branches wrapped approximately 20' high with approximately 4-6" spacing 4. 2 trees in front of the Mere building will be draped with swag style lighting and contain approximately 300 lights per tree. 5. 15 trees lining old town front street , these lights will be installed correctly according to the individual type of tree. Light standards: 115 Light standards approximately 16' tall will include 200 mini lights that will not be stapled or nailed into pole. The light poles will be wrapped with lit garland. The lit garland will be attached to pole using a non invasive method to meet the requirements of the city of Temecula. City Facilities: Four city facilities will be outlined with lights: 1. Temecula Children's Museum: Roof lines will be outlined with larger bulb C7 LED lights to create a perfect line with sharp distinct features. Railings and porch will be outlined with mini LED lights. Two sides of the building will be covered. 2. Gallery at the Mere: Roof lines and porch will be outlined with larger bulb C7 LED lights to create a perfect line with sharp distinct features. Porch posts will be candy cane wrapped with mini LED lights. 3. Old Town Temecula Theater: a. All rooflines excluding the upper most perimeters will be extenuated with C7 LED lights. b. All railings on three sides of buildings will be covered in mini LED lights. These lights will be under hand rails in order for hand rails to function properly while lights are in service. c. Two 80" lit wreaths will be placed on the Theater, both located on the south side. d. LED lights will line the overhang above the walkway running parallel to the Mere building while mini LED lights will spiral down the support poles. 4. Santa's Workshop: All roof lines and windows will be framed with mini LED lights. Town Square: Light canopy will be created over the town square lawn/ice rank. This canopy will be constructed of led lights and use non invasive methods of attachment. 2. 6 trees will be wrapped with swag style lighting, three on the north side of lawn and three on the south side. 3. Happy holiday's motif, 24' wide holiday motif will be installed at the west facing entrance of the town square loop. 4. Large grape cluster for new years drop will be provided for the city of Temecula. Installation and removal will be included for this separate event. All aspects of the lighting display will be incorporated to a photocell timing system to allow the lights to turn off at the requested time in order to deter from vandalism. EXHIBIT "B" PAYMENT RATES AND SCHEDULE \\CityoRemecula\Departntcnts\City Manager\STAFF REPORTS\Augusy $009\2009 Old Town Holidav Liehts Continct doe EXHIBIT "B" PAYMENT RATES AND SCHEDULE Contractor will bill the Agency 70% of the contract amount upon completion of the holiday light display installation. The lighting display shall be in place and fully operational from Friday, November 13, 2009. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. Contractor will bill the Agency 30% of the contract amount upon completion of the removal of the holiday light display which is scheduled for January 15, 2010 (weather permitting). Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. Cost Breakdown for 2009 Old Town Display Light poles 115 Light Poles 2 strands garland per light pole 230 total strands of pre lit garland $65 per strand 115 total photocell timers $12 per photocell $1380 for 115 photocells $16,330 total for lit garland on light poles Trees 15 medium to large trees on ftont street 20 strands of mini lights per tree $25 per strand $500 per tree $7500 total for 20 lit trees Columns 4 columns 12 strands per column 48 strands total $25 per strand $300 per column $1200 total for columns lee Rank Area Canopy 1500 ft of C7 bulbs $2.00 per foot 300 ft steel cable $100 steel cable 2 timers $20 per timer $3140 total for canopy lighting Happy Holidays Motif $1,500 New Years Grape Drop $1,500 Labor 5 day install $2,400 5 day removal $2,400 $4,800 total labor expense Other expenses Archways 2 archways 5 strands lit garland per archway 10 strands lit garland total $65 per strand lit garland $650 total for 2 archways Buildings Theater, Merc Building, Children's Museum, 3000 feet of large C7 bulbs $2.00 per foot 10 timers $20 per timer 400 feet of extensions $100 for extensions 2 80" lit wreaths $350 per wreath $7000 total cost for buildings Ice Rank Area Trees 6 trees at perimeter of grass 10 strands per tree 60 strands total $25 per strand 6 timers $20 per timer $270 per tree $1620 total for 6 trees at rank side $200 gas $200 additional insured $800 service calls $2000 replacement product $1200 storage $1000 unforeseen costs $5,400 total other expenses Product Totals $16,330 light poles $7,500 trees $1,200 columns $650 archways $7,000 buildings $1,620 ice rank trees $3,140 ice rank canopy $1,500 holiday motif $1,500 grape lighting $3,240 labor $5,200 other costs $48,880 Install and removal costs $8,000 TOTAL COST $58,640 Signed before Aug 20" TOTAL COST $49,995 N O U O L d M O L CL N 3 .Q v- O C a 0 0 0 00 H3 0 0 0 0 O 0 0 C) 0 N 0 0 C) OD 6c? 0 0 LO O 0 0 o OD (D 0 0 o O CO 0 0 o O r 0 0 o O r 0 0 Ln r (fl EA r 6-~ fF- Ef). to E!} O O a C14 O C) Lf) Nt 04 C) C) lqr 14, C) C) C) C) C) r r LO C) r N r U) O CL ~ cl) o Cl) O N N N L N N a m z a~ a rn a ca -a c w N M (1) 3 O _ O N E U1 .9 6 e O a) ca 00 ~ ~ Q, c~ 1- U . 1- 2 f- N CD . ` O N V N V ~ Q O O O d' CC GF} N O N C d C. x W 0 v Southern California Lighting Lighting zip the holidays one house at a time. Phone 951-402-2000 Fax 951-402-2000 support@socalxmas.com TO City of Temecula Old Town Temecula Lighting Display 951-694-6480 Quote INVOICE # 1118 DATE: JULY 30, 2009 Southern California Lighting is Licensed and Insured Southern California Lighting 28163 Lookout point. Suite 1 Menifee, CA 92585 SALESPERSON JOB PAYMENT TERMS DUE DATE Mathew Kronquist Holiday Light Installation Due 30 days upon receipt QTY DESCRIPTION UNIT PRICE LINE TOTAL 115 Light Standards with spiral wrap garland $142.00 $16330.00 1 Children's Museum $1400.00 $1400.00 1 Merc building $1000.00 $1000.00 1 Temecula Theater $8200.00 $8200.00 2 South Entrance Trees $1500.00 $3000.00 2 North Entrance Trees $800.00 $1600.00 2 Archways with stone columns $1000.00 $2000.00 1 Santa's Workshop $300.00 $300.00 1 Maintenance checks and projected service requirements $1800.00 $1800.00 15 Trees lining front street $500.00 $7500.00 6 Ice rank trees $270.00 $1620.00 1 Ice rank Canopy $3140.00 $3140.00 1 Gas, insurance, storage, etc $1860.00 $1860.00 Misc. work as warranted and approved by City Manager 1 or his designated representative $2000.00 $2000.00 SUBTOTAL $51,750.00 SALES TAX Carry over to TOTAL page 2 Make all checks payable to Southern California Lighting Lighting zip the holidays one hoarse at a time. Phone 951-402-2000 Fax 951-402-2000 support@socalxmas.com TO City of Temecula Old Town Temecula Lighting Display 951-694-6480 INVOICE # 1118 DA"rE: JULY 30, 2009 Southern California Lighting is Licensed and Insured Southern California Lighting 28163 Lookout point. Suite 1 Menifee, CA 92585 SALESPERSON JOB PAYMENT TERMS DUE DATE Mathew Kronquist Holiday Light Installation Due 30 days upon receipt QTY DESCRIPTION UNIT PRICE LINE TOTAL 1 New years grape motif $1500.00 $1500.00 1 New years event setup and removal $300.00 $300.00 1 Happy holidays motif $1500.00 $1500.00 1 Holiday motif install, removal, storage $500.00 $500.00 PAGE 2 1 1 $3,800.00 TOTAL - PAGE 1 City of Temecula will receive a 10% discount if contract is signed before $51,750.00 T OTAL August 20`I' 2009. TOTAL $55,550.00 TOTAL W/ 10% $49,995.00 DISCOUT Make all checks payable to Southern California Lighting AGENCY BUSINESS ITEM NO. 1 6 Approvals City Attorney Director of Finance City Manager TEMECULA REDEVELOPMENT AGENCY AGENDA REPORT TO: Executive Director/Agency Members FROM: Patrick Richardson, Director of Planning and Redevelopment DATE: August 11, 2009 SUBJECT: Owner Participation Agreement and Loan Agreement between BRIDGE SC LLC, a California limited liability company and the Temecula Redevelopment Agency for the development of 90 Affordable Housing Units PREPARED BY: Luke Watson, Management Analyst RECOMMENDATION: Adopt a resolution entitled: RESOLUTION NO. RDA 09- A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA APPROVING "AN OWNER PARTICIPATION AGREEMENTAND LOAN AGREEMENT" BETWEEN THEAGENCY AND BRIDGE SC LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND THE ACQUISITION OF PROPERTY BY THE AGENCY FROM BRIDGE SC LLC, A CALIFORNIA LIMITED LIABILITY CORPORATION BACKGROUND: The Summerhouse project was approved by Planning Commission Resolution number 06-42 on May 17, 2006 forthe development of 110 for-sale age restricted units. After receiving all necessary planning and building approvals construction began, but, due to the faltering economy, the owner could not complete the project and United Commercial Bank took title to the property through foreclosure. Of the 17 buildings approved for construction on the site, only the pool, recreation center, and one 8-unit residential structure were completed. In addition, one six- unit residential structure was partially completed and currently stands partially completed to this day. On May 18, 2009 BRIDGE Housing Corporation (BRIDGE) executed an Agreement for Purchase and Sale with United Commercial Bank for the acquisition of the entire property. At that time BRIDGE approached the Redevelopment Agency about the possibility of completing the project as an affordable housing development. Concurrently City staff introduced BRIDGE with the Orange County Rescue Mission (Rescue Mission) organization who had also approached the City and Agency about the possibility of transitional housing for families within the City of Temecula. Negotiations by all parties determined that the physical development of the site could, if finished as an affordable project, substantially remain the same as what was already approved for the project and what is already constructed or partially constructed. It was also agreed upon that, of the 110 units currently entitled for the site, BRIDGE would develop, own, and operate 90 units while the Rescue Mission would then develop, own, and operate the remaining 20 units. TRANSACTION STRUCTURE: The financing of the Summerhouse project will involve five (5) parties: BRIDGE Rescue Mission Temecula Redevelopment Agency County of Riverside California Tax Credit Allocation Committee The Redevelopment Agency and the County of Riverside will be financing the acquisition of the property which is scheduled for the close of escrow on September 24, 2009. The Agency will utilize Housing Set-Aside funds while the County will utilize Federal Neighborhood Stabilization (NSP) funds. The total purchase price and related fees for the property, as evidenced in Section 1.8 of the Agreement for Purchase and Sale between BRIDGE and United Commercial Bank is $5,000,000, $2,500,000 will come from the NSP Program via the County of Riverside and the remainder will come from the Redevelopment Agency. BRIDGE has applied for 9% tax credits and anticipates being awarded these tax credits on August 17, 2009. In order for BRIDGE to acquire these tax credits the California Tax Credit Allocation Committee requires that the Agency's OPA and County's Loan Agreement be approved by their governing bodies. After the tax credits have been awarded, BRIDGE will then be able to obtain the conventional construction loan necessary to complete the 90 units they are responsible for. It is anticipated that the construction of the 90 units will be complete by late summer 2010. Upon the completion of the 90 units by BRIDGE the Redevelopment Agency will then provide permanent financing to BRIDGE in the amount, not to exceed $1,284,000. This financing will be in the form of a loan that places affordability restrictions on BRIDGE's portion of the property for 55 years. The terms of this loan, in addition to the restrictions placed on the units by the California Tax Credit Allocation Committee, will restrict 88 units at the very-low and extremely-low levels, two units will be reserved as managers units. Upon the closing of escrow for the property between BRI DGE and United Commercial Bankthe 7.5 acre parcel will be split into two separate parcels. The larger of the two parcels will remain the property of BRIDGE, on which they will construct 90 affordable units, and the smaller of the two parcels will be conveyed to the Agency who will then immediately convey the parcel to the Rescue Mission. This structure provides for the Agency to legally enforce the terms of the Disposition and Development Agreement between the Redevelopment Agency and the Temecula Murrieta Rescue Mission, that is anticipated to be approved prior to the closing date of September 24, 2009. FISCAL IMPACT: The fiscal impact of this project will be a total of $3,784,000. This figure is broken down into a maximum of $2,500,000 for the acquisition of the property and a maximum of $1,284,000 funded at the completion of the project. The total of $3,784,000, or whatever portion of this figure utilized but not exceeding, will be converted to a permanent 55-year loan upon completion. The funds for this project are allocated in the Redevelopment Agency's fiscal year 2009-2010 Capital Improvement Program budget, account number 165.800.812.5804 (Affordable Housing Units). An additional $2,300,000, from the same account is planned for use in funding the Temecula Murrieta Rescue Mission component of the development for a total RDA Affordable Housing contribution of $6,084,000.00. ATTACHMENTS: Resolution. No. RDA 09- Owner Participation Agreement and Loan Agreement Initial Study RESOLUTION NO. RDA 09- A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA APPROVING "AN OWNER PARTICIPATION AGREEMENT AND LOAN AGREEMENT" BETWEEN THE AGENCY AND BRIDGE SC, LLC, AND THE ACQUISITION OF PROPERTY BY THE AGENCY FROM BRIDGE SC, LLC THE BOARD OF DIRECTORS OF THE TEMECULA REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The Board of Directors of the Redevelopment Agency of the City of Temecula hereby finds, determines and declares that: A. The Redevelopment Agency of the City of Temecula ("Agency") is a community redevelopment agency duly organized and existing under the Community Redevelopment Law ("CRL"), Health and Safety Code Sections 33000 et seq. and has been authorized to transact business and exercise the powers of a redevelopment agency pursuant to action of the City Council of the City of Temecula. B. On June 12, 1988, the Board of Supervisors of the County of Riverside adopted Ordinance No. 658 adopting and approving the "Redevelopment Plan for Riverside County Redevelopment Project No. 1988-1" (hereafter the "Plan") in accordance with the provisions of the CRL. On December 1, 1989, the City of Temecula was incorporated. The boundaries of the Project Area described in the Plan are entirely within the boundaries of the City of Temecula. On April 9, 1991, the City Council of the City of Temecula adopted Ordinances Nos. 91-08, 91-11, 91-14, and 91-15 establishing the Redevelopment Agency of the City of Temecula and transferring jurisdiction over the Plan from the County to the City. Pursuant to Ordinance Nos. 91-11 and 91-15, the City of Temecula and the Redevelopment Agency of the City of Temecula assumed jurisdiction over the Plan as of July 1, 1991. C. The Owner Participation Agreement and Loan Agreement ("Agreement") approved by this Resolution is intended to effectuate the Redevelopment Plan for the Agency's Redevelopment Project Area No. 1988-1, as amended. The specific purpose of the Agreement is to further the Agency's affordable housing goals in the City of Temecula (the "City") by: (i) providing a conditional commitment to Bridge SC, LLC to fund a permanent loan that will be used to pay part of the purchase price of land for a housing development consisting of, and a construction loan for the construction of certain affordable housing units (as designated in the Agreement) in the Project Area, and thereby increase the supply of affordable housing in the City (the "Project"), and (ii) providing the Agency with a portion of the land (which the Agency intends to transfer to the Temecula Murrieta Rescue Mission, Inc. for development of additional low income housing pursuant to a Disposition and Development Agreement that is being separately authorized and approved by the City and the Agency). D. The Agreement is also intended to effectuate the objectives of the Agency and the City of Temecula (the "City") in complying with their obligation to provide low income housing pursuant to the CRL and the goals of the City's Housing Element to the Temecula General Plan. The Developer's development of the Project and the fulfillment generally of these Agreements are in the best interest of the City and the welfare of its residents, and in accordance with the public purposes and provisions of applicable federal, state, and local laws and requirements. E. On August 11, 2009, the Agency considered the approval of the proposed Owner Participation and Loan Agreement with Developer at a public meeting and carefully considered the public comments made on the proposed Owner Participation and Loan Agreement. F. The development of the Project as required by the Agreement (and the acquisition of land for transfer to the Temecula Murrieta Rescue Mission, Inc. will assist in the elimination of blight in the Project Area as identified in the proceedings establishing the Project Area in that development of Project on the Site will: (1) establish development standards and the rehabilitation and improvement of obsolete, deteriorating, and inappropriate buildings and housing stock; (2) consolidate irregular parcels into a site appropriate for development; (3) encourage and provide for development of vacant properties in accordance with the Plan; and (4) preserve, improve, and expand housing opportunities for low income residents. G. The Agreement is consistent with the Redevelopment Plan and the Implementation Plan adopted by the Agency for the Project Area adopted by the Agency. H. The redevelopment of the land as provided in the Agreement is consistent with the City's General Plan. 1. The Agency Board has duly considered all terms and conditions of the proposed Agreement and believes that the Agreement is in the best interests of the Agency and City and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable State and local law requirements. z J. The Agreement pertains to and affects the ability of all parties to finance and carry out their statutory purposes and to accomplish the goals of the Plan and is intended to be a contract within the meaning of Government Code Section 53511. Section 2. The Board of Directors of the Redevelopment Agency of the City of Temecula hereby further finds, determines and declares that: A. Section 33334.2, et seq. of the CRL authorizes and directs the Agency to expend a certain percentage of all taxes which are allocated to the Agency pursuant to the CRL Section 33670 for the purposes of increasing, improving and preserving the community's supply of housing available at affordable housing costs to persons and families of low and very low income, including low income and very low income households. B. Pursuant to the CRL, the Agency has established a Low and Moderate Income Housing Fund (the "Housing Fund"). C. Pursuant to the CRL Section 33334.2(e), in carrying out its affordable housing activities, the Agency is authorized to provide subsidies to or for the benefit of persons and families of low and very low income to the extent those households cannot obtain housing at affordable costs on the open market. D. No other reasonable means of private or commercial financing for the low income units of the Project is reasonably available to the Agency or the Owner at the same level of affordability and quantity provided by the Agreement. Additionally, the Agency finds, based on substantial evidence in the record, that the Agency and the Owner have made a good faith attempt but have been unable to obtain commercial or private means of financing the units at the same level of affordability and quantity as provided for the Project. E. Developer proposes, with the assistance of the Agency, to develop the Project and upon completion to make available for the longest feasible period of time all of the housing units in the Project at affordable rents to low and very low income households. F. Pursuant to Sections 33132, 33133, and 33600 of the CRL, the Agency may accept financial or other assistance from any public or private source, for the Agency's activities, powers, and duties, and expend any funds so received for any of the purposes of the CRL. G. The expenditures from the Housing Fund as contemplated by the Agreements approved by this Resolution will directly and specifically increase, improve, and preserve the community's supply of low and very low income housing within the meaning of Health and Safety Code Section 33334.2 and will be of benefit to the Project Area by 3 providing new housing which restricted so as to be affordable for occupancy by low and very low income households. Section 3. The California Legislature declares in Health and Safety Code Section 37000, et seq., that new forms of cooperation with the private sector, such as leased housing, disposition of real property acquired through redevelopment, development approvals, and other forms of housing assistance may involve close participation with the private sector in meeting housing needs, without amounting to development, construction or acquisition of low rent housing projects as contemplated under Article XXXIV of the State Constitution and that the Agreement approved hereby is not subject to the provisions of said Article XXXIV. The Agency determines that the Project is not a "low-rent housing project," as defined in Section 1 of Article XXXIV of the California Constitution, because the Project is composed of urban dwellings, apartments, or other living accommodations, that meet the following criteria: (1) The Project is privately owned housing, receiving no ad valorem property tax exemption, other than exemptions granted pursuant to subdivision (f) or (g) of Section 214 of the Revenue and Taxation Code not fully reimbursed to all taxing entities; and (2) not more than forty nine percent (49%) of the dwellings, apartments, or other living accommodations of the Project are restricted by the Agreement to persons of low income. Section 4. The Agency hereby finds and determines that the Deed of Trust and Regulatory Agreement required pursuant to the Agreement may be subordinated to financing for the Project because an economically feasible alternative method of financing the Project on substantially comparable terms and conditions, but without subordination, is not reasonably available. Section 5. California Environmental Quality Act findings. A. The approval of the Agreement by the Agency constitutes an action by the Agency to implement its Implementation Plan adopted by the Agency that includes a Housing Assistance Plan by acquiring interests in housing units to assure they are affordable to persons of low and very low income. Therefore, the Project is exempt from the provisions of the California Environmental Quality Act pursuant to Section 15326 of the CEQA Guidelines (Title 14 of the California Code of Regulations). B. On May 17, 2006, the Planning Commission of the City of Temecula approved Planning Application No. PA05-0235 by Resolution No. 06-42 for a 110 unit senior condominium project. The proposed Project being funded by the proposed Owner Participation and Loan Agreement (the "Project") is the same project as approved by PA05-0235 except that the Project is restricted to rents affordable to persons and families of low and moderate income rather than to seniors. 4 C. As part of the process of approving PA05-235, a Mitigated Negative Declaration was prepared which analyzed the impact of PA05- 0235 upon the environment. A new Negative Declaration or a subsequent or supplement EIR for the Project is not required as the findings requiring further review under Sections 15162 or 15163 of the CEQA Guidelines are not present. An Initial Study of the Project was prepared by Staff to determine if further environmental review of the Project was required. D. The Agency Board further finds and determines that based on the Initial Study, the prior environmental review specified in the Initial Study and Mitigated Negative Declaration for PA05-0235 is sufficient and does not require further environmental review based on the following findings: (1) No substantial changes are proposed in the Project which will require major revisions of the previous Mitigated Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) No substantial changes have occurred with respect to the circumstances under which the Project is undertaken which will require major revisions of the previous Mitigated Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) No new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous Mitigated Negative Declaration was adopted, shows any of the following: (a) The project will effects not discussed in the Declarations; lave one or more significant previous Mitigated Negative (b) Significant effects previously examined will be substantially more severe than shown in the previous Mitigated Negative Declaration; (c) No mitigation measures or alternatives previously found not to be feasible would in fact be feasible, or would substantially reduce one or more significant effects of the Project; or (d) No mitigation measures or alternatives which are considerably different from those analyzed in the previous Mitigated Negative Declaration would substantially reduce one or more significant effects on the environment. E. The Mitigation Monitoring Program for PA05-0235 shall be implemented for the Project. Section 6. The Board of Directors of the Redevelopment Agency of the City of Temecula hereby approves that certain agreement entitled "Owner Participation and Loan Agreement" by and between Temecula Redevelopment Agency and Bridge SC, LLC, ("Agreement") with such changes in such document as may be mutually agreed upon by the Developer and the Agency Executive Director as is in substantial conformance with the form of such Agreement on file in the Office of the Agency Secretary. The Chairperson of the Agency is hereby authorized to execute the Agreement on behalf of the Agency in said form. A copy of the final Agreement when executed by the Agency Chairperson shall be placed on file in the Office of the Secretary of the Agency. Section 7. The Executive Director of the Agency (or his designee), is hereby authorized, on behalf of the Agency, to take all actions necessary and appropriate to carry out and implement the Agreement and to administer the Agency's obligations, responsibilities and duties to be performed under the Agreement and related documents, including, but not limited to, the approval and execution on behalf of the Agency of the Promissory Note, Deed of Trust, Regulatory Agreement, acceptances, escrow instructions, certificates of completion and such other implementing agreements and documents as contemplated or described in the Agreement. Section 8. The Secretary of the Agency shall certify the adoption of this Resolution. 6 PASSED, APPROVED, AND ADOPTED by the Board of Directors of the Temecula Redevelopment Agency of the City of Temecula this 11 th day of August, 2009. ,Chairperson ATTEST: Susan W. Jones, MMC City Clerk/Board Secretary [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA } I, Susan W. Jones, MMC, City Clerk/Board Secretary of the Temecula Redevelopment Agency of the City of Temecula, do hereby certify that the foregoing Resolution No. RDA 09- was duly and regularly adopted by the Board of Directors of the Temecula Redevelopment Agency of the City of Temecula at a meeting thereof held on the 11th day of August, 2009, by the following vote: AYES: BOARD MEMBERS: NOES: BOARD MEMBERS: ABSENT: BOARD MEMBERS: ABSTAIN: BOARD MEMBERS: Susan W. Jones, MMC City Clerk/Board Secretary 8 OWNER PARTICIPATION AND LOAN AGREEMENT between TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic and BRIDGE SC, LLC, a California limited liability company 1 1087-0009\1 155216v5.doe -I- OWNER PARTICIPATION AND LOAN AGREEMENT THIS OWNER PARTICIPATION AND LOAN AGREEMENT ("Agreement") is dated as of , 2009, and is entered into by and between the TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and BRIDGE SC, LLC, a California limited liability company ("Developer"). ARTICLE 1 DEFINITIONS 1.1 Definitions As used hereinafter in this Agreement, including the attachments hereto, the following terms shall have the following respective meanings: 1.1.1 Affordable Rent shall have the meaning set forth in California Health and Safety Code Section 50053(b) and Title 25 of the California Code of Regulations Section 6922. 1. 1.2 Agency shall have the meaning set forth in Section 2.2. 1. 1.3 Agency Loan shall mean the loan described in Section 7.1 of this Agreement 1. 1.4 Agency Note shall mean the promissory note in favor of Agency evidencing the Agency Loan, in the form attached hereto as Attachment No. 7. 1.1.5 Agency Regulatory Agreement shall mean the Regulatory Agreement to be executed by the Parties pursuant to Section 6.7, in the form attached hereto as Attachment No. 6. 1. 1.6 Agency Representatives/City Representatives, shall mean and include all of the respective predecessors, successors, assigns, agents, officials, employees, members, independent contractors, affiliates, principals, officers, directors, attorneys, accountants, representatives, staff, council members, board members, and planning commissioners of Agency or City, as the case may be, and of each of them. 1. 1.7 Agency Trust Deed or Agency Deed of Trust shall mean the deed of trust in favor of Agency encumbering the Project Site and securing the Agency Loan, in the form attached hereto as Attachment No. 8. 1.1.8 Approved Title Exceptions shall have the meaning set forth in Section 4.2.2. 1.1.9 Agency Title Policies shall have the meanings set forth in Section 4.3. 1.1.10 Area-wide Median Income shall mean the median family income (adjusted for family size) for the Riverside County area as annually published by the United States Department of Housing and Urban Development ("HUD") pursuant to Section 8 of the United 1 1087-0009\1 155216v5.doe -2- States Housing Act of 1937, as amended, as provided in Title 25 of the California Regulations Section 6932. If HUD ceases annually to publish median incomes, the Parties will agree upon an adequate substitute manner for determining Area-wide Median Income. 1.1.11 California Community Redevelopment Law shall mean Division 24, Part 1 of the Health and Safety Code of the State of California, beginning at Section 33000. 1.1.12 Certificate of Completion shall mean the certificate issued by the Agency following completion of the Improvements pursuant to Section 5.15 hereof, in the form attached hereto as Attachment No. 5. 1.1.13 City shall mean the City of Temecula, California, a municipal corporation, organized and existing under the Laws of the State of California. 1.1.14 Closing shall be no later than September 24, 2009, and shall mean the date on which the Agency Deed of Trust has been recorded pursuant to recording instructions delivered to Escrow by Agency Counsel. 1.1.15 Completion shall mean: (i) the issuance of a final Certificate of Occupancy by the City for the Improvements; and (ii) the recordation of a Certificate of Completion executed by the Agency. Section 5.2.1. 1.1.16 Concept Design Drawings shall mean the drawings described in 1.1.17 Construction Loan shall mean the Construction Loan described in Section 7.1 to be made by a Qualified Lender. 1.1.18 Construction Loan Documents shall mean the documents evidencing the Construction Loan. 1.1.19 Control shall mean, for purposes of Section 2.5 of this Agreement, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a corporation, partnership, joint venture, trust, or other association. For the purposes of this Agreement, the sole member or manager of a limited liability company has the ability to Control it, the managing general partner of a limited partnership has the ability to Control it, and a corporation a majority of whose board of directors is appointed by another entity has the ability to Control such entity. 1. 1.20 Date of Agreement shall mean the date set forth in the introductory paragraph of this Agreement. 1.1.21 Developer shall have the meaning set forth in Section 2.3. 1. 1.22 Development shall mean the construction of the Improvements, and operation of an affordable housing project on the Project Site. 1 1087-0009\1 155216v5.doe -3- 1. 1.23 Development Plan shall mean and include such preliminary construction drawings and specifications, grading plans, landscape plans, site development plans, plot plans, architectural renderings and elevations, material specifications, parking plans, and other plans and documents as are required to be submitted to the City for the Development. 1. 1.24 Environmental Condition means any Hazardous Substance that exists prior to or after the Closing Date, with respect to the air, land, soil, surface, subsurface strata, surface water, ground water, storm water or sediments, on under or above the Project Site. 1. 1.25 Environmental Laws shall mean all federal, state and local Laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene Laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Project Site), occupational or Environmental Conditions on, under, or about the Project Site, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) [42 USCS § 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS § 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 USCS § 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 USCS § 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USCS § 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USCS § 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 USCS § 6901 et seq.]; the Clean Air Act [42 USCS § 7401 et seq.]; the Safe Drinking Water Act [42 USCS 300f et seq.]; the Solid Waste Disposal Act [42 USCS 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USCS § 1201 et seq.]; the Emergency Planning and Community Right to Know Act [42 USCS § 11001 et seq.]; the Occupational Safety and Health Act [29 USCS § 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C § 25280 et seq]; the California Hazardous Substances Account Act [H & S C § 25300 et seq.]; the California Hazardous Waste Control Act [H & S C § 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C § 24249.5 et seq.]; the Porter-Cologne Water Quality Act [Wat C § 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local Law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene Laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Project Site), or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. 1. 1.26 Environmental Liabilities and Obligations means any known or unknown claim, liability, obligation (including, without limitation, any obligation to monitor, test, sample, report to governmental authorities, Remediate or clean up, or any obligation under a permit or order), expense, contribution or indemnity obligation (whether under any Environmental Law or any other statute, common law or in equity), cost, Remediation Costs or any other damage, liability or loss (including without limitation, reasonable attorneys' and consultants' fees), fine or penalty, whether incurred by a Party hereto or claimed by any third party (including, without limitation, any governmental entity), arising out of or relating to any actual, alleged or threatened 11087-0009\1155216v5.doc -4- discharge, release, emission, spill or migration into the environment, or any such discharge, release, disposal, emission, spill, migration, or Remediation of any Hazardous Substance or any Environmental Condition. 1. 1.27 Escrow shall have the meaning set forth in Section 4.4. 1. 1.28 Escrow Agent shall have the meaning set forth in Section 4.4. 1. 1.29 Exceptions shall mean all reservations, liens, encumbrances, qualifications, covenants, conditions, restrictions, leases, easements, rights of way, or other like matters affecting the Project Site, and all matters or states of fact reflected on or arising out of any tentative or final parcel map for the Site. 1. 1.30 Executive Director shall mean the Executive Director of the Agency, or his or her designee. 1. 1.31 Hazardous Substances shall include, without limitation, petroleum or refined petroleum products, flammable explosives, radioactive materials, asbestos, polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, substances described in California Civil Code Section 2929.5(e)(2), as it now exists or as subsequently amended, those substances included within the definitions of hazardous substance, hazardous waste, hazardous material, toxic substance, solid waste, or pollutant or contaminant in any Environmental Law, pollutants, contaminants, hazardous wastes, toxic substances or related materials, but excluding any substance as typically used in residential development and operation. 1. 1.32 Holders shall mean the mortgagee of record of any mortgage, beneficiary of a deed of trust or other security interest, the lessor under a financing leaseback, or grantee under any form of financing conveyance on or affecting the Project Site or the Improvements or any portion of the Improvements, and any successor thereto or assignee thereof (including any purchaser at any foreclosure sale or by deed-in-lien of foreclosure). 1. 1.33 Improvements shall mean and include all grading to be done on the Project Site, as well as all buildings, structures, fixtures, excavation, parking, landscaping, and other work, construction, rehabilitation, alterations and improvements of whatever character to be done by Developer on, around, under or over the Project Site pursuant to this Agreement, and all off- site improvements, as more particularly described in the Scope of Development. 1. 1.34 Law or Laws shall mean any present or future law, statute, code, rule, regulation, ordinance, writ, injunction, order, decree, ruling, court decision, condition of approval or authorization, or other legally binding condition or requirement of any governmental authority (including but not limited to federal, state and local authorities) or quasi-governmental body having or exercising jurisdiction or control over Developer, Agency, or the Project Site, or any portion thereof. The term Law shall specifically include, but not be limited to, the Community Redevelopment Law of the State of California. 1.1.35 Losses and Liabilities shall mean and include all claims, demands, causes of action, liabilities, losses, damages, judgments, injuries, expenses (including, without 11087-0009\1155216v5.doc -5- limitation, attorneys' fees and costs incurred by the indemnified party for legal counsel reasonably acceptable to it) charges, penalties or costs of whatever character, nature and kind, whether to property or to person, and whether by direct or derivative action, known or unknown, suspected or unsuspected, latent or patent, existing or contingent. 1. 1.36 Lower Income Households shall have the meaning set forth in the Regulatory Agreement attached hereto as Attachment No. 6. 1. 1.37 Ownership Transfer/Transferee shall mean and include any voluntary or involuntary transfer, sale, assignment, lease, sublease, license, franchise, concession, operating agreement, gift, hypothecation, mortgage, pledge or encumbrance, or the like to any person or entity ("Transferee"), or any change in Control of Developer. 1.1.38 Payment Date shall mean the earlier of July 1, 2012 or the first July after the permanent financing for the Development has closed, and each anniversary thereof applicable 1. 1.39 Party, Parties shall mean one or both of Agency and Developer, as 1. 1.40 Permanent Loan shall mean a permanent loan from a Qualified Lender which is sufficient, together with the Agency Loan and other sources of financing, to provide permanent financing for the Development. 1. 1.41 Person shall mean an individual, corporation, partnership, limited liability company, joint venture, association, firm, joint stock company, trust, unincorporated association or other entity. 1. 1.42 Prevailing, Wage shall have the meaning set forth in Section 1720 of the California Labor Code. 1. 1.43 Project Area shall mean the Project Area described in the Redevelopment Plan. 1. 1.44 Project Site shall mean the portion of the Site to be developed by Developer pursuant to this Agreement and which is described as the "Project Site" on the Site Map attached hereto as Attachment No. 2. 1. 1.45 Property shall mean the Project Site and the Improvements. 1. 1.46 Qualified Lender shall mean a lender which is in the business of financing the size and type of development contemplated hereunder and which, in the reasonable opinion of Agency, has a sufficient net worth and liquidity position to meet the contemplated financing commitment. 1. 1.47 Redevelopment Plan shall mean the Redevelopment Plan for Riverside County Redevelopment Project No. 1988-1, as transferred from the County of Riverside to the City of Temecula and the Agency. 1 1087-0009\1 155216v5.doe -6- 1. 1.48 Remediation and Remediate shall mean actions taken to correct or remediate any Environmental Condition, including but not limited to the removal and disposal of any Hazardous Substance, and to implement the terms of a remediation plan and any amendments thereof which sets forth the actions to be taken to effect any necessary remediation or removal of a single Environmental Condition or a group of related and reasonably proximate Environmental Conditions as necessary to bring a property into compliance with the Environmental Laws, or any agreement applicable to the Project Site, and, if appropriate, approved by any applicable governmental entity. 1. 1.49 Remediation Costs means the amounts expended for Remediation or response to an Environmental Condition, and amounts expended to determine the extent of the Environmental Condition and to determine the appropriate means of Remediation or response, including any investigation, testing, sampling, monitoring or assessment expenses, attorney's or environmental professional's fees, and the costs of surveys, audits or analyses. "Remediation Costs" also includes the premium for environmental cost containment and environmental liability insurance, to the extent such insurance is obtained by Developer in form and with coverage limits acceptable to both Parties. 1. 1.50 Schedule of Performance shall mean the Schedule of Performance attached hereto as Attachment No. 3 and incorporated herein by reference, setting out the dates and time periods by which certain obligations set forth in this Agreement must be met. 1.1.51 Scope of Development shall mean the Scope of Development attached hereto as Attachment No. 4 and incorporated by reference herein, which describes the Improvements to be constructed by Developer pursuant to the terms and conditions of this Agreement. 1.1.52 Site shall mean the entirety of the land and improvements legally described in Attachment No. 1 hereto and depicted on the "Site Map" which is attached hereto as Attachment No. 2, which is comprised of the Project Site and the TMRM Site. 1.1.53 Title Company shall mean First American Title Insurance Company, 135 Main Street, Suite 1200, San Francisco, CA 94105, Attention: Ms. Heather Kucala. 1. 1.54 Title Exceptions shall mean exceptions [AGENCY MUST REVIEW AND APPROVE/DISAPPROVE. NOTE: SELLER TO REMOVE 2, 3, 9-11, AND 26-67] in title report issued by First American Title Insurance Company dated July 16, 2009 (Order No. NCS-387174-SA1). 1.1.55 TMRM shall mean the Temecula Murietta Rescue Mission, a California non-profit corporation. 1. 1.56 TMRM Site shall mean the portion of the Site described as the "TMRM Site" on the Site Map attached hereto as Attachment No. 2. It is contemplated that although the entire Site will be acquired by the Developer, the Site will be subdivided into the Project Site and the TMRM Site concurrently with the closing, and the TMRM Site shall be conveyed by Developer to the Agency concurrently with the closing. 11087-0009\1155216v5.doc -7- ARTICLE 2 PURPOSE OF AGREEMENT; PARTIES; REPRESENTATIONS AND WARRANTIES 2.1 Purpose of the Agreement The purpose of this Agreement is to cause the development of housing on the Project Site that will be affordable to Lower Income Households for at least 55 years after it is completed. Pursuant to this Agreement, Developer will cause the completion of ninety (90) residential units, forty-four (44) of which shall be restricted by the Agency to use, occupancy, operation, maintenance, and rental/lease at Affordable Rents as set forth in the Regulatory Agreement attached hereto as Attachment No. 6. Pursuant to, in accordance with, and upon satisfaction of the conditions of this Agreement, Agency will provide a loan for the Development. The redevelopment of the Project Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City and the health, safety and welfare of its residents and in accord with the public purposes and provisions of applicable federal, state and local Laws, including the elimination of present blighting conditions in the Project Area, and the jurisdiction and powers of Agency as both a housing authority and a redevelopment agency. Although the Site is not within the Project Area, the redevelopment of the Project Site will materially benefit the Project Area. This Agreement is entered into for the purpose of developing the Project Site with housing at Affordable Rents in accordance with the Regulatory Agreement attached hereto as Attachment No. 6, and not for speculation in landholding. This Agreement is subject to the provisions of the Redevelopment Plan, which is on file at Agency's office and is incorporated herein by reference. 2.2 Agency Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing pursuant to Part 1.7 of Division 24 of the Health and Safety Code, Section 34100 et seq. of the State of California. The principal office of Agency is located at 43200 Business Park Drive, Temecula, California 92590. The term "Agency" includes any assignee or successor to Agency's rights, powers and responsibilities under this Agreement. 2.3 Developer Developer is Bridge SC, LLC, a California limited liability company, having its principal office at 345 Spear Street, Suite 700, San Francisco, CA 94105. The term "Developer" includes any nominee, assignee or successor to Developer's rights, powers and responsibilities hereunder that is expressly permitted under Section 2.5. All of the terms, covenants, and conditions of this Agreement shall be binding on such successors and assigns of Developer. 11087-0009\1155216v5.doc -8- 2.4 Developer Representations Developer, acknowledging that each provision in this Section 2.4 is material and is being relied upon by Agency, represents and warrants the following to Agency for the purpose of inducing Agency to enter into this Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof and as of the Disbursement of the Agency Loan pursuant to this Agreement: (a) Developer has the legal power, right and authority to enter into this Agreement and the instruments and documents referenced herein, to consummate the transactions contemplated hereby, to take any steps or actions contemplated hereby, and to perform its obligations hereunder. (b) All requisite action has been taken by Developer and all requisite consents have been obtained by Developer in connection with entering into this Agreement and the instruments and documents referenced herein, and the consummation of the transactions contemplated hereby. (c) To the best knowledge of Developer, the execution, delivery and performance by Developer of this Agreement will not violate any provision of Law, or any indenture, agreement or other instrument to which Developer is a party or by which Developer or any of its properties is bound. (d) This Agreement is, and all agreements, instruments and documents to be executed by Developer pursuant to this Agreement shall be, duly executed by and are, or shall be, valid and legally binding upon Developer and enforceable in accordance with their respective terms, and the execution and delivery thereof shall not, with due notice or the passage of time, constitute a default under or violate the terms of any indenture, agreement or other instrument to which Developer is a party. 2.5 Prohibition Against Transfer 2.5.1 Developer represents that its undertakings pursuant to this Agreement are for the purpose of redevelopment of the Project Site with housing affordable to Lower Income Households, and not for speculation in land holding. Developer further recognizes that, in view of. (a) the importance of the redevelopment of the Project Site to the general welfare of the community; (b) the public assistance that has been made available by Law and by Agency for the purpose of making such redevelopment possible; and (c) the fact that a change in ownership or control of Developer or of a substantial part thereof, or any other act or transaction involving or resulting in a significant change in ownership or control of Developer or the degree thereof, is for practical purposes a transfer or disposition of the property then owned by Developer; 11087-0009\1155216v5.doc -9- (d) the qualifications and identity of Developer are of particular concern to Agency and the City. It is because of those qualifications and identity that Agency has entered into this Agreement with Developer. Consequently, no voluntary or involuntary successor in interest of Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. Except where an Ownership Transfer is specifically permitted by this Agreement, Developer shall not assign all or any part of this Agreement or any interest in the Project Site without the prior written approval of Agency. 2.5.2 Prior to Completion, Developer shall not, except as permitted by this Agreement, effect any change in Control of Developer; assign or attempt to assign this Agreement or any rights herein; or make any total or partial sale, transfer, or conveyance of the whole or any part of the Project Site or the buildings or structures now existing or to be constructed thereon without prior written approval by Agency in its sole and absolute discretion; after Completion, any such changes, assignments, transfers or conveyances shall still require the written consent of the Agency, but such consent shall not be unreasonably withheld. Any such approval shall not constitute a release of Developer or its obligations hereunder. 2.5.3 This Section 2.5 shall not prevent or prohibit: of the Proj ect Site; (a) the granting of easements or permits to facilitate the development (b) the granting of any security interest in the Site or any other financing arrangement for the purposes of securing funds to be used for financing the construction of the Improvements on the Project Site, as otherwise permitted by this Agreement; (c) the leasing of the residential units in accordance with this Agreement; (d) any transfer or change in Control of Developer, whereby the Ownership Transferee is an entity Controlled directly or indirectly by BRIDGE Housing Corporation (including, for example, a limited partnership in which Developer is the sole general partner); (e) any transfer or change in Control of Developer whereby a limited partner is admitted, removed, or withdrawn pursuant to Developer's limited partnership agreement; (f) any other transfer or change in Control of Developer allowed under Developer's limited partnership agreement, as amended, provided the limited partnership agreement shall have been approved in writing by the Executive Director; (g) any change in personnel of Developer who have no ownership interest in Developer; or 11087-0009\1155216v5.doc -10- (h) recordation of regulatory agreements and restrictive covenants required by governmental agencies which provide financial assistance to the Development. Transfers described under this Section 2.5.3 shall not require the consent of the Agency, but Developer shall notify the Agency of transfers described in subsections (d) - (f). 2.5.4 (a) Any proposed transferee of Developer, approved by Agency, shall have the qualifications and financial responsibility necessary and adequate, as may be reasonably determined by Agency, to fulfill the obligations undertaken in this Agreement by the transferor. (b) Any proposed transferee, by instrument in writing satisfactory to Agency and in form recordable among the land records of Riverside County, for itself and its successors and assigns, and for the benefit of Agency, shall expressly assume all of the obligations of Developer under this Agreement and shall agree to be subject to all the conditions and restrictions to which Developer is subject. All relevant instruments and other legal documents proposed to effect any such transfer shall be submitted to Agency, and if the transferee is approved by Agency, its approval shall be presented to Developer in writing. (c) The provisions of this subsection 2.5.4 shall not apply to any Transferee authorized by subsection 2.5.3. 2.5.5 If, prior to the issuance of the Certificate of Completion, there is any Ownership Transfer of Developer not approved by Agency or otherwise permitted as set forth in this Agreement, Agency may take such action as Agency may deem appropriate to assure Agency that the Improvements will be completed, including without limiting the generality of the foregoing, terminating this Agreement and exercising any rights set forth in this Agreement; provided, however, that Agency shall not terminate this Agreement without first providing Developer written notice and opportunity to cure pursuant to the provisions of Section 8.1. In the absence of specific written agreement by Agency, no such sale, transfer, conveyance or assignment of the Site shall be deemed to relieve Developer from any obligations under this Agreement. ARTICLE 3 SPECIAL PROVISIONS 3.1 Schedule of Performance Subject to the provisions of Section 9.3 (Force Majeure), Developer and Agency shall perform their obligations hereunder within the times specified in the Schedule of Performance, or such reasonable extension of those dates as may be granted by each Party to the other in writing. The Schedule of Performance is subject to revision from time to time as and if mutually agreed upon in writing between Developer and Agency. 3.2 DeleLyation to Executive Director 3.2.1 The Executive Director is hereby authorized to take any and all steps necessary to complete the acquisition of the Site and conveyance of the TMRM Site to the Agency and to implement the provisions of this Agreement. 11087-0009\1155216v5.doc -11- 3.2.2 The Executive Director is further authorized, on behalf of Agency, to: (i) approve extensions of time hereunder, so long as the cumulative total of such extensions does not exceed three hundred and sixty five (365) days; (ii) approve, waive or make comments in connection with Developer's submissions described in Article 5; and (iii) waive any of Agency's or City's conditions or requirements to the Close of Escrow. Any such modifications or extensions shall be incorporated into the Schedule of Performance and this Agreement without need for an amendment of this Agreement. No action of the Executive Director pursuant to this Section shall be effective unless it is express and in writing. 3.3 Construction Contract Within the time established therefor in the Schedule of Performance, a Developer shall enter into a construction contract with a general contractor for the construction of the Improvements (the "Contractor"). The Construction Contract shall obligate the Contractor to construct the Improvements on the Project Site for a stipulated sum or a guaranteed maximum price that is within the amount of available financing as shown by the evidence of financing provided pursuant to Section 3.3. The Construction Contract shall provide for completion of the Improvements on a schedule consistent with the Schedule of Performance. 3.3.1 Payment and Performance Bonds. Within the time established therefor in the Schedule of Performance, Developer shall cause Contractor to provide payment and performance bonds, a letter of credit, or other security naming the Agency as a beneficiary, insured, or loss payee, as applicable. ARTICLE 4 CLOSING OF THE AGENCY LOAN 4.1 Conditions Precedent. The obligation of Agency to make the Agency Loan to Developer is subject to the following conditions precedent: (a) Developer shall have delivered the fully executed Agency Note to Agency, and shall have deposited the executed and acknowledged Agency Trust Deed, Agency Regulatory Agreement, a Notice of Affordability Restrictions (in statutory form acceptable to the Agency), and the TMRM Site grant deed (executed by Developer in favor of Agency) into Escrow; (b) Developer shall have submitted and the Executive Director have approved the proof of insurance required by Section 5.9; (c) Financing from the County of Riverside (the "County") in an amount sufficient to enable Developer to purchase the Site (the "County Loan") shall have closed (which may close concurrently with the Agency Loan), and the County Loan documents (including a deed of trust encumbering only the Project Site and not the TMRM Site, and which is subordinate to the deed of trust securing the Agency Loan encumbering the Project Site) shall have been approved by the Agency; 11087-0009\1155216v5.doc -12- (d) The Executive Director, in his or her reasonable discretion, is satisfied that the Development is financially feasible; (e) The zoning of the Project Site and the City's General Plan shall be such as to permit development and construction of Improvements thereon in accordance with the provisions of this Agreement and the use, operation and maintenance of such improvements in accordance with the provisions of this Agreement; (f) The Title Company has committed to issue the Agency Title Policies, in accordance with Section 4.3 below; (g) Developer shall have timely performed all of the obligations required by the terms of this Agreement to be performed by Developer prior to the closing of the Loan; (h) All representations and warranties made by Developer to Agency in this Agreement shall be true and correct as of the Close of Escrow; (i) Developer shall not be in default under this Agreement; and 0) All documents and approvals necessary to subdivide the Site into the Project Site and the TMRM Site shall have been issued, executed, delivered and recorded, as appropriate. 4.2 Condition of Title 4.2.1 Upon the opening of escrow, the Developer shall order a preliminary report from Title Company for the Site. The Developer shall also request two legible copies of each instrument identified as exceptions on the preliminary report. Upon receipt of the foregoing, the Developer shall deliver these instruments and the preliminary report, including the copies of all exception documents to Agency. The preliminary report and the copies of the instruments noted as exceptions therein, are referred to herein as the "Title Documents." Developer shall cause the Title Company to deliver the Title Documents to Developer within ten (10) days after the opening of Escrow. 4.2.2 It shall be a condition to the Close of Escrow and the Agency Loan that the Agency Deed of Trust and Regulatory Agreement shall subject only to the following title exceptions (the "Approved Title Exceptions"): delinquent; (a) A lien to secure payment of real estate taxes, not due or payable or (b) The covenants set forth in the Agency Trust Deed, the Agency Regulatory Agreement and the Notice of Affordability Restrictions; and approved by Agency. (c) The title exceptions disclosed by the Title Documents and 11087-0009\1155216v5.doc -13- 4.3 Agency Title Insurance As a condition to the Close of Escrow, Escrow Agent shall cause the Title Company to issue and deliver, at Developer's cost, to Agency, an CLTA Lender's policy of title insurance in the amount of the Agency Loan, insuring that the Agency Trust Deed and Agency Regulatory Agreement are recorded against the Project Site in the order required by Section 4.6.7 and an owner's policy or "binder policy" insuring the Agency (or the Agency's designee, which may be the Temecula Murrieta Rescue Mission (the "Agency Title Policies"). 4.4 Escrow Developer has opened escrow number NCS-387174-SA1 (the "Escrow") for Developer's purchase of the Property, the Agency Loan, the County Loan and the Agency's later acquisition of the TMRM Site, with First American Title Insurance Company, 135 Main Street, Suite 1200, San Francisco, CA 94105, Attention: Ms. Heather Kucala (the "Escrow Agent"). This Agreement constitutes the joint basic escrow instructions of Agency and Developer for the Agency Loan and the Agency's acquisition of the TMRM Site, and a copy of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. Agency and Developer shall provide such additional or revised escrow instructions as shall be necessary for and consistent with this Agreement. In the event of any conflict between the provisions of this Agreement and the "standard form" escrow instructions of Escrow Agent, the provisions of this Agreement shall control. Developer shall pay all Escrow fees and charges and all recording fees. 4.4.1 Deposits into Escrow (a) Agency shall timely and properly execute, acknowledge and deliver into Escrow, the Agency Regulatory Agreement, the Notice of Affordability Restrictions, Request for Notice, the Certificate of Acceptance for the grant deed executed by the Developer in favor of the Agency for the TMRM Site, and an assignment and assumption agreement with Developer that is reasonably acceptable to Agency and Developer in which Developer assigns to Agency and Agency assumes from Developer a $1,500,000 unsecured promissory note executed by Developer in favor of the County evidencing a purchase money loan by the County to the Developer for the Developer's acquisition of the TMRM Site (as part of the Site), which is also executed by the County and which must provide for the release of liability of both Developer and Agency upon the Agency's conveyance of the TMRM Site to TMRM and TMRM's assumption of such promissory note. (b) Developer shall timely and properly execute, acknowledge and deliver into Escrow the Agency Regulatory Agreement, Agency Note, Agency Trust Deed, the Notice of Affordability Restrictions, and the grant deed to the Agency for the TMRM Site. (c) The Escrow Agent is authorized to: (i) Pay, and charge Developer for any fees, charges and costs payable under this Subsection. Before such payments or charges are made, the Escrow Agent shall notify Developer in writing of the fees, charges and costs necessary to reconvey monetary liens in order to close the Escrow. 11087-0009\1155216v5.doc -14- (ii) Disburse funds to the respective Party due the same and deliver documents to the parties entitled thereto when the conditions of this Escrow have been fulfilled by Agency and Developer. (iii) Record any instruments delivered through this Escrow in accordance with the terms and provisions of this Agreement. (d) All funds received in the Escrow shall be deposited by the Escrow Agent in a separate interest-earning account or accounts with any state or national bank doing business in the State of California and reasonably approved by Developer; interest so earned shall be payable to Developer. All disbursements shall be made by check of the Escrow Agent. (e) If the Escrow is not in condition to close on or before the Closing Date, the Party who then shall have fully performed the acts to be performed may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent (or the demanding Party) shall have mailed copies of such demand to the other Party or Parties at the address of its or their principal place or places of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other Party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents until instructed by a mutual agreement of the Parties or by a court of competent jurisdiction. If no such demands are made, the Escrow shall be closed as soon as possible. (f) If objections are raised as set forth above, the Escrow Agent shall not be obligated to return any such money, papers or documents except upon the written instructions of Agency and Developer or until the Party entitled thereto has been determined by a final decision of a court of competent jurisdiction. If no such objections are made within the ten (10) day period, the Escrow Agent shall immediately return the demanded money, papers and documents; and the escrow cancellation fees shall be paid by the non-demanding Party. (g) All communications from the Escrow Agent, Agency, or Developer shall be directed to the addresses and in the manner established in Section 9.1 of this Agreement for notices, demands and communications between Agency and Developer. (h) The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it pursuant to this Agreement. 4.4.2 Close of Escrow For purposes of this Agreement, "Close of Escrow" shall be defined as the date that the Agency Regulatory Agreement, Agency Trust Deed, Notice of Affordability Restrictions and Requests for Notice, the deed conveying the TMRM Site from the Developer to the Agency with Certificate of Acceptance ("TMRM Site Deed") are recorded in the Office of the County Recorder for Riverside County. The Close of Escrow shall occur no later than the Closing Date. 11087-0009\1155216v5.doc -15 4.4.3 Recordation (a) Upon the Close of Escrow and Developer's acquisition of the Site, the Escrow Agent shall cause the parcel map for the subdivision of the Site into the Project Site and the TMRM Site, the Agency Regulatory Agreement, the Notice of Affordability Restrictions, Agency Trust Deed, the Request for Notice (for the County Loan secured by the Project Site) and the TMRM Site grant deed in favor of the Agency, to be recorded among the land records in the Official Records of Riverside County. (b) The Agency Trust Deed, Regulatory Agreement and Notice of Affordability Restrictions shall be recorded against the Project Site prior to the deed of trust securing the County Loan ("County Deed of Trust") that encumbers the Project Site and the County Deed of Trust will not encumber the TMRM Site; however, if requested by the County, the Agency's right of first offer and purchase option in the Regulatory Agreement shall be subordinated to the County Deed of Trust securing the County Loan by a reasonable subordination agreement executed by the Agency's Executive Director. (c) Escrow Agent shall provide both Agency and Developer with conformed copies of all recorded documents. 4.5 Relocation 4.5.1 The Parties acknowledge and agree that the Site is not occupied, and there are no rights to use, possess, or occupy the Site by any third party as provided in Section 4.6.3. In such regard, the Relocation Laws will not be triggered by Agency's Loan or by the development of the Site. 4.5.2 The term "Relocation" or "Relocation Laws" shall mean, to the extent and if applicable, any applicable federal, state and local laws relating to and including without limitation any and all relocation obligations set forth in (i) the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 ("URA"), 42 U.S.C. 4201465 5, and the implementing regulation thereto set forth in 49 CFR Part 24, (ii) Government Code Section 7260, et seq. and the implementing regulations thereto in Title 25, Section 6000, et seq. of the Code of Regulations (together, "CRAL"), and (iii) any other applicable federal, state or local enactment, regulation or practice providing for relocation assistance, benefits, or compensation for property interests (including without limitation goodwill and furnishings, fixtures and equipment, and moving expenses), and (iv) any federal law or regulation prohibiting payment of relocation benefits or assistance to persons ineligible for relocation benefits or assistance. ARTICLE 5 DEVELOPMENT OF THE SITE 5.1 Scope of Development Developer shall improve the Project Site in the manner described in the Scope of Development. Developer shall begin and thereafter diligently prosecute to completion the Improvements to the Project Site as provided in the Scope of Development. Subject to Section 9.3 hereof, Developer shall begin and complete all construction of the Development within the times specified in the Schedule of Performance. 11087-0009\1155216v5.doc -16- In addition to any approvals hereunder by Agency, all planning and building documents shall be submitted to, reviewed by, and approved or rejected by the Planning and Building Departments of City (as appropriate) pursuant to the City's codes, resolutions, rules and regulations. 5.2 Cost of Construction 5.2.1 The cost of developing the Project Site, together with all on- and off-site improvements set forth in the Scope of Development or otherwise required by the City Building Official, City Engineer, or City Planner, shall be borne by Developer. The Parties hereby acknowledge and agree that any increase in costs above the amounts projected or assumed by Developer, or decreases in revenues below the amounts projected or assumed by Developer, shall be at the sole financial risk of Developer, except for any increase in cost or decrease in revenue caused by the Agency. 5.2.2 Developer shall indemnify, protect, defend and hold harmless Agency and City and their officers, employees, contractors and agents, with counsel reasonably acceptable to Agency, from and against any and all loss, liability, damage, claim, cost, expense (including reasonable attorneys fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable Laws) and/or operation of the Development, including, without limitation, any and all public works (as defined by applicable Laws), results or arises in any way from any of the following: the non-compliance by Developer of any applicable local, state and/or federal Law, including, without limitation, any applicable federal and/or state labor Law (including, without limitation, if applicable, the requirement to pay state prevailing wages and to hire apprentices), except for loss, liability, damage, claim, cost, expense due to Agency's negligence or willful misconduct. 5.3 City and Other Governmental Permits Before commencement of construction or development of any buildings, structures or other work of improvement upon the Project Site, Developer shall, at its own expense (except as set forth in Section 7.2.2), secure or cause to be secured any and all permits which may be required by City or any other governmental agency affected by such construction, development or work. 5.4 Zoning and Land Use Requirements, Environmental Review 5.4.1 Agency shall cooperate with Developer in all proceedings which may be necessary so that the development of the Project Site and the construction, use, operation, and maintenance of the improvements thereon in accordance with the provisions of this Agreement shall be in conformity with applicable zoning and General Plan requirements. Agency shall use its best efforts to expedite all necessary approvals. A mitigated negative declaration for the Development contemplated by this Agreement has been prepared and approved by Agency pursuant to CEQA prior to the approval of this Agreement. In the event additional environmental studies are required, the costs of such studies shall be borne by Developer. 5.4.2 Developer shall take all necessary steps so that the development of the Project Site and the construction, use, operation, and maintenance of the improvements thereon 11087-0009\1155216v5.doc -17- in accordance with the provisions of this Agreement shall be in conformity with applicable zoning and General Plan requirements, including the conditions of approval of any required land use entitlements, and that all applicable environmental mitigation measures and other requirements shall have been complied with. 5.4.3 If any revisions or modifications to this Agreement, including the Scope of Development, shall be required to comply with any requirement of a governmental official, Agency, department or bureau having jurisdiction over the development of the Project Site, Agency and Developer shall cooperate in making such reasonable changes, consistent with the public purposes of this Agreement, as may be necessary. 5.5 Agency Rights of Access During Construction Without limiting any rights of access which Agency or City may have irrespective of this Agreement, representatives of Agency shall have a reasonable right of access to the Project Site and Development being constructed at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to the inspection of the work being performed in constructing the Improvements, so long as they comply with all safety rules and observe any rules adopted by Developer for purposes of maintaining order on the Project Site, including requirements that such representatives be escorted by representatives of Developer. Such representatives of Agency and City shall be those designated in writing by the Executive Director. Prior to issuance of Agency's Certificate of Completion, Agency and City, at their sole risk and expense, reserve the right to enter the Project Site or any part thereof at all reasonable times during ordinary business hours and with as little interference as possible for the purpose of construction, reconstruction, maintenance, repair or service of any public improvements or public facilities located on the Project Site. Any such entry shall be made only after reasonable notice to Developer, except in case of emergency repairs, and Agency and City, as applicable, shall defend, indemnify and hold Developer harmless from any costs, claims, damages or liabilities pertaining to or arising from any such entry or the activities of Agency or City on the Project Site. Any damage or injury to the Project Site or any improvement thereon resulting from any such entry shall be promptly repaired or restored at the Agency's or City's expense, as applicable. 5.6 Local, State and Federal Laws Developer shall carry out the construction of the Improvements in conformity with all applicable Laws. 5.7 Indemnification 5.7.1 Developer Indemnification of Agency and City. (a) Developer shall indemnify, defend and hold Agency and City and their officers, agents, and employees harmless from and against all Losses and Liabilities arising from or as a result of the death of any person or any accident, injury, loss, and damage whatsoever caused to any person or to the property of any person which shall occur on the 11087-0009\1155216v5.doc -18- Project Site and which shall be caused by any negligence or willful misconduct of Developer, its agents, servants, employees, or contractors, or arising out of the performance of this Agreement relating to the Project Site or the Development. Developer's obligation to indemnify Agency and City pursuant to this paragraph shall not apply to any Losses or Liabilities solely from the willful misconduct or negligence of Agency or City. The obligations of Developer pursuant to this Section 5.8.1 are not limited in any way by any insurance maintained by Developer, including but not limited to any insurance maintained pursuant to Section 5.9. (b) Without limiting Developer's indemnification, it is agreed that Developer shall maintain in force at all times during the term of this Agreement, the policy or policies of insurance covering its operations and performance under this Agreement in the form and amounts set forth hereinafter, which insurance obligations shall apply independently of the indemnification provided hereunder. (c) No member, officer, committee member, or employee of Agency or City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by Agency or for any amount that may become due to Developer or to its successor, or for breach of any obligation of the terms of this Agreement. 5.7.2 Notice of Loss or Liability; Tender of Indemnification. Each party agrees to provide the indemnifying party with written notification of any claim for any Loss or Liability within thirty (30) days of notice thereof, to allow the indemnifying party control over the defense and settlement of the claim, and to cooperate with the indemnifying party in its defense. 5.7.3 Defense of Loss or Liability. Agency, City, and Developer, at their sole discretion and expense, may employ legal counsel and participate in the defense of any actions. 5.7.4 Cooperation with Claims for Losses and Liabilities. Each party to this Agreement shall cooperate with another party in the defense of any action brought for conduct resulting under this Agreement and shall make available to that party any and all records in their respective possessions or control reasonably required by a party for use in contesting or defending liability. 5.8 Developer Insurance Requirements Without limiting Developer's liability for indemnification of Agency and City, as set forth in Section 5.7 above, Developer shall provide and maintain, in effect, during the term of this Agreement, or as may be further required herein, the following insurance coverages and provisions: 5.8.1 Evidence of Coverage. Prior to and as a condition to the Close of Escrow for conveyance of the Site, Developer shall provide on an insurance industry approved form a Certificate of Insurance certifying that coverage as required herein has been obtained and remains in force for the period required by this Agreement. In addition, a certified copy of the policy or policies shall be provided by Developer upon request of either Executive Director. Developer shall not begin any work at or access to the Site pursuant to this Agreement until it has obtained all insurance required and such insurance has been approved by the Executive 11087-0009\1155216v5.doc -19- Director. This approval of insurance shall neither relieve nor decrease the liability of Developer. 5.8.2 Notice of Cancellation or Change of Coverage. Each policy of insurance shall include a provision that expressly states that the insurance afforded by this policy shall not be canceled or changed so as to no longer meet the herein specified insurance requirements without thirty (30) days prior written notice of such cancellation or change being delivered to the Executive Director. 5.8.3 Termination of Insurance. If any policy of insurance required hereunder is terminated for any reason, Developer agrees to purchase an extended reporting provision of at least two years to report claims arising from work performed in connection with this Agreement. 5.8.4 Qualifying Insurers. All coverages shall be issued by insurance companies that must be: (a) Rated A: VIII or better or FPR Ratings of 9 through 7, and have a Financial Size Category (FSC) of VIII or better according to the current Best's Key Rating Guide/Property-Casualty/United States; or (b) A company of equal financial stability that is approved by the Executive Director; and (c) Admitted in the State of California. 5.8.5 Exceptions to Standard Policy. Agency and City acknowledge that some insurance requirements contained in this Agreement may be fulfilled by self-insurance on the part of Developer, as approved in writing in the sole discretion of the Executive Director. However, this shall not in any way limit liabilities assumed by Developer under this Agreement. (a) Any self-insured retention or deductible on any insurance policy (except auto) which exceeds $25,000 requires prior written approval of the Executive Director. (b) Any self-insured retention or deductible on automobile liability over $5,000 requires approval of the Executive Director. 5.8.6 Subcontracts. Should any of the work under this Agreement be sublet, Developer shall require each of its subcontractors of any tier to provide the coverages mentioned herein, or Developer may insure subcontractors under its own policies. 5.8.7 Noncompliance. Agency reserves the right to withhold payments to Developer in the event of material noncompliance with the insurance requirements outlined herein. 5.8.8 Comprehensive General Liability Insurance. Comprehensive General Liability Insurance for bodily injury (including death) and property damage which provides not less than two million dollars ($2,000,000) combined single limit (CSL) per occurrence and not less than four million dollars ($4,000,000) annual aggregate. 11087-0009\1155216v5.doc -20- (a) Such coverage shall include: (i) Premises and Operations (ii) Products/Completed Operations with limits of two million dollars ($2,000,000) per occurrence/aggregate to be maintained for two (2) years following the end of the term of this Agreement. (iii) Contractual Liability expressly including liability assumed under this agreement, excepting the requirement does not apply for service contracts. (iv) Personal Injury Liability. (v) Separation Clause providing that the coverage applies separately to each insured except with respect to the limits of liability. 5.8.9 Endorsements. Coverage shall include the following endorsements, copies of which shall be provided to the Executive Director. (a) Additional Insured Endorsement: Insurance afforded by this policy shall also apply to Agency and City, and the members of the Agency Board and City Council, and the officers, agents, and employees thereof, individually and collectively, as additional insureds. (b) Primary Insurance Endorsement: Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the Agency or City or their officers, agents, and employees shall be excess only and not contributing with insurance provided under this policy. (c) Notice of Cancellation or Change of Coverage Endorsement: Insurance afforded by this policy shall not be canceled or changed so as to no longer meet these specified insurance requirements without 30 days prior written notice of such cancellation or change being delivered to the Executive Director at the address shown on the Certificate of Insurance. (d) Separation Clause Endorsement: It is agreed that this policy provides coverage separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the Company's limit of liability. (e) Type of Coverage. It is the intent of Agency to secure "occurrence" rather than "claims made" coverage whenever possible. If coverage is written on a "claims made" basis, the Certificate of Insurance shall clearly so state. In addition to coverage requirements above, such policy shall provide that: (i) Policy retroactive date coincides with or precedes Developer's start of work (including subsequent policies purchased as renewals or replacements). 11087-0009\1155216v5.doc -21- (ii) Developer will make every effort to maintain similar insurance during the required extended period of coverage following completion of services, including the requirement of adding all additional insureds. (iii) Policy allows for reporting of circumstances or incidents that might give rise to future claims. (iv) The foregoing type of coverage requires prior approval from the Executive Director. 5.8.10 Comprehensive Automobile Liability Insurance. Comprehensive Automobile Liability Insurance for bodily injury (including death) and property damage which provides total limits of not less than two million dollars ($2,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles/watercraft, and not less than four million dollars ($4,000,000) annual aggregate. (a) Such insurance must be primary and any insurance maintained by Agency or the City must be excess and non contributing. (b) Agency and City must be named as additional insureds. (c) Not less than thirty (30) days written notice is required for cancellation of coverage. 5.8.11 Workers' Compensation Insurance. Workers' Compensation Insurance shall be maintained. (a) Statutory California Workers' Compensation coverage including a broad form all-states endorsement and waiver of subrogation. (b) Insurance must be primary and any insurance maintained by Agency or City must be excess and non-contributing. (c) Not less than thirty (30) days' prior written notice is required for cancellation of coverage. 5.8.12 Employers' Liability Coverage. Employers' Liability Coverage of not less than two million dollars ($2,000,000) per occurrence for all employees engaged in the Development project or operations under this Agreement. 5.8.13 Remedies for Failure to Provide or Maintain Required Insurance or Endorsements. In addition to any other remedies Agency may have if Developer fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Agency may, at its sole option, but only after providing Developer notice and the opportunity to cure for the timeframe provided under this Agreement: (a) Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any grant amount due under this Agreement. 1 1087-0009\1 155216v5.doe -22- (b) Order Developer to stop performance under this Agreement and/or withhold any payment(s) which become due to Developer hereunder until Developer demonstrates compliance with the insurance requirements hereof. (c) Immediately and without further cause terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to any other remedies Agency may have and are not the exclusive remedies for Developer's failure to maintain or secure appropriate policies or endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Developer may be held responsible for payments of damages to persons or property resulting from Developer's or its permitted subcontractors', if any, performance of work under this Agreement. 5.8.14 Required Notices. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days' prior written notice to the Executive Director. The auto policies required hereunder shall include a "lender's loss payable endorsement" (Form 438BFU) in form and substance satisfactory to the Executive Director, showing Agency as encumbrancers. Each of Agency and City, and their officials, employees, representatives, and volunteers shall be additional insureds in the worker's compensation and course of construction policies required hereunder. No such insurance shall include deductible amounts that the Executive Director has not previously consented in writing. Certificates of insurance for the above policies (and/or original policies, if required by Agency) shall be delivered to the Executive Director from time to time within ten (10) days after demand therefor. All policies insuring against damage to the Development shall contain an agreed value clause sufficient to eliminate any risk of co-insurance. Any insurance maintained by Agency or City shall apply in excess of and shall not contribute with the insurance provided by the policies furnished by Developer. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to the Executive Director evidence of renewal or replacement of such policy reasonably satisfactory to the Executive Director. 5.8.15 Knowledge of Claim. If at any time Developer becomes aware of a claim or a potential claim for any Losses or Liabilities, Developer shall immediately provide written notice ("Claim Notice") to the Executive Director which sets forth the nature of the claim or potential claim for a Loss or Liability and the date on which Developer became aware of such claim or potential claim and shall provide the Executive Director with copies of any documents relating to such claim or potential claim for any Losses or Liabilities. 5.8.16 Notice of Change in Coverage. If, at any time, Developer becomes aware that any of the coverages provided above are going to be canceled, limited in scope or coverage, terminated or non-renewed, then Developer shall immediately provide the Executive Director with written notice ("Insurance Notice") of such cancellation, limitation, termination or non-renewal. 5.8.17 Receipt of Claim for Loss or Liability. Upon the receipt of the Insurance Notice or the Claim Notice, or at any time when Agency has knowledge of (i) the cancellation, limitation, termination or non-renewal of one or more of the Developer's insurance policies enumerated above or (ii) a claim or potential claim under one or more of such policies, 11087-0009\1155216v5.doc -23- then, in addition to its other rights and remedies pursuant to this Agreement, Agency shall have the right to suspend Agency's obligations under this Agreement until such time as Developer furnishes, or causes to be furnished to the Executive Director, duplicate originals or appropriate certificates of insurance for coverages in the amounts not less than those specified above or until the time such claim or potential claim has been resolved to the reasonable satisfaction of Agency. 5.8.18 Waiver of Subrogation. Developer hereby waives all rights to recover against Agency and City (or any of their officers, employees, agents, or representatives) for any loss incurred by Developer from any cause insured against or required by any implementing document under this Agreement to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies that permit the foregoing waiver of subrogation. 5.9 Developer's Contractor's Construction Insurance Requirements From the period commencing upon the earliest to occur of (i) the effective date of the general contractor contract for the Development ("Construction Contract"), or (ii) the date Developer enters onto the Project Site to commence construction, or (iii) the date of any work or improvement on the Project Site, through the date Agency issues the final Certificate of Completion for all of the Improvements pursuant to this Agreement, Developer shall cause its general contractor to provide and maintain at no expense to Agency, insurance policies meeting the requirements set forth herein. Said insurance shall protect the general contractor, its agents, representatives, employees, vendors, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable, and said insurance is in addition to the insurance provided by Developer hereunder. 5.9.1 General Contractor Insurance Submittals. Developer's general contractor shall provide insurance according to the requirements set forth herein. General contractor will maintain the following coverages on behalf of Agency and City and any and all of their boards, officials, employees and agents. (a) Commercial General Liability Insurance shall be provided on Insurance Services Office-CGL policy form No. CG 00 01 11 85 or equivalent policy form approved by the Executive Director. Policy limits shall be no less than Three Million Dollars ($3,000,000.00) per occurrence for all coverages and not less than Ten Million Dollars ($10,000,000.00) in general aggregate. There shall be no cross liability exclusion. Coverage shall apply on a primary non-contributing basis in relation to any other insurance or self- insurance (primary or excess) available to Agency and/or City, and any and all of their boards, officials, employees or agents. General liability insurance will not be limited to coverage for the vicarious liability or the supervisory role of the additional insureds. There shall be no contractor's limitation endorsement. Coverage for the additional insureds shall apply to the fullest extent permitted by law excepting only the active negligence of Agency or City, as established by agreement between the parties or by the findings of a court of competent jurisdiction. Agency and City, and any and all of their boards, officials, employees and agents shall be added as additional insureds using Insurance Services Office additional insured 11087-0009\1155216v5.doc -24- endorsement form No. CG 20 26 1185 or another additional insured endorsement form presented to and reviewed and approved by the Executive Director in his/her sole, reasonable discretion. (b) Business Auto Coverage shall be written on Insurance Services Office Business Auto Coverage form CA 20 26 1185 including owned, non owned and hired autos. Limits shall be no less than Two Million Dollars ($2,000,000.00) per occurrence for all coverages and not less than Four Million Dollars ($4,000,000.00) in general aggregate. Developer may submit, and Executive Director may review and approve, another policy form and/or another form of additional insured endorsement. (c) Non-Owned Auto Endorsement if general contractor owns no autos, a non owned auto endorsement to the General Liability policy described above is acceptable. (d) Workers' Compensation/Employer's Liability shall be written on a policy form providing workers' compensation statutory benefits as required by law. Employer's liability limits shall be no less than Two Million Dollars ($2,000,000) per accident or disease. Unless otherwise agreed, this policy shall be endorsed to waive any right of subrogation as respects Agency and/or City and any and all of their boards, officials, employees or agents. (e) Course of Construction (Builder's Risk) Insurance shall be provided by general contractor (or by Developer) and shall include Agency and City and any and all of their boards, officials, employees and agents as additional insureds using Insurance Services Office additional insured endorsement form No. CG 20 26 1185 or another additional insured endorsement form presented to and reviewed and approved by the Executive Director in his/her sole, reasonable discretion. Coverage shall be for the full completed value of the Development project. Any deductible amounts shall be the responsibility of the first named insured on the policy and shall not be the responsibility of Agency. The policy shall cover all real and personal property for "all risks" of loss including but not limited to the perils of earth movement including earthquake and flood for all buildings, structures, fixtures, materials, supplies, machinery and equipment to be used in or incidental to the construction at the Project Site, ofd' site, or in transit, for the full replacement value of such properties. Coverage shall be included for property of others in the care, custody or control of the insured for which any insured may be liable. (f) General Conditions pertaining to provision of insurance coverage by general contractor. General contractor must agree to the following provisions regarding insurance provided by general contractor: (i) The general contractor agrees to provide insurance in accordance with the requirements set forth herein. If general contractor uses existing coverage to comply with these requirements and that coverage does not meet the requirements set forth herein, general contractor agrees to amend, supplement or endorse the existing coverage to do so. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, Agency has the right to order general contractor to discontinue work until suitable replacement coverage is obtained. 1 1087-0009\1 155216v5.doe -25- (ii) The coverage required here will be renewed annually by general contractor as long as general contractor continues to provide any construction services under this or any other contract or agreement with the Developer related to the Project Site. (iii) No liability insurance coverage provided to comply with this Agreement shall prohibit general contractor, or general contractor's employees, or agents, from waiving the right of subrogation prior to a loss. General contractor waives its right of subrogation against Agency and City. (iv) No liability policy shall contain any provision or definition that would serve to eliminate so-called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor. general contractor expressly agrees not to use any statutory immunity defenses under workers' compensation or related laws with respect to Agency or City, or their employees, officials and agents, to avoid general contractor's indemnity obligation for such third party action over claims. (v) All insurance coverage and limits provided by general contractor and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement limits the application of such insurance coverage. (vi) Unless otherwise approved by the Executive Director, insurance provided pursuant to these requirements shall be written by insurers authorized to do business in the State of California and with a minimum "Best's" Insurance Guide rating of A: V II. (vii) Any "self-insured retention" must be declared and approved by the Executive Director. Agency reserves the right to require the self insured retention to be eliminated, reduced, or replaced by a deductible. Self-funding, policy fronting or other mechanisms to avoid risk transfer shall be fully disclosed to the Executive Director before any notice to proceed is issued. (g) General contractor shall provide proof that policies of insurance required herein expiring during the terms of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from general contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to the Executive Director within five (5) days of the expiration of the coverages. (h) General contractor agrees to provide evidence of the insurance required herein, satisfactory to the Executive Director, consisting of. (a) certificate(s) of insurance evidencing all of the coverages required and, (b) additional insured endorsement(s) to general contractor's liability policy using Insurance Services Office additional insured endorsement form No. CG 20 26 1185 or equivalent that is not restricted to general contractor's "ongoing operations", and/or or another additional insured endorsement form presented to and reviewed and approved by the Executive Director in his/her sole, reasonable discretion. General 1 1087-0009\1 155216v5.doe -26- contractor agrees, upon written request by either Executive Director to provide complete, certified copies of any policies required by this section, within 10 days of such request. Any actual or alleged failure on the part of Agency or any other additional insured under these requirements to obtain proof of insurance required under this Agreement in no way waives any right or remedy of Agency or any additional insured, in this or any other regard. (i) Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to the Executive Director of any cancellation of coverage. General contractor agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. (i) General contractor agrees to require all subcontractors or other parties hired for this Development project to provide workers' compensation, general liability and automobile liability insurance, unless otherwise agreed to by the Executive Director with minimum liability limits of two million dollars ($2,000,000). The subcontractor's general liability insurance shall add Agency and City as additional insureds using Insurance Services Office additional insured endorsement form No. CG 20 26 1185 or another additional insured endorsement form presented to and reviewed and approved by the Executive Director in his/her sole, reasonable discretion. General contractor agrees to obtain certificates evidencing such coverage and make reasonable efforts to ensure that such coverage is provided as required here. (j) Requirements of specific coverage features or limits contained in these insurance provisions are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. (k) General contractor agrees to provide immediate notice to the Executive Director of any claim for any Losses or Liabilities against general contractor that includes Agency or City as a defendant and of any claim for Losses or Liabilities arising out of the work performed under this Agreement in which the demand or probable ultimate cost exceeds $10,000. Agency assumes no obligation or liability by such notice, but reserves and has the right (but not the duty) to monitor the handling of any such claim for any Loss or Liability claims if they are likely to involve Agency. (1) The insurance requirements set forth herein are intended to be separate and distinct from any other provision in this Agreement and are intended to be interpreted as such. (m) These insurance requirements supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of these insurance requirements. For purposes of insurance coverage only, this Agreement will be deemed to have been executed 11087-0009\1155216v5.doc -27- and performed by Developer immediately upon Developer taking any steps that can be deemed to be in furtherance of or towards commencing the work of construction of the Development on the Project Site. 5.10 Non-Discrimination During Construction (a) Developer for itself and its successors and assigns agrees that in the construction of the improvements on the Project Site provided for in this Agreement, Developer will not unlawfully discriminate against any employee or applicant for employment because of race, color, religion, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, sex or sexual orientation. Developer will take reasonable action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, sex or sexual orientation. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Developer hereby certifies and agrees that, in all matters affecting this Agreement, it shall comply with all applicable federal and state laws and regulations prohibiting discrimination by Developer, including but not limited to all applicable provisions of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination in Employment Act of 1975, and the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7258.0 et seq.), or as they may be subsequently amended, in the construction of Improvements. The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a- f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this contract by reference and made a part hereof as if set forth in full. The foregoing shall not be construed to prohibit employment practices not otherwise prohibited by law. Developer agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. (b) Developer will, in all solicitations or advertisements for employees placed by or on behalf of Developer, state that all qualified applicants will receive consideration for employment without regard to race, color, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, sex or sexual orientation. 5.11 Taxes, Assessments, Encumbrances and Liens Developer shall pay, or cause to be paid, prior to delinquency, all real estate taxes and assessments assessed and levied on the Site subsequent to Developer's acquisition of fee title thereto. Nothing herein shall prohibit Developer from applying to appropriate taxing agencies for any legal exemptions from the imposition of real property taxes or possessory interest taxes applicable to the Project Site, or the imposition of taxes upon its personal property, equipment, and trade fixtures installed in or about the Project Site, or any other exemption, exclusion, or benefit available to Developer. 11087-0009\1155216v5.doc -28- 5.12 Security Financing, Rights of Holders 5.12.1 No Encumbrances Except Mortgages, Deeds of Trust, Sales and Leasebacks or Other Financing for Development Subject to the following provisions, mortgages, deeds of trust, sales and lease- backs or any other form of conveyance required for any reasonable method of financing by Developer are permitted before issuance of a Certificate of Completion (including the granting of a security interest in Developer's rights in this Agreement), but only for the purpose of securing funds to be used for financing the acquisition of the Project Site and/or the construction of Improvements on the Project Site and/or any take-out financing related to the development of the Project Site and any other expenditures necessary or appropriate to develop the Project Site under this Agreement, including without limitation real and personal property taxes, related off- site improvements, insurance premiums, closing costs, attorneys' fees, loan carrying costs and costs of financing. Developer shall notify Agency in advance of any mortgage, deed of trust, or other form of conveyance for financing if Developer proposes to enter into the same before issuance of a Certificate of Completion for the construction of the improvements on the Project Site or portion of the Project Site to be subject to such financing arrangement. Developer shall not enter into any such conveyance for financing without the prior written approval of Agency. Agency hereby approves mortgages, deeds of trust, and regulatory agreements in connection with the County Loan, the Construction Loan, the Permanent Loan, and all financing described in Section 7. 1, provided the financing is on commercially reasonable terms and is otherwise consistent with Section 7.1. In any event, Developer shall promptly notify Agency in writing of any lien or other encumbrance that has been created or attached to the Project Site or Improvement prior to issuance of a Certificate of Completion. 5.12.2 Holder Not Obligated to Construct Improvements A Holder shall in no way be obligated by the provisions of this Agreement to construct or complete the Improvements or to guarantee such construction or completion; however, no Holder may devote the Project Site to any uses, or to construct any Improvements thereon, other than those uses or Improvements provided for or authorized by this Agreement. 5.12.3 Right of Agency to Cure Mortgage, Deed of Trust, Other Security Interest, Lease-back or Other Conveyance for Financing Default In the event of an uncured default or breach by Developer of a mortgage, deed of trust, other security instrument or obligations to the grantee under any conveyance for financing for the Project Site or the Development prior to the issuance of a Certificate of Completion therefor (unless Developer is contesting such default in good faith), and the Holder has not exercised its option to complete the Development, Agency may, pursuant to the terms of this Agreement, cure the default no sooner than immediately prior to completion of the foreclosure. In such event, Agency shall be entitled to reimbursement of all direct and actual costs and 11087-0009\1155216v5.doc -29- expenses incurred by Agency in curing the default and Developer's obligation to reimburse shall be secured by the Agency Deed of Trust. 5.13 Certificate of Completion Promptly after completion of the construction of the Improvements comprising the Development, or any portion thereof, Agency shall furnish Developer with a Certificate of Completion upon written request therefor by Developer. The Certificate of Completion shall be and shall constitute a conclusive determination of satisfactory completion of the construction required by this Agreement for the Development or portion of the Development for which the Certificate is issued. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of Riverside County. If Agency refuses or fails to furnish a Certificate of Completion within ten (10) days after written request therefor from Developer, Agency shall, within such period of ten (10) days, provide Developer with a written statement of the reasons why Agency refuses or fails to furnish such Certificate of Completion and Agency's opinion of the action Developer must take to obtain such Certificate of Completion. If Agency fails to respond to Developer in writing within ten (10) business days after Developer's written request for a Certificate of Completion, then Agency shall be deemed to have approved the construction of the Improvements and shall have waived all conditions subsequent to issuance and recordation of a Certificate of Completion. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any Holder, or any insurer of a mortgage securing money loaned to finance the Improvements, or any part thereof. Such Certificate of Completion is not a notice of completion as referred to in California Civil Code Section 3093. ARTICLE 6 USES OF THE SITE 6.1 Uses 6.1.1 Housing. Developer shall develop on the Project Site ninety (90) units of housing, as more specifically described in the Scope of Development and the City's land use entitlement for the Project Site. Developer covenants and agrees for itself and its successors and assigns, and every successor in interest to the Project Site, or any portion thereof, that during construction and thereafter, Developer and such successors and assigns shall use the Project Site exclusively for the purposes herein stated and shall not devote the Project Site to any uses which are inconsistent with this Agreement and applicable City land use entitlements. 6.1.2 After the issuance of a Certificate of Completion for the Project Site, Developer shall not make or permit to be made any substantial structural additions or modifications to the exterior of any of the Improvements required to be constructed on the Project Site pursuant to this Agreement, or permit a use other than as set forth herein, without the prior written consent of Agency. 11087-0009\1155216v5.doc -30- 6.2 Affordable Housing 6.2.1 Developer shall assure that forty-four of the ninety (90) dwelling units (the "Restricted Units") are used, occupied, operated, leased, and/or rented exclusively to Lower Income Households at Affordable Rents for the full term of the Agency Regulatory Agreement. 6.2.2 Developer shall submit an annual report ("Annual Report") to Agency, which contains the information required by Health and Safety Code Section 33418. The Annual Report shall include information for each and all of the Restricted Units, including: (a) move-in date, (b) rental rate, (c) household income, (d) family size for each unit, all for the applicable annual reporting period. The household income information shall be supplied by the tenant household in a certified statement on a form provided by Agency, or an equivalent certification form, such as the form required by the Tax Credit Allocation Committee. Developer shall submit the Annual Report on or before the first September 1 following the issuance and recording of the Certificate of Completion for the Development and each September 1 thereafter for the term of the Agency Regulatory Agreement. 6.3 Management Plan 6.3.1 Not later than the time specified therefor in the Schedule of Performance, Developer shall submit to the Executive Director a Management Plan for the Development in a form acceptable to Agency and including but not limited to, the components listed below. The Management Plan, including such amendments as are approved by Agency, shall remain in effect for the term of the Agency Regulatory Agreement. The Management Plan and any of its component plans or agreements may be materially amended by Developer only with the prior approval of the Executive Director. 6.3.2 The Management Plan shall include, but is not limited to, the following components: (a) Management Agent: Developer shall submit the name and qualifications of the proposed management agent. Agency shall approve or disapprove the proposed Agent in writing based on his/her experience and qualifications in managing rental housing affordable to Lower Income Households which approval shall not be unreasonably withheld. The Agency hereby approves BRIDGE Property Management Company as a Management Agent. (b) Marketing: In a form reasonably satisfactory to Agency, Developer shall submit a plan for attracting tenants to the Development ("Marketing Plan"). Developer shall be responsible for implementing the approved plan at initial marketing of the Development. Within the limitations of applicable Laws, the Marketing Plan shall target advertising and marketing efforts first toward persons displaced from their homes in the Redevelopment Project Area; second toward City of Temecula residents; and third to all other persons. (c) Management Program: In a form reasonably satisfactory to Agency, Developer or its management agent shall describe the proposed management, 1 1087-0009\1 155216v5.doe -3 1- maintenance, tenant selection and occupancy policies and procedures for the Development. Such policies and procedures must be consistent with the terms of this Agreement. (d) Management Agreement: Developer shall submit a copy of the proposed management agreement specifying the amount of the management fee and relationship and division of responsibilities between Developer and the management agent. (e) Lease Agreement: Developer shall submit a copy of the proposed lease or rental agreement to be used in the Development. (f) Parking Management Plan: Developer shall submit a plan for management of parking for the Project Site. As appropriate, provisions of the parking management plan shall be included in the proposed lease or rental agreement. If at any time during the term of the Agency Regulatory Agreement the Executive Director reasonably determines that the Development is not being managed or maintained in a manner consistent with well-managed Agency developments, Agency may send written notice thereof to Developer, describing the manner in which management of the Development is not being satisfactorily maintained. If Developer fails to cure the failure within the cure periods set forth in Section 8. 1, Agency may require Developer to change management practices or to terminate the management contract and retain a different management agent, approved by Agency. The management agreement shall include a provision that it shall be subject to termination by Developer without penalty, upon not less than thirty (30) days prior written notice, if Agency shall request Developer (i) to exercise such right of termination, and (ii) to make immediate arrangements satisfactory to Agency for continuing management of the Development. Developer may change the management agent at any time, with the prior written approval of the Executive Director. Such approval or denial shall be provided within (10) business days after receipt of Developer's written request and shall be based on the proposed management agent's experience and qualifications in managing rental housing affordable to Lower Income Households, which approval shall not be unreasonably withheld. 6.4 Maintenance of the Project Site and Improvements From and after Developer's acquisition of title and during the term of the Agency Regulatory Agreement, Developer covenants that Developer shall reasonably maintain the Improvements on the Project Site and shall keep the Project Site free from any accumulation of debris or waste materials. Maintenance shall include the interior and exterior of Project Site and Improvements in a decent, safe and sanitary manner, and the standard of maintenance of comparable affordable housing rental apartment projects within Riverside County. If at any time Developer fails to maintain the Project Site and Improvements in accordance with this Agreement and such condition is not corrected within five (5) days after written notice from the Executive Director with respect to graffiti, debris, waste material, and general maintenance, or thirty (30) days after written notice with respect to landscaping and building improvements, then Agency, in addition to whatever remedy it may have at law or at equity, shall have the right to enter upon the applicable portion of the Project Site and perform all acts and work necessary to protect, maintain, and preserve the Project Site and Improvements and landscaped areas thereon, and to attach a lien upon the Project Site, or to assess the Project Site, in the amount of the 11087-0009\1155216v5.doc -32- expenditures arising from such acts and work of protection, maintenance, and preservation by Agency and/or costs of such cure, including a reasonable administrative charge, which amount shall be promptly paid by Developer to Agency upon demand. 6.5 Obligation to Refrain from Discrimination; Form of Non-discrimination Clauses 6.5.1 Developer covenants by and for itself and any successors in interest that there shall be no discrimination against, or segregation of, any persons, or group of persons, on account of sex or sexual orientation, race, color, creed, marital status, religion, national origin or ancestry in the enjoyment of the Project Site or any portion or component thereof, nor shall Developer itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, subleases or vendees of the Project Site. The foregoing covenants shall run with the land and shall remain in effect for the periods specified in the Grant Deed and the Agency Regulatory Agreement. 6.5.2 Developer shall refrain from restricting the rental, sale, or lease of the Project Site or any portion or component thereof on the basis of race, color, creed, religion, sex or sexual orientation, marital status, ancestry or national origin of any person. All deeds, leases or contracts entered into by Developer that relate to the Project Site or the improvements thereon or any portion thereof shall contain and be subject to substantially the following nondiscrimination or nonsegregation clauses: (1) In deeds: "The grantee herein covenants by and for and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the California Government Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." (2) In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and that this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of, any person or 11087-0009\1155216v5.doc -33- group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein leased. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the California Government Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." (3) In contracts: "There shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the California Government Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." The foregoing shall remain in effect in perpetuity. 6.6 Prohibition Against Walk-Up Services Developer shall not provide, or permit any other person to provide, food or clothing or other assistance to clients (other than residents of the Development, and as to potential residents of the Development, an office to pick up and submit rental applications) on a walk-up basis. 6.7 Agency Regulatory Agreement Developer and Agency shall execute, acknowledge and deliver a document in the form attached to this Agreement as Attachment No. 6 and incorporated herein by this reference, entitled "Regulatory Agreement, Right of first offer, and Purchase Option". Agency is hereby 11087-0009\1155216v5.doc -34- authorized to record the Agency Regulatory Agreement against the Project Site. The Executive Director of the Agency shall execute and acknowledge a reasonable subordination agreement subordinating the Agency's right of first offer in the Regulatory Agreement to the lien of the deed of trust securing the County Loan ("Agency/County Limited Subordination Agreement"). 6.8 Effect and Duration of Covenants The covenants established in this Agreement, shall, without regard to technical classification or designation, be binding on Developer and any successor in interest to the Project Site or any part thereof for the benefit and in favor of Agency, City and their successors and assigns. Except as otherwise set forth in this Agreement, the covenants contained in this Agreement shall remain in effect fifty-five (55) years from the date of the recordation of the Certificate of Completion. The covenants against discrimination (as described in Section 6.6) shall remain in effect in perpetuity. ARTICLE 7 AGENCY FINANCIAL ASSISTANCE 7.1 Method of Financing Development 7.1.1 Agency and Developer anticipate that the Development will be financed through a combination of sources including, but not limited to, the County Loan, tax credit equity and through conventional financing (construction and permanent financing) from Qualified Lenders. The proposed financing scenario ("Financing Scenario") consists of the following: 1 1087-0009\1 155216v5.doe -35- I. Uses of Funds (more detail is provided in the Project Budget attached to this OPA as Attachment No. 9) Acquisition Cost $3,546,000 Direct Costs $11,593,000 Indirect Costs $5,132,000 Financing Costs $1,256,000 Total Uses of Funds $21,527,000 II. Sources of Funds 1. Construction Construction Loan $16,281,000 Tax Credit Equity $100,000 Deferred Developer Fee $1,200,000 Accrued Interest on Agency's Loan During Construction Period $86,000 Deferred Costs $360,000 County Loan $1,000,000 Agency Loan $2.500.000 Total Sources of Funds - Construction $21,527,000 2. Permanent Permanent Loan 30 years, 7.25% interest $2,004,000 Tax Credit Equity pricing @ $0.715 $14,353,000 Deferred Developer Fee $300,000 Accrued Interest on Acquisition Loan $86,000 County of Riverside NSP Funds $1,000,000 City of Temecula - Redevelopment Agency Contribution $3,784,000 ($2,500,000 for Site acquisition; $1,284,000 upon Completion) Total Sources of Funds - Permanent $21,527,000 7.1.2 Developer shall make good faith, diligent and commercially reasonable efforts to solicit at least three (3) bids from prospective tax credit investors for Agency approval, which shall not be unreasonably withheld. Developer shall also use good faith, diligent and commercially reasonable efforts to obtain: (i) TCAC approval of the maximum tax credits available, including submitting applications at each opportunity in 2009 and, if necessary, in 2010, (ii) the maximum financing available from the Affordable Housing Program of the San Francisco Federal Home Loan Bank, including submitting a complete application by October 1, 11087-0009\1155216v5.doc -36- 2009 for 2009 AHP Round B, and (iii) the maximum amount of permanent financing available on commercially reasonable terms from a Qualified Lender (as reasonably determined by Agency). The amount of the net proceeds of permanent financing and tax credit equity shall be determined by the Borrower and submitted to the Agency for approval on the date the Borrower submits the final Form 8609 cost audit for the Development to the California Tax Credit Allocation Committee. The amount of the net proceeds of permanent financing and tax credit equity shall be calculated using the actual amount of the permanent financing and tax credit equity realized by the Borrower, provided that Borrower provides sufficient evidence that the actual amount of permanent approved financing and tax credit equity realized by Borrower is the maximum amount that Borrower could secure for the Development applying reasonable underwriting standards. The Borrower shall also submit to the Agency any additional documentation sufficient to verify the amount of the net proceeds. The Agency shall approve or disapprove Borrower's determination of the amount of the net proceeds in writing within thirty (30) days of its receipt of Borrower's cost audit and supplemental documentation. If Borrower's determination is disapproved by the Agency, Borrower shall re-submit documentation to the Agency until Agency approval is obtained. The net proceeds shall be due the Agency from the Borrower no later than five (5) days following the date (as reasonably scheduled by Borrower) that the final capital contribution from the Borrower's limited partner investor is to be made. As of the date of the Agreement, this final capital contribution is expected to be received on or before August 30, 2010. As of the date of this Agreement, the Agency has approved the Financing Scenario described in Section 7.1.1 and the Project Budget set forth in Attachment 9 (collectively, the "Approved Development Budget"). Developer shall submit any material amendments to the Approved Development Budget to the Executive Director for approval within fifteen (15) days after the date Developer receives information indicating that actual costs of the Development vary or will vary from the costs shown on the Approved Development Budget. The Executive Director shall utilize good faith efforts to approve or disapprove requested amendments to the Development Budget within ten (10) business days after receipt of a required for approval, but reserves the right to obtain formal approval by the Agency. 7.1.3 Subject to Section 7.1.2 above, in order to assist Developer in implementing the Financing Scenario, Agency agrees to provide the Agency Loan to Developer in accordance with the terms and conditions set forth in Section 7.2 below. 7.2 Agency Loan 7.2.1 Agency Loan Generally Agency agrees to lend to Developer, and Developer agrees to accept from Agency, an amount not to exceed Three Million Seven Hundred Eighty-Four Thousand Dollars ($3,784,000) ("Agency Loan"). The Agency Loan shall accrue interest at the rate of five percent (5%) per annum, simple interest. The Agency Loan shall be evidenced by the Agency Note, and secured by the Agency Trust Deed, which shall be recorded on record title to the 11087-0009\1155216v5.doc -37- Project Site. The Agency Loan shall be used solely for the purposes set forth in Section 7.2.2; no portion of the Agency Loan shall be used to pay any employees of Developer. 7.2.2 Disbursement of Agency Loan; Conditions The Agency Loan shall be disbursed as follows: 1. $2,500,000 for costs of acquiring the Site, at closing 2. provided that written permanent loan commitments from Qualified Lenders containing commercially reasonable closing conditions are in effect for all permanent financing (other than the Agency Loan) that will be needed for the Development, as shown by written lending commitments delivered to the Agency and reasonable estoppel certificates from the permanent lender if required by the Executive Director, and allocations of tax credits and commitments of tax credit equity required for the Development have been obtained, then an additional $1,284,000 upon Completion of the Development, as permanent financing for the Development (for application to construction financing). It shall be a condition to any disbursement that Developer not be in default under this Agreement (including, without limitation, Section 7.1.2 above) or any of the documents described herein that shall have been executed by Developer, or under any other loan secured by the Development or any portion thereof. 7.2.3 Repayment of Agency (a) The Agency Loan (including all outstanding principal and accrued interest) shall become due and payable upon the earlier of occurrence of an Event of Default or the date that is fifty-five (55) years after the recordation of the deed of trust securing the Permanent Loan. (b) Seventy-five percent (75%) of the Residual Receipts (defined below) shall be paid to the Agency. The Agency's share shall be paid to the Agency on an annual basis on the Payments Dates for application to sums outstanding under the Loan (which shall be applied first to sums other than principal, then to principal), and on or before such annual Payment Date, Developer shall deliver to Agency in writing a detailed description of the calculation of the Residual Receipts and the calculation of the payment (or the detailed calculations, with reasonable back-up evidence, showing that no such payment is then due). Any Residual Receipts remaining after other financing for the Development has been fully re-paid by the payments described in the first sentence of this paragraph (and by any other payments) shall be paid to Agency to repay the remaining outstanding principal of and accrued interest on the Loan, to the extent of seventy-five percent (75%) of Residual Receipts. "Residual Receipts" means the Annual Project Revenue less (A) Annual Operating Expenses; (B) a limited partner asset management fee of $7,500 per year for the first fifteen (15) years after the recording of the Certificate of Completion, increased by 3.5% per 11087-0009\1155216v5.doc -38- year; (C) a general partner fee of $25,000 per year, increased by 3.5% a year; (D) deferred development fees of $300,000 (without interest); and (E) in the event AHP financing is obtained and AHP conditions such financing upon increased in the contemplated tenant services that result in increased Tenant Services Expenses above Pro Forma Tenant Services Operating Expenses (as reasonably determined by Agency), then up to $10,000 a year of such additional operating costs in excess of the Pro Forma Tenant Services Expenses (defined below), with such $10,000 limitation on additional Tenant Services Expenses increasing by 3 1/2% per year after the first full calendar year of operation of the Project after the issuance of a Certificate of Occupancy. "Annual Project Revenue" means all revenue generated by the Development, including, but not limited to, rent payments, governmental assistance housing payments, laundry and other vending machine and pay telephone income and tenant reimbursements of costs. The Annual Project Revenue shall exclude security deposits (unless and until they are applied to pay obligations of tenants), loan proceeds, grants, capital contributions, insurance proceeds and condemnation awards. "Annual Operating Expenses" means all regular and customary annual expenses incurred in relation to the operation of the Development. Said Annual Operating Expenses may include a reasonable property management fee, fees of accountants, attorneys and other professionals allocable to the Development, periodic installment payments of principal and interest on permanent loans that refinance the loans for the Project that are contemplated by this Agreement (up to the amount of the outstanding balances under the construction loans), repayment of completion and operating deficit loans (excluding any payments of Residual Receipts and any other payments based on a percentage or portion of Development revenue), utility charges, operating, maintenance and repair expenses (including capital repairs and replacements to the extent not paid from loan proceeds or required reserves), Development property taxes and assessments and Development insurance premiums. Notwithstanding the foregoing, in no event shall Annual Operating Expenses include any costs, fees, fines, charges, penalties, awards, judgments or expenses (including, but not limited to legal and accounting fees and expenses) which are due to or arising out of the Borrower's (A) breach or default of the Agency Loan, any Loan Document or any loan document for any other loan secured by the Development or any portion thereof, (B) fraudulent acts or willful misconduct, or (C) breach or default under any other contract, lease or agreement pertaining to the Development. Annual Operating Expenses shall also not include other expenses not related to the Development's operations such as depreciation, amortization, accrued principal and interest expense on deferred payment debt and expenditures, or indebtedness, for new construction not included in the initial Development. "Pro Forma Tenant Services Operating Expenses" means the sum of $10,000 per year, increasing after the first full calendar year operation of the Project after the issuance of a Certificate of Occupancy by 31/2% per year. "Tenant Services Expenses" shall mean tenant training services, tenant education services, and other tenant-specific services. 11087-0009\1155216v5.doc -39- ARTICLE 8 EVENTS OF DEFAULT AND RIGHTS OF TERMINATION AND OTHER REMEDIES 8.1 Events of Defaults - General 8.1.1 Subject to any extensions of time pursuant to Section 9.3, failure or delay by either Party to perform any term or provision of this Agreement that is not cured within the time period hereinafter set forth constitutes an Event of Default under this Agreement. The continuance of a default under any loan secured by the Development after any applicable notice has been given by the lender and any applicable cure period under the applicable loan documents has expired shall also constitute an Event of Default by Developer under this Agreement. 8.1.2 The non-defaulting Party shall give written notice of default to the Party in default, specifying the default complained of by the non-defaulting Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. 8.1.3 The defaulting party shall have thirty (30) days after written notice thereof from the non-defaulting Party to cure the default; provided that if the nature of the default is such that more than thirty (30) days are reasonably required for its cure, then the defaulting Party shall not be deemed to be in default if it has promptly commenced a cure within the 30-day period and thereafter diligently prosecutes such cure to completion. 8.1.4 Any failures or delays by any Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive any Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect assert or enforce any such rights or remedies. 8.1.5 Agency agrees to provide copies of notices of default under this Agreement to Developer's investor limited partner at such address as provided by the limited partner, and agrees to accept any cure tendered by Developer's limited partner as if it had proffered by Developer. 8.2 Rights and Remedies are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by any other Party. Upon the occurrence of an event of default, except as to rights and remedies expressly declared to be exclusive in this Agreement, the injured Party shall have all rights and remedies against the defaulting Party as may be available at Law or in equity to cure, correct or remedy any event of default, to obtain specific performance, to recover damages, or to obtain any other remedy consistent with the purpose of this Agreement. 11087-0009\1155216v5.doc -40- 8.3 Remedies Upon an Event of Default by Developer, Agency may terminate its commitment to provide disbursements of the Agency Loan, and shall also have any other rights and remedies at law, in equity or under this Agreement that are available to Agency. 8.4 Institution of Legal Actions In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any default, to recover damages for any default, or to obtain specific performance or any other remedy consistent with the purpose of this Agreement, except that there shall be no right to terminate this Agreement except as set forth in Sections 8.3, 8.4, and 8.5 of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in any other appropriate court in Riverside County, or in the Federal District Court in the Central District of California. 8.5 Applicable Law and Attorneys' Fees The Laws of the State of California shall govern the interpretation and enforcement of this Agreement. Should legal action be brought by either Party for breach of this Agreement to enforce any provision, the prevailing Party in such action shall be entitled to actual attorneys' fees, court costs, and other litigation expenses including, without limitation, expenses incurred for preparation and discovery, and on appeal. The entitlement to recover such fees, costs and expenses shall accrue upon the commencement of the action regardless of whether the action is prosecuted to final judgment. 8.6 Acceptance of Service of Process In the event that any legal action is commenced by Developer against Agency, service of process on Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by Law. In the event that any legal action is commenced by Agency against Developer, service of process on such Party shall be made by personal service upon a general partner or an officer of general partner of Developer, or in such other manner as may be provided by Law, and shall be valid whether made within or without the State of California. ARTICLE 9 GENERAL PROVISIONS 9.1 Notices, Demands and Communications Between the Parties All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage pre-paid, return receipt requested, or by a nationally recognized courier service that provides a written receipt of delivery, to the addresses set forth in this Section 9. 1, with a copy to designated legal counsel. The notices or other communications shall be deemed received and effective upon: (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, the date of delivery or refusal to accept delivery indicated in the certified or 11087-0009\1155216v5.doc 41- registered mail receipt; or (iii) if given by courier service, on the date of delivery evidenced by the receipt for delivery provided by the courier service. For Agency/City Temecula Redevelopment Agency 43200 Business Park Drive Temecula, California 92590 Attention: Patrick Richardson, Director of Planning and Redevelopment with a copy to: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 Attention: Bruce Galloway For Developer: Bridge SC, LLC c/o BRIDGE Housing Corporation 345 Spear Street, Suite 700 San Francisco, CA 94105 Attention: Director of Development with a copy to: Goldfarb & Lipman LLP 1300 Clay Street, Ninth Floor Oakland, CA 94612 Attention: Polly V. Marshall For Escrow Agent/Title Company: First American Title Insurance Company 135 Main Street, Suite 1200 San Francisco, CA 94105 Attention: Ms. Heather Kucala Escrow Number: NCS-387174-SA1 Such written notices, demands, correspondence and communications may be sent in the same manner to such other persons and addresses as either Party may from time to time designate in writing as provided in this Section. Notice shall be effective upon the date of personal delivery or, in the case of mailing, on the date of delivery or attempted delivery as shown on the U.S. Postal Service certified mail return receipt. 9.2 Nonliability of Officials, Officers, and Employees No member, official or employee of City or Agency shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by Agency for any amount that may become due to Developer or its successors, or on any obligations under the terms of this Agreement. No partner, or officer, or director of partner of Developer shall be personally liable to the Agency in the event of any default or breach by Developer or for any 11087-0009\1155216v5.doc -42- amount that may become due to the Agency or on any obligations under the terms of this Agreement. 9.3 Enforced Delay; Extension of Times of Performance In addition to specific provisions of this Agreement, performance by any Party hereunder shall not be deemed to be in default, where delays or defaults are due to acts of God, or the elements, accident, casualty, unavailability or delays in delivery of any product (but not any delay in obtaining any financing or funding for the Improvements), labor, fuel, service or materials, failure or break-down of equipment, strikes, lockouts, or other labor disturbances, acts of the public enemy, acts of terrorism, orders or inaction of any kind from the government of the United States, the State of California, or any other governmental, military or civil authority (other than City or Agency, to the extent that such orders or inaction affect City's or Agency's obligations, performance or rights under this Agreement or the orders, inaction or delay by City or Agency is not unreasonable under the circumstances), war, insurrections, riots, epidemics, landslides, lightning, droughts, floods, fires, earthquakes, arrests, civil disturbances, explosions, freight embargoes, lack of transportation, breakage or accidents to vehicles, or any other inability of any Party hereto, whether similar or dissimilar to those enumerated or otherwise, which are not within the control of the Party claiming such inability or disability, which such Party could not have avoided by exercising due diligence and care and regarding which such Party shall use all reasonable efforts that are practically available to it in order to correct such condition. However, no Party hereto shall be entitled to any extension of time pursuant to this Section 9.3 due to any event or condition caused by a Party's inherent financial condition or financial inability to pay its monetary obligations when due (as distinguished from a Party's inability to make a payment by reason of a bank's failure or some other external cause not associated with such Party's financial condition). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of time reasonable in light of the enforced delay. The extension of time shall commence to run from the time of the commencement of the cause, so long as the Party claiming the extension has notified the other Party in writing of the nature of the matter constituting the enforced delay within ten (10) days after the occurrence of the enforced delay. 9.4 Plans and Data If this Agreement is terminated for any reason other than Agency's default, Developer shall deliver to Agency copies of any and all plans and data concerning the Site which are in the possession of Developer, and shall assign to Agency all rights held by Developer to use such plans and data. In doing so, Developer shall not be considered to be making any representation regarding the content of such plans and data or expressly or impliedly warranting the accuracy thereof. 9.5 No Real Estate Commissions If any claim for brokers' or finders' fees for the consummation of this Agreement arises, then Developer hereby agrees to indemnify, hold harmless and defend Agency from and 11087-0009\1155216v5.doc -43- against such claim(s) if it (they) shall be based upon any statement or representation or agreement made by Developer, and Agency hereby agrees to indemnify, hold harmless and defend Developer if such claim(s) shall be based upon any statement, representation or agreement made by Agency. 9.6 Successors and Assigns This Agreement shall bind and inure to the benefit of the Parties to this Agreement and their respective successors and assigns; provided, however, that this provision shall not authorize the assignment or transfer of any interest that is prohibited specifically by the other terms of this Agreement. 9.7 Relationship of the Parties The terms and provisions of this Agreement shall not cause the Parties hereto to be construed in any manner whatsoever as partners, joint venturers or agents of each other in the performance of their respective duties and obligations under this Agreement, or subject either Party to this Agreement to any obligations, loss, charge or expense of the other Party unless the Party to be held responsible has independently contracted with the claimant so as to make it directly responsible for the performance and/or payment, as appropriate, of the pertinent obligation, loss, charge or expense. 9.8 Text to Control; Interpretation 9.8.1 The headings in this Agreement are included solely for convenience, and if there shall be any conflict between such headings and the text of this Agreement, the text shall control. 9.8.2 Should any provisions of this Agreement require interpretation, it is agreed that the person or persons interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one Party by reason of the rule of construction that a document is to be construed more strictly against the Party thereto who itself or through its agent or counsel prepared the same or caused the same to be prepared; it being agreed that the agents and counsel of both of the Parties hereto have participated equally in the negotiation and preparation of this Agreement. 9.9 Severability To the best knowledge and belief of the Parties to this Agreement, this Agreement contains no provision that is contrary to any federal, state or local Law or to any regulatory requirement or other ruling or regulation of a federal, state or local agency or that would be in breach of the obligations of either or both of the Parties hereto under the terms and provision of any legally binding agreement. However, if any provision of this Agreement, or any part thereof, shall at any time be held to be invalid, in whole or in part, under any applicable federal, state or local Law by a court of competent jurisdiction, or by arbitrators or an administrative agency of the federal, state or local government with proper jurisdiction, then such provision or a portion thereof, as appropriate, shall be curtailed and limited only to the extent necessary to bring it within the requirements of the Law and the validity and enforceability of the remaining 1 1087-0009\1 155216v5.doe -44- provisions of this Agreement shall remain in effect and shall in no way be affected, impaired or invalidated, unless the invalidated provision(s) shall uniquely, materially and adversely affect the rights and obligations of a Party to this Agreement. 9.10 Approvals by Agency The Agency's Executive Director shall have the authority to (i) give, in writing, all consents and approvals on behalf of the Agency; (ii) agree in writing to non-substantial modifications to this Agreement and to the documents required by this Agreement on behalf of the Agency; and (iii) extend in writing the deadline for commencement of Construction by up to eight (8) calendar months in the aggregate. The Executive Director shall also have the authority to execute (i) the Agency/County Limited Subordination Agreement (defined in Section 6.7); and (ii) reasonable subordination agreements subordinating the Agency Deed of Trust and Regulatory Agreement to liens securing construction and permanent financing required for the Development, provided the Executive Director shall have reviewed and approved such construction and permanent financing. 9.11 Time of the Essence Time is of the essence of this Agreement. 9.12 Computation of Time Unless otherwise required by a specific provision of this Agreement, time hereunder is to be computed by excluding the first day and including the last day. If the date for performance falls on a Saturday, Sunday, or legal holiday, the date for performance shall be extended to the next business day. 9.13 Calendar Days All references in this Agreement to a number of days in which either Party shall have to consent, approve or perform shall mean calendar days unless specifically stated to be business days. 9.14 Police Power Nothing contained herein shall be deemed to limit, restrict, amend or modify, nor to constitute a waiver or release of, any Laws of City, its departments, commissions, agencies, and boards and the officers thereof and Agency, including, without limitation, any redevelopment or general plan or any zoning ordinances, or any of City's or Agency's duties, obligations, rights or remedies thereunder or pursuant thereto or the general police powers, rights, privileges and discretion of City or Agency in the furtherance of the public health, welfare, and safety of the inhabitants of the City of Temecula, including, without limitation, the right under law to make and implement independent judgments, decisions, and acts regarding planning, development, and redevelopment matters (including, without limitation, approval or disapproval of plans and issuance or withholding of building permits) whether or not consistent with the provisions of this Agreement, or any other documents contemplated hereby (collectively, "City and Agency Rules and Powers"). In the event of any conflict, inconsistency 11087-0009\1155216v5.doc -45- or contradiction between any terms, conditions, or provisions of this Agreement or such other documents, on the one hand, and any such City and Agency Rules and Powers, on the other hand, the latter shall prevail and govern in each case. This Section shall be interpreted for the benefit of City and Agency. 9.15 Estoppel Certificates Any Party hereunder may, from time to time, request the other Party to execute and acknowledge an estoppel certificate or agreement verifying that this Agreement, including any Attachments hereto, is in full force and effect and that no default or defaults have occurred and are continuing as of the date of such certificate or agreement (nor any event which, with the passage of time and the giving of notice would result in a Default or breach under this Agreement), or stating the nature of the default or breach or event, if any. In the event the estoppel certificate discloses such a default, breach or event, it shall also state the manner in which such default, breach and/or event may be cured. The Party requesting such certificate or agreement shall provide the form thereof and, provided such certificate or agreement is in form and substance commercially reasonable, the requested Party shall execute and return the same within fifteen (15) business days after receipt of the final form thereof, and the requesting Party (and, in the case of Developer, its lenders and successors-in-interest as permitted under this Agreement) shall be entitled to rely thereon. 9.16 Further Assurances Each of the Parties hereto shall execute and deliver any and all additional papers, documents, instruments and other assurances and shall to do any and all other acts and things reasonably necessary to carry out the purposes of this Agreement and the intent of the Parties hereto. 9.17 No Mercer No provision of this Agreement shall merge with any transfer of any portion of the Project Site, until such time as a Certificate of Completion is recorded for all of the Improvements to be constructed on the Project Site pursuant to this Agreement. Notwithstanding the foregoing sentence, or any other provision of this Agreement, the following provisions shall not merge with any transfer of any portion of the Project Site, and shall survive issuance of a Certificate of Completion for the Improvements: (a) representations and warranties; (b) indemnity provisions (c) insurance obligations; and (d) those obligations set forth in the Agency Note, Agency Trust Deed, and Agency Regulatory Agreement. 11087-0009\1155216v5.doc -46- 9.18 Waivers and Amendments All modifications, additions or amendments to this Agreement shall be in writing and signed by the Parties hereto. Developer and Agency agree to mutually consider reasonable requests for amendments to this Agreement that may be made by lending parties or institutions, provided the requests are consistent with this Agreement and would not substantially alter the basic business terms included herein. 9.19 Entire Agreement This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto and supersedes all negotiations or previous agreements between the Parties regarding all or any part of the subject matter hereof. 9.20 Counterpart Originals This Agreement may be executed in counterpart originals, each of which is deemed to be an original. This Agreement includes nine (9) Attachments, each of which is incorporated herein by reference, as follows: Attachment No. 1 Legal Description of Site (Including Project Site and TMRM Site) Attachment No. 2 Site Map Attachment No. 3 Schedule of Performance Attachment No. 4 Scope of Development Attachment No. 5 Form of Certificate of Completion Attachment No. 6 Form of Agency Regulatory Agreement, Right of First Offer and Option to Purchase Attachment No. 7 Form of Agency Note Attachment No. 8 Form of Agency Trust Deed Attachment No. 9 Project Budget 11087-0009\1155216v5.doc -47- WITNESS the signatures of the Parties as of the date first set forth above. ATTEST: Susan W. Jones MMC. Agency Secretary APPROVED AS TO FORM: RICHARDS, WATSON & GERSHON Peter Thorson Agency Counsel AGENCY: TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic Ron Roberts By: Agency Chairman DEVELOPER: BRIDGE SC, LLC, a California limited liability company By: BRIDGE Housing Corporation - Southern California, a California nonprofit public benefit corporation, its sole member/manager By: Print Name: Title: 11087-0009\1155216v5.doc -48- ATTACHMENT NO. 1 LEGAL DESCRIPTION The land in the City of Temecula, County of Riverside, State of California, described as follows: TENTATIVE PARCEL MAP NO. 36219, BEING A SUBDIVISION OF THE FOLLOWING: LOT 1 OF TRACT NO. 33891 AS SHOWN ON FILE BOOK 424 PAGES 82 THROUGH 84 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. APN: 959-080-022-5 11087-0009\1155216v5.doc -1- ATTACHMENT NO. 2 SITE MAP [Attached; Parcel 1 is the Project Site; Parcel 2 is the TMRM Site.] 11087-0009\1155216v5.doc -2- ATTACHMENT NO. 3 SCHEDULE OF PERFORMANCE ACTIONS 1. Close of Escrow. [Section 4.6.4] 2. Approval of Management Plan 3. Obtain all permits and approvals for construction of the Improvements 4. Delivery of Construction Contract and Payment and Performance Bonds/Letter of Credit DEADLINE September 24, 2009 October 1, 2010 October 1, 2010 October 1, 2010 5. Commencement of Construction. Developer shall October 1, 2010 commence construction of the Improvements. [Section 5.1] 6. Completion of Construction. Developer shall 15 months after commencement of complete construction of the Improvements. Construction. 7. Issuance - Certificate of Completion. Agency Not later than 10 days after Developer's shall issue Developer a Certificate of Completion. request and upon determination by Agency [Section 5.14] that the Improvements have been completed in conformance with this Agreement. 8. Closing of Permanent Loan and "Completion" 21 months after commencement of Construction. ATTACHMENT NO. 3 SCHEDULE OF PERFORMANCE ATTACHMENT NO. 4 SCOPE OF DEVELOPMENT Construction of 90 multi-family affordable rental units to be managed by BRIDGE Property Management Group. The project includes nine residential buildings, a management and maintenance office, and recreation facilities including a swimming pool, community room, green space, and outdoor play areas for children. The residential buildings will be two stories consisting of five unit types designed to meet the needs of various families. The units range from 690 square feet to 1,117 square feet in size and offer one, two and three bedroom floor plans. The project will have 90 private garages parking spaces, 20 tandem/driveway spaces and 91 open spaces (including handicapped spaces) (total 201) for residents, management employees, and guests. Each unit will have an assigned garage as well as one open parking space available. 1 1087-0009\1 155216v5.doe 4- ATTACHMENT NO. 5 CERTIFICATE OF COMPLETION Recording Requested By and When Recorded Mail To: Temecula Redevelopment Agency of the 43200 Business Park Drive Temecula, California 92590 Attn: (Space Above For Recorder's Use) This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383 C'ERTIFIC'ATE OF COMPLETION This CERTIFICATE OF COMPLETION ("Certificate") is made this day of , 20, by the TEMECULA REDEVELOPMENT AGENCY, public body, corporate and politic ("Agency") in favor of ("Developer"). A. Agency and Developer entered into that certain Owner Participation and Loan Agreement dated as of ("OPA"). All capitalized terms not otherwise defined herein shall have the meanings assigned to them in the OPA. B. Pursuant to the OPA, the Developer agreed to construct certain "Improvements" on the Project Site described in the OPA. The OPA provides, in Section 5.15 thereof, that the Agency shall furnish the Developer with a recordable Certificate of Completion upon satisfactory completion of all of the Improvements in accordance with the OPA. C. Agency has determined that the construction of the Improvements on the Project Site has been satisfactorily performed in accordance with the OPA. NOW, THEREFORE, Agency certifies as follows: 1. The construction of the Improvements on the Project Site has been satisfactorily performed and completed in accordance with the OPA. 2. This Certificate constitutes a conclusive determination of the satisfactory completion of the construction of the Improvements in accordance with the OPA 3. This Certificate shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or deed of trust or any insurer of a mortgage, or deed of trust securing money loaned to finance the Developer or any part thereof. 4. This Certificate is not a Notice of Completion as referred to in California ATTACHMENT NO. 5 CERTIFICATE OF COMPLETION Civil Code Section 3093. 5. Except as stated herein, nothing contained in this instrument shall modify in any way any provisions of the OPA or any other provisions of the documents incorporated herein. IN WITNESS WHEREOF, Agency has executed this Certificate as of the day and year first above written. AGENCY: TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Printed Name: Title: ATTEST: Susan Jones MMC. Agency Secretary APPROVED AS TO FORM: RICHARDS, WATSON & GERSHON, A Professional Corporation Agency General Counsel Peter Thorson ATTACHMENT NO. 5 CERTIFICATE OF COMPLETION ACKNOWLEDGMENT State of California County of On personally appeared (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public before me, (Seal) ATTACHMENT NO. 5 CERTIFICATE OF COMPLETION EXHIBIT A To Certificate of Completion LEGAL DESCRIPTION ATTACHMENT NO. 5 CERTIFICATE OF COMPLETION ATTACHMENT NO. 6 FORM OF REGULATORY AGREEMENT, RIGHT OF FIRST OFFER, AND PURCHASE OPTION Recording Requested By and When Recorded Mail To: Temecula Redevelopment Agency 43200 Business Park Drive Temecula, California 92590 Attn: (Space Above For Recorder's Use) This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383 REGULATORY AGREEMENT, RIGHT OF FIRST OFFER, AND PURCHASE OPTION This REGULATORY AGREEMENT, RIGHT OF FIRST OFFER, AND PURCHASE OPTION ("Agreement") is entered into this day of , 2009, by and between the TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and ("Developer"). WHEREAS, for the purpose, among others, of effectuating the Redevelopment Plan for the Riverside County Redevelopment Project No. 1988-1, as transferred from the County of Riverside to the City of Temecula and the Agency (the "Project Area"), Developer and Agency have entered into that certain Owner Participation and Loan Agreement ("OPA") dated July 28, 2009; and WHEREAS, capitalized terms used in this Regulatory Agreement are as defined in the OPA; and WHEREAS, the Redevelopment Plan (the "Redevelopment Plan") for the Project was approved and assumed by the City Council of the City of Temecula on April 9, 1991, by Ordinance No. 91-11 and 91-15. The Redevelopment Plan is a public record on file in the office of the City Clerk of the City of Temecula and is incorporated herein by this reference; and WHEREAS, Developer owns that certain real property located in the County of Riverside, California more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference, which is located in the Project Area and which, together with the improvements more or hereafter existing thereon, is collectively referenced to herein as the "Project Site"; and WHEREAS, pursuant to the OPA, Developer plans to construct ninety (90) housing units on the Project Site (the "Development"), forty-four (44) of which (pursuant to this Agreement) are to be leased exclusively affordable to Lower Income Households for 55 years after they are completed, as described in the OPA and herein; and 11087-0009\1155216v5.doc -1- WHEREAS, OPA provides for Agency to make a loan to Developer to facilitate the completion of the development, but the closing of such loan is conditioned upon the execution and recordation of this Agreement. NOW, THEREFORE, AGENCY, AND DEVELOPER COVENANT AND AGREE AS FOLLOWS: 1. Developer covenants and agrees (for itself, its successors, assigns, and every successor in interest to the Project Site or any part thereof) that during construction and thereafter, Developer, successors, and assigns shall devote the Project Site (or any part thereof), to the uses specified therefor in the Redevelopment Plan and this Agreement, the OPA, and shall not devote the Project Site to any uses which are inconsistent with this Agreement and applicable City land use entitlements for the Project Site and Improvements. As set forth in the OPA, Developer shall develop on the Project Site the Development, as more specifically described in the Scope of Development attached to the OPA. 2. In addition to the capitalized terms in the OPA, the following terms shall have the indicated meanings: (a) "Affordable Rent" shall have the meaning set forth in California Health and Safety Code Section 50053(b) and Title 25 of the California Code of Regulations Section 6922. (b) "Executive Director" shall mean the Executive Director of the Agency, or his or her designee. (c) "Area-wide Median Income" shall mean the median family income (adjusted for family size) for Riverside County area as annually published by the United States Department of Housing and Urban Development ("HUD") pursuant to Section 8 of the United States Housing Act of 1937, as amended, whichever is lower. If HUD ceases annually to publish median incomes, the parties will agree upon an adequate substitute manner for determining Area- wide Median Income. (d) "Executive Director" shall mean the Executive Director of Agency, or his or her designee. (e) "Developer" shall mean BRIDGE SC, LLC, a California limited liability company, its successors and assigns, and all successors to any interest in the Project Site. (f) "Lower Income Households" shall mean households whose income does not exceed fifty percent (50%) of Area-wide Median Income. 3. Developer shall assure that forty-four (44) of the units in the Development are used, operated, occupied, and rented and/or leased exclusively to Lower Income Households at Affordable Rents (the "Restricted Units"). 4. Developer shall submit an annual report ("Annual Report") to Agency and Commission, which contains the information required by Health and Safety Code Section 33418. 11087-0009\1155216v5.doc -2- The Annual Report shall include information for each and all of the rental units, including: (a) move-in date, (b) rental rate, (c) household income, (d) family size for each unit, all for the applicable annual reporting period. The household income information shall be supplied by the tenant household in a certified statement on a form provided by Agency, or by the form used by the Tax Credit Allocation Committee (provided it includes information sufficient to enable the Agency to verify Developer's compliance with this Agreement). Developer shall submit the Annual Report on or before the first September 1 following the issuance and recording of the Certificate of Completion for the Development and each September 1 thereafter for the term of this Agreement. 5. (a) Pursuant to the OPA, Developer is required to submit to the Executive Director a Management Plan for the Development in a form acceptable to the Executive Director, and including but not limited to, the components listed in Section 6.3 of the OPA. The Management Plan, including approved amendments, shall remain in effect for the term of this Agreement. The Management Plan and any of its component plans or agreements may be amended by Developer only with the prior approval of the Executive Director. (b) If at any time during the term of this Agreement the Agency Executive Director determines that the Development is not being managed or maintained in a manner consistent with well-managed housing developments or in violation of the OPA or the approved Management Plan, the Executive Director may send written notice thereof to Developer, describing the manner in which management of the Development is not being satisfactorily maintained. If Developer fails to cure the failure within thirty (30) days after such written notice, then the Executive Director may require Developer to change management practices or to terminate the management contract and retain a different management agent, approved by Executive Director. The management agreement shall include a provision that it shall be subject to termination by Developer without penalty, upon not less than thirty (30) days prior written notice, if Agency shall request Developer (i) to exercise such right of termination, and (ii) to make immediate arrangements satisfactory to Agency for continuing management of the Development. Developer may change the management agent at any time, with the prior written approval of the Executive Director. 6. After the issuance of a Certificate of Completion for the Development, as provided in Section 5.14 of the OPA, Developer shall not make or permit to be made any material structural additions or modifications to the exterior of any of the Improvements required to be constructed on the Project Site pursuant to the OPA, or permit a use other than as set forth herein, without the prior written consent of Agency. T During construction and thereafter, Developer shall maintain the Improvements on the Project Site and shall keep the Project Site free from any accumulation of debris or waste materials. Maintenance shall include the interior and exterior of Project Site and Improvements in a decent, safe and sanitary manner, and the standard of maintenance of comparable affordable housing rental apartment projects within Riverside County. If at any time Developer fails to maintain the Project Site and Improvements in accordance with this Agreement and such condition is not corrected within five (5) days after written notice from Executive Director with respect to graffiti, debris, waste material, and general maintenance, or thirty (30) days after written notice with respect to landscaping and building improvements, then Agency, in addition 1 1087-0009\1 155216v5.doe -3- to whatever remedy it may have at law or at equity, shall have the right to enter upon the applicable portion of the Project Site and perform all acts and work necessary to protect, maintain, and preserve the Project Site and Improvements and landscaped areas thereon, and to attach a lien upon the Project Site, or to assess the Project Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by Agency and/or costs of such cure, including a reasonable administrative charge, which amount shall be promptly paid by Developer to Agency upon demand. (a) Developer shall also maintain in good condition any landscaping required to be planted under the Scope of Development. All landscaping areas shall be maintained in a healthy condition and be cared for in a regular manner with an ongoing maintenance schedule. Landscaping shall be irrigated as needed. (b) The Development shall be maintained in good condition at all times. Driveways and walkways shall be smooth, free of undue cracks or potholes; they shall be clean and free of debris. The grounds shall be well kept, mowed and trimmed and free of debris. Regular trash removal shall also include the removal of any debris or foreign materials from the grounds. (c) All lights and fixtures shall be kept in good working order. (d) All residential structures and garages shall be well-maintained and attractive. The condition of the structures shall be inspected periodically to ensure compliance. (e) Private patio areas and balconies shall be maintained and not be used for storage. (f) All carports and garages shall be maintained for parking of operable vehicles and shall not be used for storage or for inoperable vehicles. 8. Developer covenants and agrees for itself, its successors, assigns and every successor in interest to the Project Site or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, religion, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project Site nor shall Developer itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Project Site. All deeds, leases or contracts entered into by Developer that relate to the Project Site or any portion thereof shall contain and be subject to substantially the following nondiscrimination or nonsegregation clauses: (1) In deeds: "The grantee herein covenants by and for and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 11087-0009\1155216v5.doc -4- 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the California Government Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." (2) In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and that this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein leased. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the California Government Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." (3) In contracts: "There shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land. 11087-0009\1155216v5.doc -5- Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the California Government Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." 9. In amplification and not in restriction of the provisions set forth herein above, it is intended and agreed that Agency shall be deemed a beneficiary of the covenants and agreements provided herein above both for and in their own right and also for the purposes of protecting the interests of the community and the Project Area. All covenants without regard to technical classification or designation shall be binding for the benefit of Agency, and such covenants shall run in favor of Agency for the entire period during which such covenants shall be in force and effect, without regard to whether Agency is, has, or remains an owner of any land or interest therein to which such covenants relate. Agency shall have the right, in the event of any breach of any such covenant or agreement, after delivery of notice and expiration of the cure period discussed in the OPA, to exercise all the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach of covenant or agreement(s). 10. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest permitted by the OPA; provided however, that any subsequent Developer of the Project Site shall be bound by such remaining covenants, conditions, restrictions, limitations, and provisions, whether such Developer's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 11. Intentionally Omitted. 12. After the issuance of the Certificate of Completion, Developer shall continue to maintain insurance for the Development and Project Site as required by the OPA (Section 5.10), or as subsequently modified by the Executive Director or his risk management designees and such shall remain in effect for the full term of the this Agreement. 13. After the issuance of the Certificate of Completion the indemnification provisions of the OPA shall remain in full force and effect as to Losses and Liabilities between and among Agency, City, and Developer and such shall remain in effect for the full term of this Agreement. 14. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on Developer and any successor in interest to the Project Site or any part thereof for the benefit and in favor of Agency and its successors and assigns, and the City. Except as set forth below, the covenants contained in this Agreement shall remain in effect for fifty-five (55) years after recordation of a Certificate of Completion for the Development. The covenants against discrimination (as described in Paragraph 8) shall remain in perpetuity. 1 1087-0009\1 155216v5.doe -6- 15. AGENCY RIGHT OF FIRST OFFER In consideration for Agency entering into the OPA, and for other good and valuable consideration received by Developer, Developer hereby grants to Agency the right to make Developer a first offer to purchase the Project Site if the Developer desires to transfer the Property ("First Offer Right") at the Agency Purchase Price (defined in the immediately following sentence). The "Agency Purchase Price" shall be the fair market value of the Project Site, as determined by an appraisal prepared by an independent appraiser reasonably agreed upon by the Agency and the Developer who has at least ten (10) years experience appraising residential developments in Riverside County (and Agency and Developer shall each pay 50% of the cost of the appraisal). The Agency may credit outstanding principal balance of and accrued interest on the Agency Loan made to Developer under the OPA against the purchase price. The First Offer Right shall be subordinate to the option and right of first refusal granted to the managing general partner of Developer, or its affiliate, and described in Developer's limited partnership agreement, as amended (the "Tax Credit Option"). The First Offer Right shall continue until the first (1st) anniversary of the maturity of the Agency Loan ("First Offer Term"). The First Offer Right shall survive the expiration of the Term of this Regulatory Agreement. Prior to listing the Project Site for sale, marketing the Project Site for sale, or soliciting any offers for sale of the Project Site, or if an unsolicited offer is received then prior to negotiating with the offeror and provided Developer desires to transfer the Project Site, Developer shall promptly notify the Agency in writing (the "Developer Intent to Transfer Notice"). In the event that the Developer delivers the Developer Intent to Transfer Notice to the Agency during the term of the Tax Credit Option, the purchase price under the Agency First Offer Right shall be at least equal to the "debt plus taxes" price under the Tax Credit Option. The Agency may exercise the First Offer Right by delivering Notice to Developer of the Agency's desire to acquire fee title to the Project Site from Developer pursuant to the First Offer Right ("Notice of First Offer Exercise") within sixty (60) days after receiving the Developer Intent to Transfer Notice. The Notice of First Offer Exercise shall be accompanied by a form of purchase and sale agreement acceptable to Agency for Developer's review and reasonable approval. The escrow for the conveyance of fee title to the Project Site from Developer to Agency shall close within sixty (60) days after the date of the Notice of First Offer Exercise. Developer shall convey the Project Site to the Agency free of all liens securing monetary or performance obligations of the Developer, except for liens for property taxes and assessments not yet due, and free from all other encumbrances not approved by Agency and not shown in Agency's lender's title policy as being prior and superior to Agency's deed of trust. If the Agency does not exercise its Right of First Offer, and the Developer does not sell the Project Site within one hundred fifty (150) days thereafter, then this Section 15 (including this sentence) shall again apply, such that the Agency's Right of First Offer shall be periodically reinstated whenever the Developer does not timely consummate a sale. 11087-0009\1155216v5.doc -7- 16. AGENCY PURCHASE OPTION In consideration for Agency entering into the OPA and for other good and valuable consideration received by Developer, Developer hereby grants to Agency the exclusive right and option to purchase the Site at the Agency Purchase Price (defined in the immediately following sentence) ("Purchase Option"). The "Agency Purchase Price" shall be the fair market value of the Site, as determined by an appraisal prepared by an appraiser reasonably selected by Agency and Developer who has at least 10 years experience appraising residential developments in Riverside County. The Agency may credit outstanding principal balance of and accrued interest on the Agency Loan made to Developer under the OPA against the Agency Purchase Price. The Purchase Option shall commence on the date that is fifty-five (55) years after the recordation of a Certificate of Completion of the Development (executed by the Agency) and shall continue until the date that is two (2) years thereafter ("Purchase Option Term"). The Purchase Option shall survive the expiration of the Term of this Regulatory Agreement. The Agency may exercise the Purchase Option by delivering Notice to Developer of the Agency's desire to acquire fee title to the Site from Developer pursuant to the Option ("Notice of Purchase Option Exercise") during the Purchase Option Term. The Notice of Purchase Option Exercise shall be accompanied by a form of purchase and sale agreement acceptable to Agency for Developer's review and reasonable approval. The escrow for the conveyance of fee title to the Site from Developer to Agency shall close within sixty (60) days after the of the Notice of Option Exercise. Owner shall convey the Site to the Agency free of all liens securing monetary or performance obligations of the Developer, except for liens for property taxes and assessments not yet due, and free from all other encumbrances not approved in writing by Agency and not shown in Agency's lender's title policy as being prior and superior to Agency's deed of trust. 1 1087-0009\1 155216v5.doe -8- IN WITNESS WHEREOF, Agency and Developer have executed this Agreement as of the date first set forth above. ATTEST: Susan Jones MMC Agency Secretary APPROVED AS TO FORM: RICHARDS, WATSON & GERSHON Peter Thorson Agency Counsel "AGENCY": TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Print Name: Title: "DEVELOPER": a By: Print Name: Title: 1 1087-0009\1 155216v5.doe -9- ACKNOWLEDGMENT State of California County of On personally appeared (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public (Seal) ACKNOWLEDGMENT State of California County of On personally appeared (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Signature of Notary Public before me, before me, 11087-0009\1155216v5.doc -14- EXHIBIT A to Agency Regulatory Agreement LEGAL DESCRIPTION OF PROJECT SITE 11087-0009\1155216v5.doc -11- ATTACHMENT NO. 7 FORM OF AGENCY PROMISSORY NOTE PROMISSORY NOTE SECURED BY DEED OF TRUST $3,784,000.00 Temecula, California 3% Simple Interest , 2009 FOR VALUE RECEIVED, ("Borrower") hereby promises to pay to the TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), or order, a principal amount not to exceed THREE MILLION SEVEN HUNDRED EIGHTY-FOUR THOUSAND AND NO/100 DOLLARS ($3,784,000.00) or so much thereof as may be advanced by Agency to the Borrower pursuant to that certain Owner Participation and Loan Agreement dated July 28, 2009 between the Borrower and Agency ("OPA"), plus interest as provided below. Unless, defined differently herein, all defined terms shall have the meaning set forth in the OPA. This Note is made pursuant to the terms of the OPA, a Regulatory Agreement of even date herewith (the "Regulatory Agreement") and a deed of trust (the "Agency Trust Deed") of even date herewith given by the Borrower to Agency for the purpose of securing this Note (collectively, "Agency Agreements"). The Agency Agreements are public records on file in the offices of Agency, and the provisions of these documents are incorporated herein by this reference. 1. This Note evidences the obligation of the Borrower to Agency for the repayment of funds loaned to the Borrower by Agency ("Agency Loan"), to assist in financing the acquisition and redevelopment of the real property described in the Agency Trust Deed ("Project Site"). 2. The Agency Loan shall accrue three percent (3%) simple interest, commencing on the date of this Note. 3. Principal and accrued interest shall be repaid as described in Section 7.2.3 of the OPA. Additionally, all principal and accrued interest shall, at the election of the Agency with or without notice, become due and payable immediately if the Development, or any portion thereof or interest therein, is sold, transferred, assigned or refinanced without the prior written approval of Agency, or if the OPA is terminated pursuant to the provisions thereof, or in the event of any default under the Regulatory Agreement that is not cured within the applicable time limits. All principal and accrued interest on the Agency Loan shall be repaid fifty-five (55) years from the date of recordation of the deed of trust securing the Permanent Loan. 4. This Note is payable at the principal office of Agency, 43200 Business Park Drive, Temecula, California 92590, Attn: Luke Watson, or at such other place as the holder hereof may inform the Borrower in writing, in lawful money of the United States. 5. The Borrower waives presentment for payment, demand, protest, and notices of dishonor and of protest; the benefits of all waivable exemptions; and all defenses and pleas on the ground of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice. The 11087-0009\1155216v5.doc 4- Borrower hereby agrees to pay all costs and expenses, including reasonable attorney's fees, which may be incurred by the holder hereof, in the enforcement of this Note or any term or provision hereof. 6. This Note is nonrecourse to Borrower. Neither the Borrower, nor any general or limited partner of the Borrower, shall have any direct or indirect personal liability for payment of the principal of, and interest on, the Loan or the performance of the covenants of the Borrower under the OPA, the Note, and the Deed of Trust. The sole recourse of the Agency with respect to the principal of, and interest on, the Note and defaults by Borrower in the performance of its covenants under the OPA, the Note, and the Deed of Trust shall be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability shall (a) limit or impair the enforcement against all such security for the Note of all the rights and remedies of the Agency hereunder, or (b) be deemed in any way to impair the right of the Agency to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; and further, nothing contained herein is intended to relieve the Borrower of liability for (i) fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or other charges which may create liens on the property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by Borrower other than in accordance with the Deed of Trust; or (iv) the misappropriation of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the property. BORROWER: By: Print Name: Title: 11087-0009\1155216v5.doc -2- ATTACHMENT NO. 8 FORM OF AGENCY DEED OF TRUST Recording Requested By and When Recorded Mail To: Temecula Redevelopment Agency 43200 Business Park Drive Temecula, CA 92590 Attn: This document is exempt from the payment recording fee pursuant to Government Code Section 27383. DEED OF TRUST With Assignment of Rents, Security Agreement, and Fixture Filing This DEED OF TRUST is made this , 2009, by and between ("Trustor"), FIDELITY NATIONAL TITLE COMPANY ("Trustee"), and the TEMECULA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Beneficiary"). Trustor grants, transfers, and assigns to Trustee in trust, upon the trusts, covenants, conditions and agreements and for the uses and purposes hereinafter contained, with power of sale, and right of entry and possession, all of Trustor's interest in that real property in the County of Riverside, State of California, described in Exhibit "A" attached hereto and incorporated herein by this reference; Together with the rents, issues, and profits thereof, subject, however, to the right, power, and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues, and profits; and together with all buildings and improvements of every kind and description now or hereafter erected or placed thereon, and all fixtures, including but not limited to all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, laundry equipment, steam and hot-water boilers, stoves, ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels, cabinets, refrigerating plant and refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be deemed to be permanently affixed to and a part of the realty; and Together with all building materials and equipment now or hereafter delivered to the premises and intended to be installed therein; and Together with all articles of personal property owned by the Trustor now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the lands described which are necessary for the comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all 11087-0009\1155216v5.doc -I- other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to the building or buildings in any manner. To have and to hold the property hereinbefore described together with appurtenances to the Trustee, its or his successors and assigns (the "Property"). FOR THE PURPOSE of securing performance of each agreement and covenant of Trustor herein or contained in that certain Owner Participation and Loan Agreement (the "OPA" or "Agreement") dated , 2009, between Trustor and Beneficiary, and that certain Agency Regulatory Agreement of even date herewith (the "Regulatory Agreement"), and securing payment of indebtedness of the Trustor to the Beneficiary in the principal sum of $3,784,000, as evidenced by that certain promissory note ("Note") of even date herewith. The Note, Agreement, and Regulatory Agreement (collectively, the "Agreements") are incorporated herein by reference and this conveyance shall secure any and all extensions, amendments, modifications or renewals thereof however evidenced. AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES: 1. That it faithfully perform each and every covenant contained in the Agreements; 2. That it will not permit or suffer the use of any of the Property for any purpose other than the use described in the Agreements as they may be amended from time to time. 3. That all rents, profits and income from the Property are hereby assigned to the Beneficiary for the purpose of securing the obligations of Trustor pursuant to the Agreements. Permission is hereby given to Trustor so long as no default exists hereunder, to collect such rents, profits and income for use in accordance with the provisions of the Agreements. 4. That upon default hereunder or under the aforementioned Agreements, remaining uncured after thirty (30) days from receipt of written notice thereof from Beneficiary, or, if the nature of the default is such that more than thirty (30) days are reasonably required for its cure, then the Trustor has not commenced a cure within the 30-day period and thereafter diligently prosecuted such cure to completion, Beneficiary shall be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession and protect the Property and operate same and collect the rents, profits and income therefrom; 5. That the Trustor will keep the improvements now existing or hereafter erected on the Property insured against loss by fire and such other hazards, casualties, and contingencies as may be required from time to time by the Beneficiary (earthquake insurance not required), and all such insurance shall be evidenced by standard fire and extended coverage insurance policy or policies. In no event shall the amounts of coverage be less than one hundred (100%) percent of the insurable value or not less than the unpaid balance of the insured Deed of Trust, whichever is less, and in default thereof the Beneficiary shall have the right to effect insurance. Such policies shall be endorsed with standard mortgage clause with loss payable to the Beneficiary; 6. To pay, before delinquency, any taxes and assessments affecting the Property including assessments on appurtenant water stock; when due, all encumbrances, charges and 11087-0009\1155216v5.doc -2- liens, with interest, on the Property or any part thereof which appear to be prior or superior hereto; all costs, fees, and expenses of this Trust; 7. To keep the Property in good condition and repair, not to remove or demolish any buildings thereon unless authorized by the Agreements; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged, or destroyed thereon, whether or not insurance proceeds are available to cover any part of the cost of such restoration and repair; to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting the Property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof, not to commit, suffer or permit any act upon the Property in violation of law and/or covenants, conditions and/or restrictions affecting the Property; not to permit or suffer any substantial alteration of or addition to the buildings or improvements hereafter constructed in or upon the Property without the consent of the Beneficiary; 8. To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear; 9. Should Trustor fail to do any act as herein provided, then Beneficiary or Trustee, but without obligation to do so and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. Beneficiary or Trustee being authorized to enter upon the Property for such purposes, may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; may pay, purchase, contest, or compromise any encumbrance, charge, or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, may pay necessary expenses, employ counsel, and pay his reasonable fees; 10. The Beneficiary shall have the right to pay fire and other property insurance premiums when due should Trustor fail to make any required premium payments. All such payments made by the Beneficiary shall be added to the principal sum secured hereby; 11. To pay immediately and without demand all sums so expended by Beneficiary or Trustee, under permission given under this Deed of Trust, with interest from date of expenditures at the rate of the Eleventh Federal Reserve District Cost of Funds; 12. The Trustor further covenants that it will not voluntarily create, suffer, or permit to be created against the Property any lien or liens except as permitted by the terms of the Promissory Note and Loan Agreement and further that it will keep and maintain the property free from the claims of all persons supplying labor or materials which will enter into the rehabilitation or construction of any and all buildings now being rehabilitated or constructed or to be rehabilitated or constructed on the Property, or will cause the release of or will provide a bond against any such liens within ten (10) days of Trustor's receipt of notice of the lien or liens. Nothing herein contained shall be deemed to prohibit the Trustor from contesting the validity or amounts of any tax assessment, encumbrance or lien, nor to limit the remedies available to the Trustor; 13. That the improvements upon the Property, and all plans and specifications, 11087-0009\1155216v5.doc -3- comply with all municipal ordinances and regulations and all other regulations made or promulgated, now or hereafter, by lawful authority, and that the same will comply with all such municipal ordinances and regulations and with the rules of the applicable fire rating or inspection organization, bureau, association or office; IT IS MUTUALLY AGREED THAT: 14. Should the Property or any part thereof be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any other manner, the Beneficiary shall be entitled subject to the rights of the holder of the first deed of trust to all compensation, awards, and other payments or relief therefor, and shall be entitled at its option to commence, appear in and prosecute in its own name, any action or proceedings, or to make any compromise or settlement, in connection with such taking or damage. All such compensation, awards, damages, rights of action and proceeds, including the proceeds of any policies of fire and other insurance affecting the Property, are hereby assigned to the Beneficiary subject to the rights of the holder of the first deed of trust. After deducting therefrom all its expenses, including attorneys' fees, and if Trustor is not in default, Beneficiary shall apply all such proceeds to restoring the Property, or in the event of Trustor's default or in the event Trustor determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount of principal and interest due under the Note. Any balance of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor. 15. Upon default by Trustor in making any payments provided for herein or in the promissory note secured hereby, or if Trustor shall fail to perform any covenant or agreement in this Deed of Trust after receiving thirty (30) days prior written notice of such failure from Beneficiary, and if such default is not cured within thirty (30) days after receipt of written notice thereof from Beneficiary, or, if the nature of the default is such that more than thirty (30) days are reasonably required for its cure, then the Trustor has not commenced a cure within the 30- day period and thereafter diligently prosecuted such cure to completion, the Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale, and of written notice of default and of election to cause the property to be sold, which notice Trustee shall cause to be duly filed for record and the Beneficiary may foreclose this Deed of Trust in the manner provided by law. Beneficiary shall also deposit with Trustee this Deed, the notes and all documents evidencing expenditures secured hereby; 16. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in the notice of sale, either as a whole or in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser its Deed conveying the Property so sold, but without any covenant or warranty, express or implied. The recitals in the Deed of any matters or facts shall 11087-0009\1155216v5.doc -4- be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of this trust including therein reasonable Trustee's fees or attorneys' fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost of any search and/or other evidence of title procured in connection with such sale and revenue stamps on Trustee's Deed, if the latter is not paid by buyer; (3) all sums expended under the terms hereof, not then repaid, with accrued interest at the rate specified in the notes; (4) all other sums then secured hereby; and (5) the remainder, if any, to the person or persons legally entitled thereto; 17. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed and its place of record, which, when duly recorded in the proper office of the county or counties in which the Property is situated, shall be conclusive proof of proper appointment of the successor trustee; 18. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed is hereby waived to the full extent permissible by law; 19. Upon written request of Beneficiary stating that all obligations secured hereby have been performed, and upon surrender of this Deed of Trust to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the Property then held hereunder. The recitals in such reconveyance of any matters or fact shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto"; 20. The trust created hereby is irrevocable by Trustor; 21. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any future Developer and holder including pledges, of the notes secured hereby. In this Deed, whenever the context so requires, the masculine gender includes the feminine, and the singular number includes the plural; 22. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee; 23. The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at the address provided in the OPA or to such other address as Trustor may provide in writing to Trustee from time to time. 11087-0009\1155216v5.doc -5- 24. All principal and accrued interest under the Promissory Note shall, at the election of Beneficiary with or without notice, become due and payable immediately if the Property, or any portion thereof or interest therein, is sold, transferred, assigned or refinanced without the prior written approval of Beneficiary. 25. The Loan is nonrecourse to Borrower. Neither the Borrower, nor any general or limited partner of the Borrower, shall have any direct or indirect personal liability for payment of the principal of, and interest on, the Loan or the performance of the covenants of the Borrower under the OPA, the Note, and the Deed of Trust. The sole recourse of the Agency with respect to the principal of, and interest on, the Note and defaults by Borrower in the performance of its covenants under the OPA, the Note, and the Deed of Trust shall be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability shall (a) limit or impair the enforcement against all such security for the Note of all the rights and remedies of the Agency hereunder, or (b) be deemed in any way to impair the right of the Agency to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; and further, nothing contained herein is intended to relieve the Borrower of liability for (i) fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or other charges which may create liens on the property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by Borrower other than in accordance with the Deed of Trust; or (iv) the misappropriation of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the property. IN WITNESS WHEREOF the Trustor has executed this Deed of Trust as of the day and year set forth above. TRUSTOWDEVELOPER By: Print Name: Title: 1 1087-0009\1 155216v5.doe -6- ACKNOWLEDGMENT State of California County of On personally appeared (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public (Seal) ACKNOWLEDGMENT State of California County of On personally appeared (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Signature of Notary Public before me, before me, 11087-0009\1155216v5.doc -7- EXHIBIT A To Agency Deed of Trust LEGAL DESCRIPTION 11087-0009\1155216v5.doc -8- ATTACHMENT NO. 9 PROJECT BUDGET Totals Per Unit 1. Direct Costs 1 Off-Site Improvements $0 $0 On-Sites/Landscaping 2 $1,625,592 $18,062 Parking $0 $0 Shell Construction3 $9,111,728 $101,241 FF&E/Amenities $305,000 $3,389 Contingency $550,544 $6,117% Total Direct Costs $11,592,864 $128,810 II. Indirect Costs Architecture & Engineering $701,500 $7,794 Permits & Fees 2 $2,165,939 $24,066 Legal & Accounting $93,000 $1,033 Taxes & Insurance $143,993 $1,600 Developer Fee $1,400,000 $15,556 Marketing/Lease-Up $135,000 $1,500 Contingency $ 492,811 $5,476 Total Indirect Costs $5,132,243 $57,025 III. Financing Costs Loan Fees $160,082 $1,779 City Deferred Interest $85,554 $951 Interest During Construction $437,826 $4,865 Interest During Lease-Up $187,609 $2,085 Title/Recording/Escrow $35,000 $389 TCAC Fees $125,972 $1,400 Syndication Fees $65,000 $722 Operating Lease-Up/Reserves $159,316 $1,770 Total Financing Costs $1,256,359 $13,960 IV. Total Development Costs $17,981,466 $199,794 1 Per the Developer, Excludes payment of prevailing wages. 2 Per Developer; not verified by KMA or City. 3 Includes pro rata portion of general conditions, profit, and overhead Includes "Personal Property" of $180,000 11087-0009\1155216v5.doc -I- Excluding Land V. Acquisition Costs Land Acquisition Costs $3,265,108 $36,279 Land Related Costs $281,050 $3,123 Total Acquisition Costs $3,546,158 $39,402 Total Development Costs $21,527,624 $239,196 11087-0009\1155216v5.doc -2- TABLE OF CONTENTS PAGE(S) ARTICLE 1 DEFINITIONS 2 1.1 Definitions 2 ARTICLE 2 PURPOSE OF AGREEMENT; PARTIES; REPRESENTATIONS AND WARRANTIES 8 2.1 Purpose of the Agreement 8 2.2 Agency 8 2.3 Developer 8 2.4 Developer Representations 9 2.5 Prohibition Against Transfer 9 ARTICLE 3 SPECIAL PROVISIONS 11 3.1 Schedule of Performance 11 3.2 Delegation to Executive Director 11 3.3 Construction Contract 12 ARTICLE 4 CLOSING OF THE AGENCY LOAN 12 4.1 Conditions Precedent 12 4.2 Condition of Title 13 4.3 Agency Title Insurance 14 4.4 Escrow 14 4.5 Relocation 16 ARTICLE 5 DEVELOPMENT OF THE SITE 16 5.1 Scope of Development 16 5.2 Cost of Construction 17 5.3 City and Other Governmental Permits 17 5.4 Zoning and Land Use Requirements; Environmental Review 17 5.5 Agency Rights of Access During Construction 18 5.6 Local, State and Federal Laws 18 5.7 Indemnification 18 5.8 Developer Insurance Requirements 19 5.9 Developer's Contractor's Construction Insurance Requirements 24 5.10 Non-Discrimination During Construction 28 11087-0009\1155216v5.doc -1- TABLE OF CONTENTS (CONT'D PAGE(S) 5.11 Taxes, Assessments, Encumbrances and Liens ....28 5.12 Security Financing, Rights of Holders 29 5.13 Certificate of Completion 30 ARTICLE 6 USES OF THE SITE 30 6.1 Uses 30 6.2 Affordable Housing 31 6.3 Management Plan 31 6.4 Maintenance of the Project Site and Improvements 32 6.5 Obligation to Refrain from Discrimination; Form of Non-discrimination Clauses 33 6.6 Prohibition Against Walk-Up Services ....34 6.7 Agency Regulatory Agreement 34 6.8 Effect and Duration of Covenants 35 ARTICLE 7 AGENCY FINANCIAL ASSISTANCE 35 7.1 Method of Financing Development 35 7.2 Agency Loan 37 ARTICLE 8 EVENTS OF DEFAULT AND RIGHTS OF TERMINATION AND OTHER REMEDIES 40 8.1 Events of Defaults - General 40 8.2 Rights and Remedies are Cumulative 40 8.3 Remedies 41 8.4 Institution of Legal Actions 41 8.5 Applicable Law and Attorneys' Fees 41 8.6 Acceptance of Service of Process 41 ARTICLE 9 GENERAL PROVISIONS 41 9.1 Notices, Demands and Communications Between the Parties 41 9.2 Nonliability of Officials, Officers, and Employees 42 9.3 Enforced Delay; Extension of Times of Performance 43 9.4 Plans and Data 43 9.5 No Real Estate Commissions 43 9.6 Successors and Assigns 44 9.7 Relationship of the Parties 44 9.8 Text to Control; Interpretation 44 11087-0009\1155216v5.doc -11- TABLE OF CONTENTS (CONT'D PAGE(S) 9.9 Severability 44 9.10 Approvals by Agency 45 9.11 Time of the Essence 45 9.12 Computation of Time 45 9.13 Calendar Days 45 9.14 Police Power 45 9.15 Estoppel Certificates 46 9.16 Further Assurances 46 9.17 No Merger 46 9.18 Waivers and Amendments 47 9.19 Entire Agreement 47 9.20 Counterpart Originals 47 1 1087-0009\1 155216v5.doe -iii- Redevelopment Agency of the City of Temecula P.O. Box 9033, Temecula, CA 92589-9033 Initial Study of Environmental Impact Summerhouse Bridge Housing Project Project Title Bridge SC, LLC Lead Agency Name and Address Redevelopment Agency of the City of Temecula P.O. Box 9033, Temecula, CA 92589-9033 Contact Person and Phone Number Luke Watson (951) 694-6400 Project Location The project is located on the northwest corner of Margarita Road and Dartolo Road in the City of Temecula. Project Sponsor's Name and Address Bridge SC, LLC General Plan Designation Professional Office Zoning Professional Office Description of Project The proposed project is to construct 110 units affordable to persons of low or moderate income on a partially developed 7.32 acre site The Bridge portion of the Project will consist of an Owner Participation Agreement providing certain funds to Bridge and the development of approximately 90 units of which 44 will be restricted to for rents affordable to persons of lower income. The remaining 20 units will be developed by Temecula Murrieta Rescue Mission, Inc., pursuant to an Disposition and Development Agreement with the Agency providing certain development funds and restricting the units to rents affordable to persons of lower income. The physical development of the Project will be the same as the prior project on this Site, PA05-0235, other than certain minor adjustments in the size of certain units. Surrounding Land Uses and Setting The project site is specifically bounded by: De Portola Road and vacant land to the north; Margarita Road and a large commercial center which includes a full-service grocery store (Albertsons/Sav- on), Home Depot, service retail (optical, hair, nails, beauty supply), restaurants, bank, and real estate offices to the east; Dartolo Road and a signalized intersection at Margarita Road, a BP gas station and small market to the south; and a domestic well station and vacant land that is a proposed hospital site to the west Other public agencies whose approval City of Temecula is required Initial Study Summerhouse Project -1- Environmental Factors Potentially Affected None of the environmental factors described below would be potentially affected by this Project as all of the potential impacts were mitigated by the approval of PA05-0236 approved by the Planning Commission on May 18, 2006 and the Mitigated Negative Declaration approved in connection therewith. PA05-0236 is a nearly identical project on the same site with the only exception being that the units will be available to persons of low and moderate income (as restricted by the Owner Participation and Loan Agreement) rather than to seniors. Aesthetics Mineral Resources Agriculture Resources Noise Air Quality Population and Housing Biological Resources Public Services Cultural Resources Recreation Geology and Soils Transportation/Traffic Hazards and Hazardous Materials Utilities and Service Systems Hydrology and Water Quality Mandatory Findings of Significance Land Use and Planning None Initial Study Summerhouse Project -2- DETERMINATION OF NO SUBSEQUENT ENVIRONMENTAL REVIEW I find that the approval of the "Owner Participation and Loan Agreement" between the Agency and Bridge SC, LLC, constitutes an action by the Agency to implement its Implementation Plan adopted by the Agency that includes a Housing Assistance Plan by acquiring interests in housing units to assure they are affordable to persons of low and very low income. Therefore, I find that the Project is exempt from the provisions of the California Environmental Quality Act pursuant to Section 15326 of the CEQA Guidelines (Title 14 of the California Code of Regulations). Additionally, I find that on the basis of this Initial Study, that the prior Initial Study and Mitigated Negative Declaration for PA05-0235 (approved by the Planning Commission on May 18, 2006) are sufficient for the proposed Project and further environmental review is not required pursuant to Sections 15162 and 15163 of the CEQA Guidelines (14 Cal. Code of Regs.) based on the following findings: A. No substantial changes are proposed in the Project which will require major revisions of the previous Mitigated Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; B. No substantial changes have occurred with respect to the circumstances under which the Project is undertaken which will require major revisions of the previous Mitigated Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or C. No new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous Mitigated Negative Declaration was adopted, shows any of the following: (1) The project will have one or more significant effects not discussed in the previous Mitigated Negative Declarations; (2) Significant effects previously examined will be substantially more severe than shown in the previous Mitigated Negative Declaration; (3) No mitigation measures or alternatives previously found not to be feasible would in fact be feasible, or would substantially reduce one or more significant effects of the Project; or (4) No mitigation measures or alternatives which are considerably different from those analyzed in the previous Mitigated Negative Declaration would substantially reduce one or more significant effects on the environment. D. The Mitigation Monitoring Program adopted for PA05-0235 shall remain in effect for the Project. Initial Study Summerhouse Project -3- Signature Luke Watson Date July 31, 2009 City of Temecula Initial Study Summerhouse Project -4- 1. AESTHETICS. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Have a substantial adverse effect on a scenic vista? X b. Substantially damage scenic resources, including, but not X limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? C. Substantially degrade the existing visual character or X quality of the site and its surroundings? d. Create a new source of substantial light or glare which X would adversely affect day or nighttime views in the area? Comments from May 2006 Initial Study: 1.a. No Impact: There are no designated scenic vistas on the project site. The project site is adjacent to an arterial street and is located between an existing commercial center and the proposed regional hospital. The proposed project site is located south of De Portola Road, west of Margarita Road, and north of State Route 79 (SR-79). No impact would occur and no mitigation measures would be required. 1.b. No Impact: Refer to Response 1 (a) above for a description of the project site and vicinity. Additionally, the proposed project site does not contain any scenic resources such as trees, rock outcropping, or historic buildings. No impact would occur and no mitigation measures would be required. 1.c. No Impact: Refer to Response 1 (a) and (b) above for a description of the project site and vicinity. The site has been disturbed and structures currently exist on the site. The surrounding area to the north consists of vacant land and residential homes. East of the site is a commercial center and vacant land that has been graded in preparation for development. To the south of the site is an existing gas station and to the west is a site that has been approved for a hospital. The proposed site will not substantially degrade the existing visual character or quality of the site and its surroundings because the surrounding area is developed or is currently being developed and the proposal is consistent with the City of Temecula's General Plan and Development Code Guidelines. Therefore, no impact would occur and no mitigation measures would be required. 1.d. Less Than Significant Impact: The proposed project site is located south of De Portola Road, west of Margarita Road, and north of State Route 79 (SR-79). A commercial center is located to the east of the site across Margarita, and a gas station is located to the south. The proposed project will introduce new lighting to the area that could potentially impact the Mount Palomar Observatory. To mitigate this potential impact, all lighting will be required to conform to the Riverside County Ordinance 655, which prohibits light spillage onto adjacent properties and certain fixtures which have the potential to emit glare into the light. the proposed project site is located within the Mount Palomar Lighting Ordinance. This Ordinance restricts the types of brightness of lighting that can be used, which requires that no additional light and glare occurs. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -5- 2. AGRICULTURE RESOURCES. In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Convert Prime Farmland, Unique Farmland, or Farmland of X Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use? b. Conflict with existing zoning for agricultural use, or a Williamson X Act contract? C. Involve other changes in the existing environment which, due to X their location or nature, could result in conversion of Farmland, to non-agricultural use? Comments from May 2006 Initial Study: At present time the 7.32 acre proposed project site is vacant and developed land 2.a. No Impact: The project site is not designated a Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland). The project site has not been used for agriculture since the incorporation of the City of Temecula in 1989. The development of the proposed project site consisting of a Tentative Tract Map and a Development Plan would not convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland) to non-agricultural use. No impact would occur and no mitigation measures would be required. 2.b. No Impact: The project site is designated as Professional Office by the City of Temecula General Plan and Zoning. Senior housing is allowed and consistent with this designation. The project site is not zoned for an agricultural use. Additionally, the property is not designated under a Williamson Act contract. No impact would occur and no mitigation measures would be required. 2.c. No Impact: Refer to Response 2 (a) above for a description of the project site and vicinity. No impact would occur and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date, other than the fact that a portion of PA05-0235 was constructed and is now vacant. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -6- 3. AIR QUALITY. Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Conflict with or obstruct implementation of the applicable air X quality plan? b. Violate any air quality standard or contribute substantially to an X existing or projected air quality violation? c. Result in a cumulatively considerable net increase of any X criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d. Expose sensitive receptors to substantial pollutant X concentrations? e. Create objectionable odors affecting a substantial number of X people? Comments from May 2006 Initial Study: Regional Air Quality Many air quality impacts which derive from dispersed mobile sources, which are the dominate pollution generators in the basin, often occurs hours later and miles away after photochemical processes have converted primary exhaust pollutants into secondary contaminants such as ozone. The incremental regional air quality impact of an individual project is generally very small and difficult to measure. Therefore, the SCAQMD has developed significance thresholds based on the volume of pollution emitted rather than on actual ambient air quality because the direct air quality impact of a project is not quantifiable on a regional scale. The 1993 SCAQMD CEQA Air Quality Handbook (SCAQMD Handbook) states that any project in the SCAB with daily emissions that exceed any of the identified significance thresholds should be considered as having an individually and cumulatively significant air quality impact. These regional air quality SCAQMD significance thresholds are identified in Table 3 - 1. Local Air Quality To assess local air quality impacts, the significance thresholds are relative to the State standards of 20 parts per million (ppm) for 1-hour Carbon Monoxide (CO) concentration levels and 9 ppm for 8-hour CO concentration levels. If the CO concentration levels with the proposed project are less than the standards, then there is no significant impact to local air quality. If future CO concentrations with the proposed project are above the standards, then the increase due to the project determines if the impact is significant or less than significant. If the proposed project results in an increase of 1 ppm or more for the 1-hour averaging time and 0.45 ppm or more for the 8-hour averaging time, then the proposed project will have a significant impact to local air quality. Initial Study Summerhouse Project -7- Table 3 -1: SCAQMD Regional Pollutant Emission Thresholds of Significance Pollutant Emissions (lbs/day) ROG NOx CO Sox PM10 75 100 550 150 150 Construction Operation 55 55 550 150 150 Source: SCAQMD CEQA Air Quality Handbook 3.a. No Impact: The proposed project site consisting of a Tentative Tract Map and a Development Plan is consistent with the South Coast Air Basin Quality Management District Plan (SCAQMD). The applicant has prepared and submitted an Air Quality Impact Analysis (Revised Air Quality Impact Analysis, DKS Associates, August 25, 2005) which has concluded that the project will not conflict or obstruct implementation of the air quality plan. No impact would occur and no mitigation measures would be required. 3.b. Potentially Significant Unless Mitigation Incorporated: The proposed project site consisting of a Tentative Tract Map and a Development Plan has the potential to violate an air quality standard or contribute substantially to an existing or projected air quality violation. Temporary emissions will result from project- related construction activities. Air emissions will be emitted by construction equipment and fugitive dust will be generated during demolition, site preparation and construction activities. Long-term operational emissions generated by the proposed project will primarily be from motor vehicles. Other emissions will be generated from the combustion of natural gas for space heating, landscaping equipment, and household consumer products. In addition, emissions will be generated by the use of natural gas and oil for the generation of electricity off-site. Based on the information provided in an Air Quality Impact Analysis, the emissions of reactive organic gas (ROG) and nitrogen oxide (NOx) emitted during construction activities would exceed the SCAQMD thresholds of significance; this would be considered a significant short-term impact. The ROG could reach a level of 282.55 Ibslday and NOx could reach 187.92 Ibslday, but with the incorporation of mitigation measures the gases would both be reduced to a less than significant level below the SCAQMD threshold of 75 for ROG and 100 for NOx. The analysis also found that the long-term operations of the proposed project would not result in emissions that would exceed the SCAQMD thresholds of significance (Table J), therefore no significant long- term impact would occur to regional air quality. In addition, the CO levels would not result in a significant long- term impact to local air quality. Table J - Operational Air Pollutant Emissions Activity ROG Pollutant Emissions (lbs/day) NOx CO Sox PM10 Vehicular emissions 4.04 2.98 32.58 0.02 3.14 Natural Gas 0.11 1.40 0.60 0.0 0.0 Landscaping 0.14 0.02 1.26 0.03 0.0 Consumer Products 5.48 0.0 0.0 0.0 0.0 Off-Site Electrical Production 0.02 1.99 0.35 0.21 0.07 Total Unmitigated 9.79 6.39 34.79 0.26 3.21 Emissions SCAQMD Thresholds 55 55 550 150 150 Exceeds Threshold? No No No No No Initial Study Summerhouse Project -8- Source: DKS Associates Note: Calculated from URBEMIS 2002 rev.8.7.0 Based on the information provided in an Air Quality Impact Analysis, with the incorporation of suggested mitigation measures for the construction-related emissions, the proposed project site consisting of a Tentative Tract Map and a Development Plan will not violate any air quality standard or contribute substantially to an existing or projected air quality violation. 3.c. Potentially Significant Unless Mitigation Incorporated: The proposed project site consisting of a Tentative Tract Map and a Development Plan may result in a cumulatively considerable net increase of suspended particles for which the project region is non-attainment under federal and state ambient air quality standards. Air emissions will be emitted by construction equipment and fugitive dust will be generated during demolition, site preparation and construction activities. The ROG could reach a level of 282.55 Ibs/day and NOx could reach 187.92 Ibs/day during construction, but with the incorporation of mitigation measures the gases would both be reduced to a less than significant level below the SCAQMD threshold of 75 for ROG and 100 for NOx. Long-term operational emissions generated by the proposed project will primarily be from motor vehicles. Other emissions will be generated from the combustion of natural gas for space heating, landscaping equipment, and household consumer products. In addition, emissions will be generated by the use of natural gas and oil for the generation of electricity off-site. Based on the information provided in an Air Quality Impact Analysis, with the incorporation of suggested mitigation measures for the construction-related emissions the proposed project site consisting of a Tentative Tract Map and a Development Plan will have a less than significant impact on the exposure of sensitive receptors to substantial pollutant concentrations. 3.d. Potentially Significant Unless Mitigation Incorporated: The proposed project site consisting of a Tentative Tract Map and a Development Plan may expose sensitive receptors to substantial pollutant concentrations temporarily. The nearest sensitive receptors to the project site includes a walk-in medical center located approximately 75 feet south of the southern property line, a single-family home located approximately 120 feet east of the northeast corner of the project site and a single-family home located approximately 175 feet north of the northwest corner of the project site. Temporary emissions will result from project-related construction activities which may expose these sensitive receptors to substantial pollutant concentrations. Air emissions will be emitted by construction equipment and fugitive dust will be generated during demolition, site preparation and construction activities. Long-term emissions will be generated by the proposed project will primarily be from motor vehicles. Other emissions will be generated from the combustion of natural gas for space heating, landscaping equipment, and household consumer products. In addition, emissions will be generated by the use of natural gas and oil for the generation of electricity off-site. Based on the information provided in the Air Quality Impact Analysis, with the incorporation of suggested mitigation measures for the construction-related emissions, the proposed project site consisting of a Tentative Tract Map and a Development Plan will have a less than significant impact on the exposure of sensitive receptors to substantial pollutant concentrations. 3.e. Less Than Significant Impact: The proposed project site consisting of a Tentative Tract Map and a Development Plan will not create any long term objectionable odors affecting a substantial number of people. The project consists of 110 age-restricted condo units and no objectionable odors are anticipated as a result of this project. Temporary impacts typically associated with construction activities are anticipated, however they are considered less than significant with mitigation measures in place. Mitigation Measures Initial Study Summerhouse Project -9- AQ - 1: On-going during all grading and construction activities, the project proponent shall require that the grading contractor utilize diesel powered equipment that is equipped with a cooled exhaust gas recirculation system. AQ - 2: On-going during all grading and construction activities, the project proponent shall require that the grading contractor utilize aqueous diesel fuel for the diesel powered equipment that is operated during the demolition, site preparation, grading and construction phases of the project. AQ - 3: On-going during all grading and construction activities, the project proponent shall require that the construction contractor limit the application of architectural coatings to 225 gallons per week and/or use zero volatile organic compound (VOC) paint. AQ - 4: On-going during all grading activities, the project proponent is required to provide a water truck to continuously "water down" the graded areas to reduce the amount of dust from excavation. During grading activities, the site shall be watered down no less than three times per day in order to comply with AQMD Rule 403-Fugitive Dust. In addition, all heavy equipment must be regularly maintained to reduce emissions. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -10- 4. BIOLOGICAL RESOURCES. Would the project? Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Have a substantial adverse effect, either directly or through X habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b. Have a substantial adverse effect on any riparian habitat or other X sensitive natural community identified in local or regional plans, policies, regulations or by the California Department of Fish and Game or US Fish and Wildlife Service? C. Have a substantial adverse effect of federally protected wetlands X as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d. Interfere substantially with the movement of any native resident or X migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nurser sites? e. Conflict with any local policies or ordinances protecting biological X resources, such as a tree reservation policy or ordinance? f. Conflict with the provisions of an adopted Habitat Conservation X Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? Comments from May 2006 Initial Study: The proposed project site is comprised of two vegetative conditions: Disturbedlruderal conditions (4.6 acres) Typically include areas cleared of natural vegetation as a result of disturbance activities and either lack vegetation completely or support various non-native ruderal plant species. Onsite disturbed/ruderal areas include those previously disturbed from their proximity to developed areas. The dominant plant species within this portion of the proposed project site include black mustard (Brassica nigra), Russian thistle (Salsola tragus), telegraph weed (Heterotheca grandiflora), slender tarweed (Hemizonia fasciculate), and horseweed (Conyza canadensis). Other common plant species include horehound (Marrubium vulgare), foxtail chess (Bromus madritensis ssp. Rubens) common sow thistle (Sonchus oleraceus), umbrella sedge (Cyperus involucratus), white sweet clover (Meliotus alba), tocalote (Centaurea melitensis), tree tobacco (Nicotiana glauca), mule fat (Baccharis salicifolia) and dove weed (Croton setigerus). California black walnut (Juglans californica) and cottonwood (Populus sp.) trees were also observed in this vegetation community. A Tree Survey was completed to identify sizes, conditions, and locations of the native tree species onsite. Developed conditions (2.7 acres) Occur in three parts along Margarita Road on the eastern end of the proposed project site. Ornamental vegetation communities are the dominant plant cover type with these portions of the proposed project site. Vegetation within this community includes various planted non-native ornamental species typically used for aesthetic purposes. Initial Study Summerhouse Project -11- Wildlife A limited number of animial species were identified onsite during the assessment, including house finch (Carpodacus mexicanus), American crow (Corvus brachyrhynchos), turkey vulture (Cathartes aura), California towhee (Pipilo crissalis), Bewick's wren (Thryomanes bewickii), black phoebe (Sayornis nigricans), mourning dove (Zenaida macroura), northern mockingbird (Mimus polyglottos), Anna's hummingbird (Calypte anna), common raven (Corvus corax), western fenced lizard (Sceloporus occidentalis), black-tailed jack rabbit (Lepus californicus), cottontail (Sylvilgaus sp.) and California ground squirrel (Spermophilus beecheyi). 4.a. No Impact: The presence of protected, regulated, or otherwise sensitive plant and wildlife species occurring or potentially occurring onsite is based on an evaluation of the habitat found on the proposed project site. No plant or wildlife species listed as threatened or endangered was observed during the field investigations conducted by PCR Services Corporation, referenced in the September 9, 2005 Biology Assessment. The habitat surveyed was deemed unsuitable for most of those species with the potential to occur onsite. The propose project site lies within the Multiple Species Habitat Conservation Plan (MSHCP), which requires focused surveys for just one sensitive species, burrowing owl, in order to concurrently satisfy the conservation objectives of the California Department of Fish and Game (CDFG) and United States Fish and Wildlife Service (USFWS). Burrowing Owl (BUOW) is a California Species of Concern (CSC), whose burrow sites are protected by state law under the state Fish and Game Code. This species is a year-round resident of southern Californian annual and perennial grasslands, deserts, and and scrublands that are characterized by low-growing vegetation. BUOW breeds from March through August, and individuals typically nest in pre-existing burrows that are created by small fossorial mammals, but may alternatively use man-made structures for the same purposes. A BUOW Phase I, 11 and III survey was conducted by PCR on the proposed project site. The California Natural Diversity Database (CNDDB) documents three occurrences of BUOW within the USGS Pechanga quadrangle which encompasses the proposed project site. Although the proposed project site contains suitable habitat for BUOW, no "sign" specifically characteristic of BUOW was observed during investigations performed by PCR, nor was the species observed during the subsequent Phase II BUOW surveys. With no confirmed presence of any individuals nesting onsite, no impacts to BUOW are expected, and mitigation measures for BUOW do not need be incorporated into the proposed project site consisting of a Tentative Tract Map and a Development Plan implementation. 4.b. No Impact: The proposed project site is comprised entirely of residential development and ruderal/disturbed vegetation, without any other significant plant community. Therefore, no impacts are expected to occur to any sensitive communities as a result of the proposed project site consisting of a Tentative Tract Map and a Development Plan and no mitigation measures would be required. 4.c. No Impact: During the biological resources assessment on July 18, 2005, a general jurisdictional determination was performed throughout the proposed project site. No drainages were located on the project site in the historical literature or aerial photos, or exist on the proposed project site today. The results indicated the absence of any "waters of the U.S." and/or "water of the State" onsite. Based on the results of the determination a formal jurisdictional delineation will not be warranted. No impact would occur and no mitigation measures would be required. 4.d. Potentially Significant Unless Mitigation Incorporated: The proposed project site contains vegetation, (limited and/or disturbed) with the potential to support migratory songbird bird nest. Disturbing or destroying active nests is a violation of the Federal Migratory Bird Treaty Act (MBTA). Therefore, potentially significant impacts may occur to nesting birds as a result of the proposed project. In addition, nests, live young, and eggs are protected under the State of California's Fish and Game Code Section 3503. Mitigation for the taking of active nests may be accomplished in two ways. The first way would be the initiation of vegetation clearing prior to February 15 or after August 15 to avoid impacting nesting birds onsite. Alternatively, if construction Initial Study Summerhouse Project -12- activities must occur during the nesting season (February 15 to August 15) all suitable habitat should be thoroughly surveyed for the presence of nesting birds by a qualified biologist before commencement of disturbance activities. Typically, if an active nest is detected, the shrub containing the nest, along with a 200- to 300- foot buffer around it, is flagged and avoided until the nesting cycle is complete. Based on the information provided in the Biology Assessment, with the incorporation of suggested mitigation measures, the proposed project consisting of a Tentative Tract Map and a Development Plan will have a less than significant impact and will not interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites. 4.e. Potentially Significant Unless Mitigation Incorporated: The City of Temecula encourages preservation of existing trees, and is in the process of approving an official tree policy. The results of the tree survey indicated that existing trees onsite included thirty-two native coast live oak trees, Western sycamore trees, California black walnut trees and Fremont cotton wood trees that occur onsite within the landscape yard of one residence and one commercial site (counseling center). Based on the results of the Tree Survey, mitigation can be taken so that initiation of vegetation clearing is prior to February 15th or after August 15 resulting in a less than significant impact. If this is not feasible, all suitable habitats should be thoroughly surveyed for the presence of nests by a qualified biologist no more than 5 days before commencement of any tree removal. 41 No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not conflict with adopted any Habitat Conservation Plans or Natural Community Conservation Plans. Specifically, the MSHCP requirement for a burrowing owl survey (Phase I, II, and III) has already been complied with. No impact would occur and no mitigation measures would be required. Mitiaation Measures BR-1: Prior to the issuance of a grading permit, vegetation clearing shall be initiated prior to February 15 or after August 15. If this is not feasible, all suitable habitats shall be thoroughly surveyed for the presence of nests by a qualified biologist no more than five days before commencement of tree removal. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date, other than the fact that a portion of PA05-0235 was constructed and is now vacant. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -13- 6. CULTURAL RESOURCES. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Cause a substantial adverse change in the significance of a X historical resource as defined in Section 15064.5? b. Cause a substantial adverse change in the significance of an X archaeological resource pursuant to Section 15064.5? C. Directly or indirectly destroy a unique paleontological resource X or site or unique geologic feature? d. Disturb any human remains, including those interred outside X of formal cemeteries? Comments from May 2006 Initial Study: 5.a. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not have a substantial adverse change in the significance of a historical resource as defined in Section 15064.5. A records search of the proposed project site did not indicate prehistoric or historic cultural resources within or adjacent to the project area and none were identified by the survey. No impact would occur and no mitigation measures would be required. 5.b. Potentially Significant Unless Mitigation Incorporated: The proposed project consisting of a Tentative Tract Map and a Development Plan may have a substantial adverse change in the significance of an archeological resource pursuant to Section 15064.5. A records search of the proposed project site did not indicate prehistoric or historic cultural resources within or adjacent to the project area and none were identified by the survey. With the incorporation of mitigation measures provided by the Pechanga Band of Luiseno Indian this potential impact has been mitigated to a less than significant level. 5.c. Potentially Significant Unless Mitigation Incorporated: The presence of sediments (Pauba Formation) suitable to contain paleontological resources were found on site. Results of the literature review in the Paleotogical Assessment (Paleontological Resource Assessment, LSA Associates, Inc., October 13, 2005) reinforce the high potential for encountering significant nonrenewable vertebrate fossils at depth. LSA recommends that a Paleontological Resource Impacts Monitoring Program (PRIMP) be included with construction excavation at the site when exaction reaches a depth below five feet. This PRIMP includes excavation monitoring and fossil salvage, fossil preparation and identification, repository curation, and a compliance report. Based on the information provided in the Paleotogical Assessment, with the incorporation of suggested mitigation measures, the impacts to the paleontological resources will be less than significant. 5.d. Potentially Significant Unless Mitigation Incorporated: The proposed project consisting of a Tentative Tract Map and a Development Plan may disturb human remains, including those interred outside of formal cemeteries. If human remains are encountered, State Health and Safety Code Section 7050.5 states that no further disturbance shall occur until the County Coroner has made a determination of origin and disposition pursuant to Public Resources Code Section 5097.98. The County Coroner must be notified of the find immediately. If the remains are determined to be prehistoric, the Coroner will notify the Native American Heritage Commission (NAHC), which will determine and notify a Most Likely Descendant (MILD). Mitigation Measures Initial Study Summerhouse Project -14- CR - 1: Prior to the issuance of a grading permit, the project proponent shall prepare an assessment of the archeological and cultural resources on the project property. The assessment shall be performed by a qualified archeologist in conjunction with the Pechanga Band of Lusieno Indians in order to determine whether there are cultural resources on the property and evaluate the significance of any such resources. Any such testing shall involve the Pechanga Tribe, and all tests to determine impacts should be completed prior to the issuance of grading permits. CR - 2: Prior to the issuance of grading permits, the project proponent shall enter into a Treatment Agreement with the Pechanga Band of Luiseno Indians. This agreement will address the treatment and disposition of cultural resources and human remains that may be uncovered during construction as well as provisions for tribal monitors. CR - 3: On-going during all grading, excavation and ground-breaking activities, Tribal monitors from the Pechanga Band of Luiseno Indians shall be allowed to monitor all grading, excavation and ground-breaking activities, including further surveys, to be compensated by the project proponent. The Pechanga Tribal monitors shall have the authority to temporarily stop and redirect grading activities to evaluate the significance of any archaeological resources discovered on the property, in conjunction with the archeologist and the Lead Agency. CR - 4: On-going during all earthmoving phases of the project, if human remains are encountered, all activity shall cease and the County Coroner must be notified immediately. All activity must cease until the County Coroner has determined the origin and disposition of said remains. The Coroner shall determine if the remains are prehistoric, and shall notify the State Native American Heritage Commission (NAHC) if applicable. Further actions shall be determined by the desires of the Most Likely Descendent (MLD). CR - 5: On-going during all earthmoving phases of the project, the landowner shall agree to relinquish ownership of all cultural resources, including all Luiseno sacred items, burial goods and all archeological artifacts that are found on the project site to the Pechanga Band of Luiseno Indians for proper treatment and disposition. CR - 6: On-going during all earthmoving phases of the project, all sacred sites within the project area are to be avoided and preserved. CR -7: Prior to the issuance of a grading permit, the project proponent shall develop a Paleontological Resource Mitigation Program (PRIMP) in accordance with the recommendations of the City of Temecula and the County of Riverside for the excavation phase of the proposed project when construction excavation reaches depths below five feet. This project is designed to conform to the agency guidelines for administration of CEQA and those of the Society of Vertebrate Paleontology. It includes the following steps: • A trained paleontological monitor shall be present during ground-disturbing activities within the project area in sediments below a depth of five feet that have been determined likely to contain paleontological resources. The monitoring for paleontological resources shall be conducted on a half-time basis. The monitor shall be empowered to temporarily halt or redirect construction activities to ensure avoidance of adverse impacts to paleontological resources. The monitor shall be equipped to rapidly remove any large fossil specimens encountered during excavation. During monitoring, samples shall be collected and processed to recover microvertebrate fossils. Processing will include wet screen washing and microscopic examination of the residual materials to identify small vertebrate remains. • Upon encountering a large deposit of bone, salvage of all bone in the area will be conducted with additional field staff and in accordance with modern paleontological techniques. • All fossils collected during the project will be prepared to a reasonable point of identification. Excess sediment or matrix will be removed from the specimens to reduce the bulk and cost of storage. Itemized catalogs of all material collected and identified will be provided to the museum repository along with the specimens. Initial Study Summerhouse Project -15- • A report documenting the results of the monitoring and salvage activities and the significance of the fossils will be prepared. • All fossils collected during this work, along with the itemized inventory of these specimens, shall be deposited in a museum repository for permanent curation and storage. If fossils are identified, monitoring shall be increased to full-time. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -16- 6. GEOLOGY AND SOILS. Would the project: Potentially Potentially Significant Less Significant Unless Than No Issues and Supporting Information Sources Impact Mitigation Significa Impact Incor orated nt Im act a. Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involvin : i. The rupture of a known earthquake fault, as delineated on X the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? (Refer to Division of Mines and Geology Special Publication 42. ii. Strong seismic round shaking? X iii. Seismic-related round failure, including liquefaction? X iv. Landslides? X b. Result in substantial soil erosion or the loss of topsoil? X C. Be located on a geologic unit or soil that is unstable, or that X would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? d. Be located on expansive soil, as defined in Table 18-1-B of X the Uniform Building Code (1994), creating substantial risks to life or property? e. Have soils incapable of adequately supporting the use of X septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of wastewater? Comments from May 2006 Initial Study: 6.a.i. Less Than Significant Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan is not located within an Alquist-Priolo Earthquake Fault Zoning Map. A Preliminary Geotechnical Investigation Report (Preliminary Geotechnical Investigation Report, Converse Consultants, May 13, 2005) review found that there are no known active faults projecting toward or extending across the proposed project site. The site is not situated within any currently designated State of California Earthquake Fault Zone. The nearest known active fault is the Elsinore Fault Zone, Wildomar Fault, which is located approximately 1/ mile from the site. The potential for surface rupture resulting from the movement of the nearby faults is not known with certainty, but based on the location of the known active faults and the historic movement of the faults, the potential for rupture is considered to be very low. Any potential significant impacts will be mitigated through building construction, which is consistent with the Uniform Building Code standards. 6.a.ii. Potentially Significant Unless Mitigation Incorporated: Refer to Response 6 (a.i) above for discussion of faults. According to the Preliminary Geotechnical Investigation Report (Preliminary Geotechnical Investigation Report, Converse Consultants, May 13, 2005), the proposed project site is underlain by predominantly silty sand, clay, and sand with silt. These soils are relatively fine to coarse grained and, in general, in loose to dense conditions. Such soils are susceptible to significant differential settlement during seismic shaking if mitigations methods are not implemented. Evaluation of soil borings and SPT data indicates that the subsurface soils are sensitive to seismically induced settlement. Based on the Preliminary Geotechnical Investigation Report analysis, the total seismically-induced settlement on the south portion is estimated to be 6.65 inches. Further investigation is recommended using Cone Penetration Tests (CPT's) to verify the lateral extent of liquefaction and associated settlement. Initial Study Summerhouse Project -17- Based on the information provided in the Preliminary Soils Investigation Report, with the incorporation of mitigation measures to provide further investigation using Geo Probe Tests (GPT's) to verify lateral extent of liquefaction and associated settlement, the proposed project consisting of a Tentative Tract Map and a Development Plan will have a less then significant impact. 6.a.iii. Potentially Significant Unless Mitigation Incorporated: Based on the soil borings, reported in the Preliminary Geotechnical Investigation Report, laboratory testing results and evaluation procedures published by Southern California Earthquake Center (March 1999), the underlying soil within the southern portion of the property below 25 feet is susceptible to liquefaction under earthquake ground shaking. Settlement due to liquefaction is estimated at 6.65 inches. Any potential impacts will be mitigated through building construction, which is consistent with the Uniform Building Code standards. Additionally, further investigation using cone penetration testing was recommended to verify the lateral extent of the liquefiable zone and total settlement. 6.a.iv. Less Than Significant Impact: Seismically induced landslides and other slope failures are common occurrences during or soon after earthquakes. In the absence of significant group slopes, the potential for seismically induced landslides to affect the proposed project site is considered to be nil. A less then significant impact would occur and no mitigation measures would be required. 6.b. Less Than Significant Impact: The grading activities required to facilitate development will alter the existing topography of the site by moving earth to create building pads, streets, and other amenities. The proposed grading activities are anticipated to be routine and review of engineered grading plans and with the application of Best Management Practices (BMPs) for construction, required by the National Pollutant Discharge Eliminating System (NPDES) the proposed project consisting of a Tentative Tract Map and a Development Plan is not anticipated to contain any unstable soil or erosion conditions. A less then significant impact would occur and no mitigation measures would be required. 6.c. Less Than Significant Impact: Refer to Response 6 (b) for a discussion of existing geologic conditions on the project site. A less then significant impact would occur and no mitigation measures would be required. 6.d. Less Than Significant Impact: Refer to Response 6 (b) for a discussion of existing geologic conditions on the project site. The results of geologic investigations indicate that the soils underlying the site generally have a low expansion potential. A less then significant impact would occur and no mitigation measures would be required. 6.e. No Impact. The proposed project would be connected to the local sewer system and no septic tanks or an alternative waste disposal system would be required. Therefore, no impact would occur and no mitigation measures would be required. Mitigation Measures GS - 1: Prior to the issuance of grading permits, the project proponent shall submit appropriate soils and geologic hazard investigation reports, including a cone penetration test to verify lateral extent of liquefiable zone and total settlement, to the City of Temecula for review and approval. GS - 2: Prior to the issuance of grading permits, the site shall be cleared of all vegetation, trees, structures and debris. The materials resulting from the clearings and grubbing operations should be removed from the site. If on-site sewage disposal systems are presently in operation, septic tanks should be pimped dry and removed as part of the demolish. GS - 3: Prior to the issuance of grading permits, the project proponent will demonstrate that over-excavation shall be performed in accordance with the Preliminary Geotechnical Investigation Report. GS - 4: Prior to the issuance of grading permits, the project proponent will demonstrate that the final bottom surfaces of all excavations shall be observed and approved by the project geotechnical consultant prior to Initial Study Summerhouse Project -18- placing any fill and/or structures. Based on observations, removal of localized areas deeper than those documented may be required during grading. The bottom of the excavations shall be scarified in accordance with the Preliminary Geotechnical Report. GS - 5: Prior to the issuance of grading permits, the project proponent will demonstrate that earth materials at the site shall be excavatable with conventional heavy-duty earth moving equipment. GS - 6: Prior to the issuance of grading permits, the project proponent will demonstrate that during earth movement activities that they shall adhere to all recommendations advanced in the relevant soils and geologic hazard investigation reports approved by the City of Temecula. GS - 7: Prior to the issuance of any grading permit, further investigation is recommended using Cone Penetration Tests and Geo Probe Tests to verify the lateral extent of liquefaction and associated settlement. GS - 8: Prior to the issuance of a grading permit, the project proponent shall submit an updated Geotechincal Analysis shall be submitted to the Planning Department for review. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -19- 7. HAZARDS AND HAZARDOUS MATERIALS. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Create a significant hazard to the public or the environment X through the routine transportation, use, or disposal of hazardous materials? b. Create a significant hazard to the public or the environment X through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? C. Emit hazardous emissions or handle hazardous or acutely X hazardous materials, substances, or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d. Be located on a site which is included on a list of hazardous X materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e. For a project located within an airport land use plan or, X where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f. For a project within the vicinity of a private airstrip, would X the project result in a safety hazard for people residing or working in the project area? g. Impair implementation of or physically interfere with an X adopted emergency response plan or emergency evacuation plan? h. Expose people or structures to a significant risk or loss, X injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? Comments from May 2006 Initial Study: 7.a. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan would not create a significant hazard to the public related to hazardous materials. Although the grading and construction activities would require the use and transport of potentially toxic construction materials, potential hazards related to this would be minimized through the compliance with existing Federal and State Occupation Safety and Health (OSHA) regulatory requirements. In addition, although the construction activities and the ongoing maintenance of the landscaping and structures would include the use of hazardous materials such as gasoline, diesel fuel, herbicides, and solvents, the use of these materials would be typical of residential landscaping and building maintenance and would pose a low risk of hazard. Therefore, development of the proposed project consisting of a Tentative Tract Map and a Development Plan would not create a hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials or through reasonably foreseeable upset and accident conditions involving the likely release of hazardous materials into the environment. No impact would occur and no mitigation measures would be required. Initial Study Summerhouse Project -20- 7.b. No Impact: Gasoline has leaked from tanks and/or related equipment at the ARCO station located immediately south of the project site (44239 Margarita Road). This has impacted underlying soil and groundwater. A soil gas survey was conducted at the project site to detect the presence of any gas vapors for public health and safety purposes. The soil gas survey concluded that near-surface soil gas does not appear to impact the areas of the proposed project buildings. No impact would occur and no mitigation measures would be required. 7.c. No Impact: Sparkman Elementary School is within one-quarter mile of the project site. Implementation of the proposed project consisting of a Tentative Tract Map and a Development Plan would not emit hazardous emissions or handle hazardous or acutely hazardous material, substances, or waste. No impact would occur and no mitigation measures would be required. 7.d. Less Than Significant: According to the City of Temecula, the project site is not listed as a hazardous materials site pursuant to Government Code Section 65962.5. In addition, the project site was addressed in a Phase I Environmental Site Assessment. The Phase I ESA, as updated, includes a records review of Federal and State Regulatory Agencies. The database search reviewed Federal and State lists of known or suspected contaminated sites, known handlers or generators of hazardous waste, known hazardous waste disposal facilities, and permitted underground storage tanks (USTs) within a 0.5 mile radius of the proposed project site. The proposed project site was not identified on any of these lists. However, two properties that are known to have leaked petroleum hydrocarbons to underlying soil or groundwater are located within a half-mile radius of the proposed project site. Environmental investigations and remediation have been conducted at these properties. One property, Murdy Ranch located at 45375 Loma Linda Street, has a case closed status issued by the County of Riverside Environmental Health Department (the environmental oversight regulatory agency). One case remains open and involves the ARCO service station property located immediately south of the proposed project site at 44239 Margarita Road. The property is reported as having a leaking underground storage tank (LUST) that has impacted surrounding soils. During a site reconnaissance, several monitoring wells and associated fifty-gallon drums were observed in and around the service station property. A remediation system located on the northwest site of the property was also observed. Tait Environmental management, Inc. (TEM) estimates that a low probability exists that this property has environmentally impacted the proposed project site based on the following facts: (1) The ARCO service station is listed as having impacted soil only; (2) Fourth quarter 2004 groundwater monitoring data for wells located immediately upgradient of the proposed project site (wells MW - 8, MW - 9, MW - 12, and MW - 14) indicate only trace quantities of fuel oxygenates. No other off-site properties were identified that may be likely to significantly affect the site. No significant impact would occur and no mitigation measures would be required. 7.e. No Impact: The project site is not located within an airport land use plan or within two miles of a public airport or public use airport. The closest public airport or public use airport is the French Valley Airport located approximately 9 miles to the north. The development of the proposed project consisting of a Tentative Tract Map and a Development Plan would not introduce people into an area where there is a safety hazard as a result of the public airport or public use airport. No impact would occur and no mitigation measures would be required. 71 No Impact: The project site is not located within the vicinity of a private airport. The closest public airstrip is French Valley Airport located approximately 9 miles to the north of the proposed project site. The development of the proposed project consisting of a Tentative Tract Map and a Development Plan would not introduce people into an area where there is a safety hazard as a result of a private airstrip. No impact would occur and no mitigation measures would be required. 7.g. Less Than Significant Impact: The City of Temecula would provide the emergency response and evacuation plans for the project site and vicinity. Access to the proposed residential development would be off Margarita Road as a right in/right out movement and Dartolo Road as full access. Although the development of the proposed project consisting of a Tentative Tract Map and a Development Plan would result in development Initial Study Summerhouse Project - Z' of vacant land, no significant changes in the circulation patterns in the project vicinity would occur. The development of the proposed project consisting of a Tentative Tract Map and a Development Plan would not impair the ability of the City to implement its emergency response plan or utilize emergency evacuation routes. A less than significant impact would occur and no mitigation measures would be required. 7.h. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan implements the Temecula General Plan's vision for this area of Temecula. The project is not next to any wildlands and would therefore, not adversely expose people or property to significant risk of loss, injury or death involving wildland fires. No significant impacts would result and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -22- 8. HYDROLOGY AND WATER QUALITY. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Violate any water quality standards or waste discharge X requirements or otherwise substantial) degrade water quality? b. Substantially deplete groundwater supplies or interfere X substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? C. Substantially alter the existing drainage pattern of the site or X area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off-site? d. Substantially alter the existing drainage pattern of the site or X area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off- site? e. Create or contribute runoff water which would exceed the X capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff? f. Require the preparation of a Water Quality Management Plan? X g. Place housing within a 100-year flood hazard area as mapped X on a federal Flood Hazard Boundary or Flood Insurance Rate Ma or other flood hazard delineation map? h. Place within a 100-year flood hazard area structures which X would impede or redirect flood flows? i. Expose people or structures to a significant risk of loss, injury X or death involving flooding, including flooding as a result of the failure of a levee or dam? j. Inundation by seiche, tsunami, or mudflow? X Comments from May 2006 Initial Study: 8.a. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not violate water quality standards or waste requirements. As discussed in Response 6 (b) above, although the proposed project does have potential to result in erosion of soils during construction activities, erosion would be addressed through the implementation of existing erosion control standards and policies imposed by the City's grading permit requirements. In addition, the proposed project consisting of a Tentative Tract Map and a Development Plan would provide an on-site storm drainage system comprised of inlets that would drain surface run-off into the on-site facilities to be conveyed to off-site stormwater facilities. The project will be developed in accordance with Best Management Practice (BMPs) required by the National Pollutant Discharge Elimination System (NPDES). No impact would occur and no mitigation measures would be required. Initial Study Summerhouse Project -23- 8.b. No Impact: The development of the proposed project consisting of a Tentative Tract Map and a Development Plan would not change the groundwater supplies or interfere with groundwater recharge. No impact would occur and no mitigation measures would be required. 8.c. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation onsite or offsite. No impact would occur and no mitigation measures would be required. 8.d. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding onsite or offsite. No impact would occur and no mitigation measures would be required. 8.e. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff. No impact would occur and no mitigation measures would be required. 8.f. Less Than Significant: The project will not violate any water quality standards or waste discharge requirements established by the State of California. However, the project is required to prepare a Water Quality Management Plan (WQMP) pursuant to the Municipal Separate Storm-Sewer permit (MS4 permit) issued by the San Diego Regional Water Quality Control Board. The WQMP was submitted on August 181H 2005 and reviewed by the Public Works Department. The water quality control measures identified in the WQMP have either been incorporated into the design of the project or have been added to the project with specific conditions of approval and are expected to eliminate potential adverse impacts to receiving waters. A less than significant impact would occur and no mitigation measures would be required. 8.g. No Impact: A review of National Flood Insurance Rate Maps (FIRM, November 20, 1996) indicates that the project site is within Flood Hazard Zone W'. Zone "X" is designated as "Areas of 500-year flood; areas of 100-year flood with average depths of less than 1 foot or with drainage areas less than 1 square mile; and areas protected by levees from 100-year flood." The proposed project site is not within the 100-year flood zone, therefore no impact would occur and no mitigation measures would be required. 8.h. No Impact: Refer to Response 8 (g) above for a description of the project site and vicinity. No impact would occur and no mitigation measures would be required. 8.i. No Impact: The proposed project is within the Vail Lake dam inundation area. Temecula Creek, which is the primary drainage course in the immediate area, was dredged as a result of Assessment District 159. Improvements and dredging were completed in 1996. The RCWD owns Vail Lake Dam and has submitted to the City a Dam Inundation report, which includes language pertaining to the dredging of Temecula Creek. An additional study obtained from the Riverside County Flood Control, Flood Insurance Study, and Federal Emergency Management Agency (FEMA), November 20, 1996 further discusses the dredging of Temecula Creek. The FEMA study shows that the dredging now allows for additional carrying capacity in the event of a major flood or an event such as the failure of Vail Lake Dam. The proposed project is not anticipated to impede or redirect flood flows. As a condition of approval a drainage plan is required; this plan will address flow and drainage and provide comments and/or recommendation concerning the failure of the Vail Lake Dam. While the current City of Temecula Final EIR identifies the project site as being within the Vail Lake Dam Inundation Area, the recent improvements to Temecula Creek have mitigated this potential impact. 8.j. No Impact: Due the distance of the project site from the Pacific Ocean or from any lakes or water bodies of significant size, the development of the proposed project would not result in the exposure of people or Initial Study Summerhouse Project -24- structures to hazards due to a seiche or tsunami. In addition, the project site is not located within an area subject to mudflow hazards. No impact would occur and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -25- 9. LAND USE AND PLANNING. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Physic Ildivide an established community? X b. Conflict with any applicable land use plan, policy, or X regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? C. Conflict with any applicable habitat conservation plan or X natural community conservation plan? Comments from May 2006 Initial Study: The site of the proposed project is vacant and developed land. The proposed project site is designated Professional Office (PO) on both the General Plan Land Use and Zoning Maps. Senior housing is consistent with this zoning designation. 9.a. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan is developed and vacant land. Surrounding land uses included sparsely developed land abutting the site to the north; a proposed hospital site to the west; a medical center to the south; and a grocery store to the east. The project is bound to the west with Margarita Road and Dartola Road to the South. Based on existing land uses and land use patterns in the City the proposed project will not physically divide the community. No impact would occur and no mitigation measures would be required. 9.b. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan does not conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the General Plan, Specific Plan, Coastal Program, or Zoning Ordinance) adopted for the purpose of avoiding or mitigation of an environmental effect. No impact would occur and no mitigation measures would be required. 9.c. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan does not lie within any applicable habitat conservation plan or natural community conservation plan. The project site is not located within a Multi Species Habitat Conservation Plan (MSHCP) criteria cell. No impact would occur and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -26- 10. MINERAL RESOURCES. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Result in the loss of availability of a known mineral resource x that would be of value to the region and the residents of the state? b. Result in the loss of availability of a locally-important mineral x resource recovery site delineated on a local general plan, specific plan or other land use plan? Comments from May 2006 Initial Study: 10.a. No Impact: The project site is not located within an area with known mineral resources of significance, as designated by local, regional, and State agencies. No impact would occur and no mitigation measures would be required. 10.b. No Impact: The project site is not designated as a locally-important mineral recovery site in the City of Temecula General Plan, the RCIP, or specific plans, or other land use plans. No impact would occur and no mitigation measure would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -27- 11. NOISE. Would the project result in: Potentially Potentially Significant Less Significant Unless Than No Issues and Supporting Information Sources Impact Mitigation Significant Impact Incorporate Impact d a. Exposure of persons to or generation of noise levels in excess X of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b. Exposure of persons to or generation of excessive groundborne X vibration or roundborne noise levels? C. A substantial permanent increase in ambient noise levels in the X project vicinity above levels existing without the project? d. A substantial temporary or periodic increase in ambient noise X levels in the project vicinity above levels existing without the project? e. For a project located within an airport land use plan or, where X such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f. For a project within the vicinity of a private airstrip, would the X project expose people residing or working in the project area to excessive noise levels? Comments from May 2006 Initial Study: The maximum noise level allowed is determined by land use. The following describes adopted City policies related to noise control standards, exterior noise impact, and interior noise impacts. Noise Control Standards: The City of Temecula General Plan Noise Element specifies a maximum allowed noise level of 70 dBA CNEL exterior and 45 dBA CNEL interior for attached condominium units land uses. These standards represent the maximum exterior and interior noise levels that would be considered acceptable based on the noise levels that are generated by any adjacent mobile sources, such as automobiles, trucks and trains. Exterior Noise Impacts: To determine the existing and future exterior noise levels for the receptors at the site, noise modeling of the site was conducted using the Caltrans Sound32 (Caltrans 1987) traffic noise model with California noise emission factors (Calveno 1987). The Sound32 Model is based on the industry standard FHWA RD 77-108 Highway Traffic Noise Prediction Model. Interior Noise Impacts: The City requires that interior noise levels not exceed a CNEL of 45 dBA. Typically, with the windows open, building shells provide approximately 15 dBA of noise reduction. Therefore, rooms exposed to an exterior CNEL greater than 60 dBA could result in an interior CNEL greater than 45 dBA. 11.a. Potentially Significant Unless Mitigation Incorporated: The proposed project consisting of a Tentative Tract Map and a Development Plan may result in the exposure of persons to or generation of noise levels in excess of standards established in the City of Temecula General Plan unless mitigated. Initial Study Summerhouse Project -28- The proposed project consisting of a Tentative Tract Map and a Development Plan will result in an increase in the existing noise levels due to construction equipment and activities, but this would be on a temporary basis and considered a less than significant impact. In relation to traffic-generated noise levels, the City's General Plan Noise Element specifies a maximum allowed noise level of 70 dBA CNEL exterior and 45 dBA CNEL interior for this land use type. A Noise Impact Analysis (Noise Impact Assessment, RGP Planning and Development Services, December 8, 2005) was conducted to analyze the potential impacts of the proposed project, identify off-site noise receptors in the project vicinity and addresses the effects of off-site noise including vehicle noise on the adjacent roadway. It was determined that the future noise levels for first-floor exterior receptors are all within the City's 70CNEL exterior noise standard. However, one second-floor exterior receptor in the northeastern portion of the site facing margarita Road would experience future noise levels up to 72 CNEL. To mitigate this impact, a barrier shall be required for this unit that consists of a solid base plus a transparent plexi-glass upper section to continuously wrap around the edge of the deck. This mitigation shall reduce the impact to 67db CNEL. Prior to building permits the project proponent shall submit an interior acoustical analysis to ensure that interior noise levels will not exceed a CNEL of 45dBA. The analysis shall include requirements such as air- conditioning and/or mechanical ventilation systems, and sound-rated windows and doors as a means of achieving compliance for any homes where the future exterior noise levels are expected to exceed a CNEL of 60 dBA. 11.b. Less Than Significant Impact: The development of the proposed project site would require construction equipment and activities that could generate groundborne vibration and noise on a short-term basis. No long-term vibration or noise would occur due to the ongoing operation of the proposed project consisting of a Tentative Tract Map and a Development Plan as a senior (55+) attached condominium unit development. Due to the short-term basis of the construction-related vibration that may occur, a less than significant impact would occur and no mitigation measures would be required. 11.c. Less Than Significant Impact: The proposed project is not expected to cause a substantial permanent increase in ambient noise levels in the project vicinity above the levels existing without the proposed project. The development of the proposed project consisting of a Tentative Tract Map and a Development Plan would result in increases in the existing ambient noise levels due to: the ongoing operation of a senior (55+) attached condominium units development, including vehicular traffic and the use of onsite recreational facilities. However, in light of the distance to the nearest off-site receptors 350) and the existing and future levels of ambient noise created by the public roadways in the local vicinity, the project's total contribution to ambient noise level increases at off-site receptors are expected to be minor (ie; < 1 dBA CNEL). Therefore, the impact would be less than significant and no mitigation would be required. 11.d. Less Than Significant Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan may result in a temporary or periodic increases in ambient noise levels during construction and thereafter. Construction machinery is capable of producing noise in the range of 100+ DBA at 100 feet, which is considered annoying. However, this source of noise from construction of the project will be of short duration and therefore would not be considered significant. Furthermore, the project will comply with City ordinances regulating the hours of construction activity from 6:30 A.M. to 6:30 P.M. Monday through Friday and 7:00 A.M. to 6:30 P.M. on Saturday. Construction will not be permitted Sundays and nationally recognized holidays. A less than significant impact is anticipated at this time. 11.e. No impact: The project site is not located within an airport land use plan or within two miles of a public airport or public use airport. The development of the proposed project consisting of a Tentative Tract Map and a Development Plan would not expose people residing on the project site to excessive noise levels associated with a public airport. No impact would occur and no mitigation measures would be required. Initial Study Summerhouse Project -29- 111 No impact: The project site is not located within the vicinity of a private airstrip. The development of the proposed project consisting of a Tentative Tract Map and a Development Plan would not expose people residing on the project site to excessive noise levels associated with a private airport and/or private airstrip. No impact would occur and no mitigation measures would be required. Mitigation Measures NO - 1: Prior to issuance of grading permits, the project proponent shall submit a construction related noise mitigation plan to the City for review and approval. The plan shall depict the number, types, and location(s) of construction equipment and how the noise from the equipment will be reduced during construction of the proposed project. NO - 2: On-going throughout earthmoving and construction activities, the project proponent shall demonstrate that during all project site excavation and grading onsite, the construction contractors shall equip all construction equipment fixed or mobile, with properly operating and maintained mufflers, consistent with manufactures' standards. The construction contractor shall place all stationary construction equipment so that emitted noise is directed away from the noise sensitive receptors nearest the project site. NO - 3: On-going throughout earthmoving and construction activities, the project proponent's construction contractor shall locate equipment staging in areas that will create the greatest distance between construction- related noise sources and noise sensitive receptors nearest the project site during all project construction. NO - 4: Prior to the issuance of any grading permits, the project proponent's construction contractor shall limit all construction-related activities that would result in high noise levels according to the construction hours to be determined by the City staff. NO - 5: Prior to the issuance of any grading permits, the project proponent's construction contractor shall limit haul truck deliveries to the same hours specified for construction equipment. To the extent feasible, haul routes shall not pass sensitive land uses or residential dwellings. NO - 6: Prior to the issuance of any certificate of occupancy, the project proponent shall be required to build a noise barrier for the second-floor balcony facing at Unit 53 (identified in Figure 5 of this report). The barrier shall be at a height of 5 feet above the finished floor of the balcony. The barrier may consist of a solid base plus a transparent "plexi-glass" upper section continuously wrapped around the edge of the deck. The upper section shall be constructed of 3/8-inch glass or'/ inch thermoplastic. NO - 7: Prior to the issuance of building permits, the project proponent shall submit an acoustical analysis to ensure that noise levels will not exceed a CNEL of 70 dBA exterior and 45 dBA interior. The interior noise analysis shall include requirements such as air-conditioning and/or mechanical ventilation system, and sound- rated windows and doors as a means of achieving compliance for any homes where the future exterior noise levels are expected to exceed CNEL of 60 dBA. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -30- 12. POPULATION AND HOUSING. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Induce substantial population growth in an area, either directly X (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure ? b. Displace substantial numbers of existing housing, X necessitating the construction of replacement housing elsewhere? c. Displace substantial numbers of people, necessitating the X construction of replacement housing elsewhere? Comments from May 2006 Initial Study: 12.a. Less Than Significant Impact: From 1990-2004, the population of Temecula nearly tripled from 27,099 to 77,460. That was a gain of 50,361 people or 185.8% (Exhibit 1). During this period, Southwest Riverside County (census tracts in and around Temecula, Murrieta, and Lake Elsinore) grew by 148.3% and Riverside County as a whole by 51.8%. Temecula's rapid population growth represents a relatively new phenomenon for Southern California. The City's large increase (18.3%) in 2002 was due to the Vail Ranch annexation. Another 5,500 was added in 2005 with the Redhawk annexation. The proposed project consisting of a Tentative Tract Map and a Development Plan would permit the development of 110 senior attached condominium units. The proposed project would generate an additional 258 residents (based on an average household size of 2.3 persons per dwelling unit). The additional residents anticipated by this project would represent less than significant of the existing City population. This increase is considered to be a less than significant impact and no mitigation measures would be required. 12.b. Less Than Significant Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan would involve the displacement of three existing homes and the families that live within the homes. The proposed project would provide for the construction of 110 new homes. The temporary loss of the existing homes and displacement of families is not considered a significant impact. Therefore, the development of the proposed project would not substantial displace existing housing, necessitating the construction of replacement housing elsewhere. A less than significant impact would occur and no mitigation measures would be required. 12.c. Less Than Significant Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan would involve the displacement of three existing homes and families that live within the homes. This is not a substantial number of people. Therefore, the development of the proposed project would not displace substantial numbers of people, necessitating the construction of replacement housing elsewhere. A less than significant impact would occur and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. The proposed Project would, however, assist the City in providing housing affordable extremely low, very low, low and moderate income persons and families. Initial Study Summerhouse Project -31- 13. PUBLIC SERVICES. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Fire rotection? X b. Police protection? X C. Schools? X d. Parks? X e. Other public facilities? X Comments from May 2006 Initial Study: 13.a. Less Than Significant Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan would result in addition structure, which would increase the need for fire protection services to the area. The Riverside County Fire Department, through a cooperative agreement provides fire protection, fire prevention, and emergency medical rescue services for the City. In addition to the four fire stations serving Temecula, the City began the F.A.S.T. program (Faster Ambulance Service in Temecula) on July 27, 1999. The program consists of a paramedic squad vehicle which responds to calls inside the City limits within five minutes. The site is located mile from the location of the interim Southside Fire Station and approximately 2 miles south of existing Pauba Road Fire Station. In addition to the primary fire engine, a paramedic ambulance, reserve fire engine, water tender, and breathing support unit are all housed there. Therefore, the proposed project consisting of a Tentative Tract Map and a Development Plan impact to fire protection services would be less than significant and no mitigation measures would be required. (City of Temecula website, accessed September 9, 2005, www.citvoftemecula.org) 13.b. Less Than Significant Impact: The development of the proposed project consisting of a Tentative Tract Map and a Development Plan has some potential to increase the demand for law enforcement services in the area. Law enforcement services for the project area are provided by the Temecula Police Department, which contracts with the Riverside County Sheriff's Department for Police services. The nearest police station to the project site is approximately 3.4 miles northwest of the site. Response time to the project area ranges from one to three minutes for in-progress emergency calls and 10-45 minutes for non-emergency calls. Prior to the approval of Tentative Tract entitlements, the project will be reviewed by the Temecula Police Department and conditioned with any necessary site-specific design features. Therefore, the potential impacts of the proposed project consisting of a Tentative Tract Map and a Development Plan, with standard protocols for tentative map review and the imposition conditions of approval, the impacts to law enforcement services would not be considered a significant. A less than significant impact would occur and no mitigation measure would be required. (City of Temecula website, accessed September 9, 2005, www.cityoftemecula.ora) 13.c. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan is a senior housing attached condominium community and it is not anticipated to generate students. The proposed project will be subject to the City of Temecula School fees. No impact would occur and no mitigation measures would be required. 13.d. Less Than Significant Impact: The City of Temecula takes pride in providing its citizens with over 30 beautiful parks and joint-use and community facilities, including a skate park and roller hockey arena. Community facilities include two recreation centers, an outdoor amphitheater, a gymnasium, two swimming Initial Study Summerhouse Project -32- pools, a senior center, the Temecula Museum, Imagination Workshop (Temecula Children's Museum), sports fields, and picnic shelter areas that can be reserved for parties or picnics. The City requires payment of a Parks and Recreation Fee per dwelling unit, a portion of which will be placed in a fund to purchase land for future parks and a portion will be applied for existing park maintenance and improvements. As outlined in the City's General Plan, this fee is considered sufficient to mitigate the cumulative impacts of additional future residential development on the need for more park space within the City. Compliance with City standards and requirements by payment of the in-lieu park fees would provide that a less than significant impact would occur and no mitigation measures would be required. 131 Less Than Significant Impact: The development of the proposed project consisting of a Tentative Tract Map and a Development Plan will result in the increased use of public facilities, including roads, schools, parks, libraries, police, and fire protection services. However, the ongoing maintenance of these facilities is funded through the collection of taxes, development fees and other funding sources to maintain City facilities in acceptable conditions. Compliance with City standards and requirements by payments of fees would provide that a less than significant impact would occur and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -33- 14. RECREATION. Would the project: Potentially Less Potentially Significant Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Increase the use of existing neighborhood and regional parks X or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b. Include recreational facilities or require the construction or X expansion of recreational facilities which might have an adverse physical effect on the environment? Comments from May 2006 Initial Study: 14.a. Less Than Significant Impact: The proposed project will not result in substantial deterioration of existing regional or neighborhood parks; however, it can be anticipated that the residences of the proposed project will utilize the parks in the area. Since the proposed project consists of 110 age-restricted condo units, the impacts are anticipated to be less than significant. The proposed project will be required to pay the appropriate Quimby fees, in accordance with City of Temecula ordinances, which will provide for future park facilities. A less than significant impact is anticipated. 14.b. Less Than Significant Impact: The proposed project includes the construction of a recreational facility for use by the residents. The proposed project is not anticipated to require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment. The proposed project will be required to pay the appropriate Quimby fees, in accordance with City of Temecula ordinances, which will provide for future park facilities. A less than significant impact is anticipated. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -34- 15. TRANSPORTATIONITRAFFIC. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Cause an increase in traffic which is substantial in relation X to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ration on roads, or congestion at intersections)? b. Exceed, either individually or cumulatively, a level of service X standard established by the county congestion management agency for designated roads or highways? C. Result in a change in air traffic patterns, including either an X increase in traffic levels or a change in location that results in substantial safety risks? d. Substantially increase hazards due to a design feature (e.g., X sharp curves or dangerous intersections) or incompatible uses (e. g., farm equipment)? e. Result in inadequate emergency access? X f. Result in inadequate parking capacity? X g. Conflict with adopted policies, plans, or programs X supporting alternative transportation (e.g., bus turnouts, bicycle racks)? Comments from May 2006 Initial Study: Traffic Impact Analysis Summary The traffic impact analysis (Revised Traffic Impact Analysis, DKS Associates, November 11, 2005) was scoped based on discussions with City staff and is summarized below to facilitate preparation and understating of this environmental document. The study objectives of this traffic impact analysis include: 1. Documentation and analysis of existing traffic conditions in the vicinity of the project site. 2. Evaluation of the traffic impacts from the proposed project on the street network in the vicinity of the proposed project. 3. Assessment of project access and internal circulation 4. Determination of additional circulation system features and system management actions needed to achieve the City of Temecula's level of service (LOS) requirements with implementation of the proposed project. In addition, this traffic impact analysis defines the California Environmental Quality Act (CEQA) significance thresholds and responds to the CEQA Initial Study Checklist questions related to the potential traffic impacts of the proposed project. Based on discussion with the City Traffic Engineer, the study intersections have been determined as follows: 1. Margarita Road/De Portola Road 2. Margarita Road/Dartolo Road Initial Study Summerhouse Project -35- 3. Margarita Road/SR 79 4. SR 79/Pechanga Parkway 5. SR 79/Butterfield Stage Road 6. Margarita Road/Rancho California Road Existing Traffic Conditions Existing a.m. and p.m. peak hour traffic counts were collected in the study area in May 2005. Roadways The following describes the existing roadways in the study area. Margarita Road Margarita Road is located along eastern boundary of the project site and provides direct access to the site via a right in/right out unsignalized driveway. Margarita Road runs in a north-south direction and is a four-lane (two lanes in each direction) divided roadway with a raised median. Margarita Road is designated as a Major Arterial in the vicinity of the project site in the City's General Plan. South of its intersection with SR 79, Margarita Road becomes Redhawk Parkway. The posted speed limit on Margarita Road is 45 miles per hour (MPH). De Portola Road De Portola Road is located north of the project site and travels in an east-west direction until its connection with Ynez Road to the west, where it runs north-south. De Portola Road is a four-lane divided roadway with a raised median east of Margarita Road, and is a two-lane (one lane in each direction) undivided roadway west of Margarita Road. In the City's General Plan, De Portola Road is designated as a Modified Secondary Arterial west of Margarita Road, and a Major Arterial east of Margarita Road. The posted speed limit on De Portola Road in the vicinity of the study area is 45 MPH. Dartolo Road Dartolo Road is located immediately south of the project site and runs in an east-west direction. Dartolo Road is a relatively short access roadway since it terminates at about 700 feet west from its intersection with Margarita Road. Dartolo Road currently provides primary access to existing uses on the south side of the roadway including an ARCO Gas Station, the Mission Medical Center (a walk-in medical center), and smaller retail uses (dry cleaners, dentist office, etc.). There is no posted speed limit on Dartolo Road. State Route 79 (SR 79) State Route 79 (SR 79) is located south of the project site and is a six-lane (three lanes in each direction) divided roadway with a painted median. SR 79 is designated as a Principal Arterial in the vicinity of the project site in the City's General Plan and is also a State facility maintained by the California Department of Transportation (Caltrans). SR 79 provides regional access to the project site. The posted speed limit on SR 79 is 55 MPH. Thresholds of Significance Initial Study Summerhouse Project -36- Methodology The Short-Term Baseline traffic analysis conducted by DKS contained traffic volumes from the following cumulative developments in the study area: • Proposed Phase 1: 170 bed hospital • Proposed Phase I: 80,000 square foot medical office • Proposed church and ancillary school west of the Temecula Medical Center • Traffic from regional and local background growth Per City requirements, the Intersection Capacity Utilization (ICU) method was applied to assess intersection level of service (LOS) in the study area. The ICU methodology is based on peak hour turn movement volumes and considers the geometric configuration of an intersection when measuring capacity. The ICU method sums the volume-to-capacity (V/C) ratios for the critical movements of an intersection, and thus accounts for the overall performance of intersections which are the most critical limitations within a city's roadway system. LOS is a qualitative description of traffic operations for roadway facilities. Significance Criteria According to the City of Temecula General Plan, the minimum LOS standard has been established at LOS D (0.90 V/C) for peak-hour intersection impacts. Therefore, if a specific project causes an intersection to operate below the minimum standard of LOS D (0.90 V/C) to LOS E or F (0.91 V/C or greater), the project would cause a significant impact at that intersection, and specific mitigation measures would be required to improve the intersection's LOS back to satisfactory levels. 15.a. Less Than Significant Impact. The proposed project consisting of a Tentative Tract Map and a Development Plan consists of the development of 110 senior attached condominium units with recreation areas including a pool, a pedestrian circulation system, and a vehicular circulation system on the approximately 7.32 acre project site. The traffic analysis provided in Section 4.0 of the traffic impact analysis (TIA) indicates that the proposed project would generate approximately 390 trips a day, nine (9) trips during the a.m. peak hour, and 12 trips during the p.m. peak hour. Based on the review of Table E in Section 5.0 of the TIA, the addition of the proposed project's traffic to the a.m. and p.m. peak hour traffic to the Short-Term Baseline Condition would not create a significant traffic impact since it would not cause any changes to the LOS at the study intersections. The traffic added by the proposed project would cause the a.m. volume-to-capacity (V/C) ratio to increase by 0.01 V/C at the intersection of Margarita Road/Dartolo Road, however the intersection would continue to operate at LOS A. The V/C ratios at all other intersections would remain the same compared to the Short- Term Baseline Condition. Therefore, although during the a.m. peak hour the proposed project consisting of a Tentative Tract Map and a Development Plan would result in an increase of 0.01 V/C at the intersection of Margarita Road/Dartolo Road, the intersection would continue to operate at LOS A. In addition, the V/C ratios and LOS at the other five study area intersections would remain the same. Consistent with the City's thresholds of significance defined above, the proposed project consisting of a Tentative Tract Map and a Development Plan would not result in a significant impact due to the addition of project-related trips on the City's existing roadways and intersections in the project vicinity and no mitigation measures would be required. 15.b. Less Than Significant Impact. the two State controlled intersections, same when project traffic is added in individually and cumulatively, would b Initial Study Summerhouse Project Based on the traffic analysis in Section 5.0, the V/C ratios and LOS at Margarita Road/SR 79 and SR 79/Pechanga Parkway would remain the the Short-Term plus Project condition. The addition of project traffic, immeasurable as V/C ratios and LOS would not change. Therefore, -37- the proposed project consisting of a Tentative Tract Map and a Development Plan would not result in a significant impact to County Congestion Management Agency designated roads or highways and no mitigation measures would be required. 15.c. No Impact. The proposed project consisting of a Tentative Tract Map and a Development Plan would not result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in a substantial safety risk. The nearest airports are a private landing strip located approximately 2.5 miles to the northeast and French Valley Airport located approximately six miles to the north. No impact is anticipated and no mitigation measures would be required. 15.d. Less Than Significant Impact. Access to the proposed project consisting of a Tentative Tract Map and a Development Plan would be primarily provided via a new right in/right out, unsignalized driveway on Margarita Road, north of Dartolo Road. The full access driveway would be located approximately 300 feet north of Dartolo Road and would require removal of the existing raised median along Margarita Road to accommodate full access movements. Secondary access would be provided via a new full access driveway on Dartolo Road. Dartolo Road starts at Margarita Road in the east and terminates approximately 750 feet west of its intersection with Margarita Road. The intersection of Margarita Road and Dartolo Road is currently signalized and no mitigation measures would be required. The proposed project's trips would be relatively low compared to the rest of the traffic volumes along Margarita Road. In addition, signalized full-access movements from the site would be available through the secondary access to the Margarita Road/Dartolo Road intersection. In addition, all internal roadways and driveways have been designed in accordance to the City of Temecula's design guidelines including minimum turning radii and line of sight distances at intersections. No impact is anticipated due to a design feature and no mitigation measures would be required. 15.e. No Impact. The proposed project consisting of a Tentative Tract Map and a Development Plan is located approximately one-half mile from the nearest fire station. Access for emergency vehicles would be provided at the secondary (right in/right out) access driveway on Margarita Road and the primary (full) access driveway on Dartolo Road. The project site provides for a 24 foot wide internal loop road with another internal road through the center of the site. Additionally, "hammerhead" driveways are provided at each corner of the site to allow for emergency vehicle and large truck turnaround areas. Therefore, no impact is anticipated due to inadequate emergency access and no mitigation measures would be required. 151 No Impact. Per Table 17.24.040 - Parking Spaces Required, in the City's Development Code, the parking requirement for senior housing is .5 covered parking spaces per dwelling unit plus 1 uncovered space per 5 dwelling units for guest parking. Based on this parking requirement, 55 covered spaces are required and 22 uncovered spaces are required for the 110 attached senior condominium units. Based on review of the site plan, a total of 110 covered parking spaces have been provided for residents and 23 guest parking spaces plus 6 motorcycle spaces have been provided totaling 136 parking spaces by the City's Development Code calculations. Therefore, the project would provide adequate parking consistent with the City's Development Code. Therefore, no impacts related to parking would occur and no mitigation measures would be required. Initial Study Summerhouse Project -38- 15.g. No Impact. The project site is located within walking distance to medical and neighborhood-serving retail services. Bus service for the project site is provided by the Riverside Transit Agency (RTA) with Route 24, which runs nearby the project site along SR 79. The proposed project has been designed in accordance with adopted policies, plans, and programs supporting alternative transportation. No impact is anticipated due to a conflict with an adopted policy, plan, or program supporting alternative transportation and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -39- 16. UTILITIES AND SERVICE SYSTEMS. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a. Exceed wastewater treatment requirements of the X applicable Regional Water Quality Control Board? b. Require or result in the construction of new water or X wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? C. Require or result in the construction of new storm water X drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d. Have sufficient water supplies available to serve the X project from existing entitlements and resources, or are new or expanded entitlements needed? e. Result in a determination by the wastewater treatment X provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f. Be served by a landfill with sufficient permitted capacity to X accommodate the project's solid waste disposal needs? g. Comply with federal, state, and local statutes and X regulations related to solid waste? Comments from May 2006 Initial Study: 16.a. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not exceed the wastewater requirements of the applicable Regional Water Quality Control Board. The proposed project has a "will-serve" letter from the Eastern Municipal Water District (EMWD). The "will-serve" letter indicates that the district will provide service to the proposed project site. No significant impact would occur and no mitigation measures would be required 16.b. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not result in the construction of new water or wastewater treatment facilities or expansion of existing facilities. No impact would occur and no mitigation measures would be required. 16.c. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will not result in the construction of new storm water drainage facilities or expansion of existing facilities. No impact would occur and no mitigation measures would be required. 16.d. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan has sufficient water supplies available to serve the project from existing entitlement and resources. The proposed project site has a "will-serve" letter from the Rancho California Water District (RCWD). Urban Water Management Plan's (UWMP) are required by Water Code Sections 10610 through 10656 of the Urban Water Management Planning Act. Each plan must provide detailed information related to water supply, water demand and reliability for a 25-year period. The proposed project is within the UWMP's future development plan. No impact would occur and no mitigation measures would be required. Initial Study Summerhouse Project -40- 16.e. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan has a "will-serve" letter from the Eastern Municipal Water District (EMWD). No impact would occur and no mitigation measures would be required. 161 Less Than Significant Impact: The project will not result in a need for new landfill capacity. Any potential impacts from solid waste created by the proposed project can be mitigated through participation in Source Reduction and Recycling Programs, which are implemented by the City. Less than significant impacts are anticipated as a result of this project. 16.g. No Impact: The proposed project consisting of a Tentative Tract Map and a Development Plan will comply with federal, state, and local statutes and regulations related to solid waste. No impact would occur and no mitigation measures would be required. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project -41- 17. MANDATORY FINDINGS OF SIGNIFICANCE. Would the project: Potentially Potentially Significant Less Than Significant Unless Significant No Issues and Supporting Information Sources Impact Mitigation Impact Impact Incorporated a Does the project have the potential to degrade the quality of the X environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self- sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b Does the project have impacts that are individually limited, but X cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? c. Does the project have environmental effects which will cause X substantial adverse effects on human beings, either directly or indirectly? Comments from May 2006 Initial Study: 17.a. Potentially Significant Unless Mitigation Incorporated: As discussed in previous Section 1 - 16, above the proposed project site will not cause impacts upon biological or cultural resources that cannot be mitigated to less than significant levels. 17.b. Potentially Significant Unless Mitigation Incorporated: The proposed project consisting of a Tentative Tract Map and a Development Plan is not anticipated to have impacts that are individually limited, but cumulatively considerable that cannot be mitigated to a less than significant level. 17.c. Potentially Significant Unless Mitigation Incorporated: The proposed project consisting of a Tentative Tract Map and a Development Plan is not anticipated to result in any environmental effects upon human beings directly or indirectly that cannot be mitigated to a less than significant level. Comments on July 2008 Initial Study for Summerhouse: The comments and analysis are still valid and up-to-date. No additional significant impacts were noted. No impacts previously noted are more severe than previously noted. No additional or modified mitigation measures are needed beyond those contained in the Mitigation Monitoring Program adopted in conjunction with PA05-0235. Initial Study Summerhouse Project - 42 - 18. EARLIER ANALYSES. Earlier analyses may be used where, pursuant to the tiering program EIR, or other CEQA process, one or more effects have been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case a discussion should identify the following on attached sheets. a. Earlier analyses used. Identify earlier analyses and state where the are available for review. b. Impacts adequately addressed. Identify which affects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed b mitigation measures based on the earlier analysis. C. Mitigation measures. For effects that are "Less than Significant with Mitigation Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. SOURCES In addition to the May 2006 Initial Study and Mitigated Negative Declaration, the following earlier analsysis were used: 1. City of Temecula General Plan, 2005. 2. City of Temecula General Plan Final Environmental Impact Report. 3. South Coast Air Quality Management District CEQA Air Quality Handbook. 4. DKS Associates, Revised Air Quality Impact Analysis Trumark Senior Condominium Development Tentative Tract 33891, Temecula, California, November, 2005. 5. PCR, Results of a Biological Resources Assessment Conducted on the Temecula Tentative Tract No. 33891, Temecula, CA, September 2005. 6. PCR. Results of a Phase I, II and III Burrowing Owl Surveys for the Temecula Tentative Tract No. 33891, Temecula, CA September 2005. 7. PCR, Results of a Tree Survey Conducted on The Temecula Tentative Tract No. 22891, Temecula, CA September 2005. 8. LSA, Cultural Resources Assessment at Tract No. 33891, Temecula, CA, October 2005. 9. Pechanga Band of Luiseno Indian Letter, January 31, 2006. 10. Eastern Information Center, California Historical Resources Information System - Department of Anthropology Letter, University of Riverside California (UCR), September 26, 2005. 11. LSA, Paleontological Resources Assessment at Tract No. 33891, Temecula, CA, October 2005. 12. Converse Consultants, Preliminary Geotechnical Investigation Report, Temecula Ca, May 13, 2005. 13. Tait, Phase I Environmental Assessment Trumark Companies Property 44099, 44155, and 44159 Margarita Road, Temecula, CA, May 20, 2005 14. Tait, Soil Gas Survey Report - Silver Oaks Project Site, Temecula, CA February 10, 2006. 15. RGP, Noise Impact Assessment for Trumark-Temecula Project, Temecula, CA, August 23, 2005. 16. DKS Associates, Revised Trumark Senior Condominium Development Tentative Tract Map 33891 Traffic, Temecula, CA, November, 2005. Initial Study Summerhouse Project -43- 17. DKS Associates, Cumulative Traffic Impact Analysis for Proposed Silver Oaks Development, Temecula, CA February 1, 2006. 18. Temecula Regional Hospital Project EIR, November 2007 Initial Study Summerhouse Project -44- PUBLIC HEARING ITEM NO. 17 Approvals City Attorney Director of Finance City Manager CITY OF TEMECULA AGENDA REPORT TO: City Council FROM: Shawn D. Nelson, City Manager DATE: August 11, 2009 SUBJECT: Parades and Special Events on Public Property Ordinance PREPARED BY: Peter M. Thorson, City Attorney RECOMMENDATION: That the City Council: 1. Introduce and read by title only an ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AFFIRMING THE RIGHTS OF THE PEOPLE TO GATHER FOR EXPRESSIVE ACTIVITIES ON PUBLIC STREETS, SIDEWALKS AND PARKS, ADDING CHAPTER 12.12 TO THE TEMECULA MUNICIPAL CODE ENTITLED PARADES AND SPECIAL EVENTS ON PUBLIC PROPERTY AND AMENDING SECTION 17.04.020 A. OF THE TEMECULA MUNICIPAL CODE PROVIDING THAT CHAPTER 17.04 APPLIES TO TEMPORARY USES AND SPECIAL EVENTS ON PRIVATE PROPERTY 2. Adopt a Resolution entitled: ADOPT THE A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ESTABLISHING THE SPECIAL EVENT PERMIT FEE IN ACCORDANCE WITH CHAPTER 12.12 OF THE TEMECULA MUNICPAL CODE ENTITLED PARADES AND SPECIAL EVENTS ON PUBLIC PROPERTY DISCUSSION: Protection of Free Speech Rights The first section of the proposed Parade and Special Events Ordinance states: 1 "12.12.010 Peoples' Right to Engage in Expressive Activities on Streets, Sidewalks and Parks "A. People may gather on sidewalks and parks for the purpose of expression, dissemination, or communication of opinion, views, or ideas by any means, including, but not limited to, public oratoryand the distribution of literature protected bythe First Amendment to the United States Constitution ("Expressive Activities"), on anydayand at anytime without a permit and without being subject to any City fees or charges. People gathering for such purposes shall complywith all laws and ordinances, including traffic and pedestrian laws and ordinances, and shall be subject to prior use reservations of the parks. (1) The following parks provide good facilities for persons to gather for Expressive Activities: (1) Temecula Duck Pond Park; (2) Ronald Reagan Sports Park picnic shelter area; (3) Margarita Community Park and (4) Town Square at Mercedes St. and Main Street in Old Town Temecula (upon completion). (2) These are not the only parks available for Expressive Activities but they do provide adequate space and parking for such activities. "B. Expressive Activities on a street shall require a Special Events permit under this Chapter. Such events could create safety hazards for participants and disrupt traffic and activities in the areas surrounding the event. The Special Events Permit process under this Chapter will enable the City Manager and the event organizer to mitigate these potential concerns. People who want to hold Special Events involving Expressive Activities on a street, however, shall not be required to: (1) Pay an application fee otherwise required by Sections 12.12.050D and related fees; (2) Provide insurance and indemnification forthe Special Event otherwise required by Section 12.12.070; or (3) Pay Departmental Charges for the City's costs of accommodating the Special Event otherwise required by Section 12.12.080." This first section of the proposed Parade and Special Events Ordinance provides for the peoples' right to engage in free speech expressive activities on public sidewalks, parks and streets. Underthe proposed ordinance, people may gather to engage in free speech expressive activities on sidewalks and parks on any day and at any time, without a permit and without being subject to any City fees or charges, subject to other applicable laws and regulations. Under the proposed ordinance, people need a Special Event Permit to engage in expressive activities on a street, but will not be required to pay an application fee, provide insurance or indemnification, or pay City costs to accommodate the event. This is because of the obvious safety problems that will arise if pedestrians are on a public street. The ordinance provides very detailed grounds for the City Managerto approve or denya Special Events permit for expressive activities in the street in Section 12.12.060. Why Does the City Need this Ordinance? In the 2008 case of Long Beach Area Peace Network v. City of Long Beach, the federal Ninth Circuit Court of Appeals ruled that cities must have very specific ordinances regulating parades and special events on public property. The Court stated that an explicit ordinance clearly specifying the grounds for approval and denial of a parade permit is required to protect the First Amendment free speech rights of persons and prevent the granting the person issuing the permit "unbridled discretion" to issue the permit. The final decision in the Long Beach case with minor modifications was issued on July 24, 2009. The City of Temecula has handled parades and special events under the Municipal Code provision for Temporary Use Permits and public right of way encroachment permits. This process has worked well because the City Staff has worked closely and cooperatively with event organizers to carefully plan for the events and coordinate necessary City services to insure a successful event. Additionally, the City Staff is aware of the numerous constitutional requirements for approval of parade permits and has included those requirements in its process. As good as the City's parade permit process has been, the legal precedents established in the Long Beach case now requires that a new and very detailed ordinance be adopted to govern the issuance of parade and special event permits. The proposed ordinance is very close to the Long Beach ordinance approved by the Court. Those provisions of the Long Beach ordinance that concerned the court have been changed in order to comply with court mandates. Also, as discussed above, the proposed ordinance in the first section 12.12.010 provides significantly greater protections for free speech expressive activities than required by the court. Other Events Require a Special Events Permit Special events, other than the free speech expressive activities described in Section 12.12.010 on sidewalks and parks, require the event organizer to obtain a Special Events Permit. Generally, these include any event in a street and an event of 75 or more persons on other public property. (Special Events are defined in Section 12.12.020.1.) The number of persons was set at 75 because this is the number of persons Staff believes can reasonably be handled at City parks and facilities without any special accommodations. Again, this limit does not apply to free speech expressive activities on sidewalks and parks. Special events include activities such as concerts, parades, circuses, fairs, festivals, block parties, street fairs, community events, mass participation sports (such as marathons and other running events), athletic or sporting events, and community celebrations and observances. Conditions of Annroval of Special Event Permits The proposed ordinance specifically grants the City Manager authority to impose conditions of approval on the Special Events Permit. Sixteen specific conditions are listed that are general summarized as follows: The costs to the City to provide for the Special Event, such as the costs of traffic control devices, police and fire service, except that free speech expressive activities on a streets are not subject to this requirement; 2. Maintain continued access to fire and police emergency services; 3. Clean-up plans; 4. Accommodation of conflicts between special event and affected businesses; 5. Approval of sales of alcohol and the control of alcohol sales and services; 6. Traffic control plans to accommodate vehicle and pedestrian traffic; and 7. Insurance and indemnification of the City entities, except that free speech expressive activities on a streets are not subject to this requirement. As stated earlier, if a person applies for a Special Event Permit for expressive activities in the street, applicant will not be required to: (1) Pay an application fee; (2) provide insurance and indemnification for the Special Event; or (3) pay departmental charges for the City's costs of accommodating the Special Event. Also, the Special Event Permit is not required for expressive activities on sidewalks and parks. Grounds for Denial of Special Event Permit Under the proposed ordinance, the City Manager may deny a Special Event Permit only if he finds that one or more of the 15 specific grounds specified in Section 12.12.060 exist. The most significant of the 15 specific grounds for denial include following: 1. The permitted event or activitywill unreasonably disrupt traffic within the City; 2. The location of the event or activity will cause undue hardship to adjacent businesses or residents; 3. The permitted event or activity will require the diversion of so many public employees that allowing the event would unreasonably deny service to the remainder of the City; 4. The event is proposed for a time and place for which another event permit has been or will be issued to a prior applicant; 5. The proposed area for the assembly or for the set up ordispersal of a parade or demonstration could not physically accommodate the number of participants expected to participate in the assembly, parade or demonstration; 6. The parade, assembly or demonstration is proposed to take place on the roadway portion of any street in a commercial or retail zone between the hours of seven o'clock (7:00) A.M. and ten o'clock (10:00) A.M. or between the hours of four o'clock (4:00) P.M. and six thirty o'clock (6:30) P.M., Monday through Friday, unless the parade, assembly or demonstration will occur on a national holiday; or 7. The proposed event would present an unreasonable danger to the health or safety of the applicant, spectators, City employees, or members of the public. As stated earlier, if a person applies for a Special Event Permit for expressive activities in the street, applicant will not be required to: (1) Pay an application fee; (2) provide insurance and indemnification for the Special Event; or (3) pay departmental charges for the City's costs of accommodating the Special Event. Also, the Special Event Permit is not required for expressive activities on sidewalks and parks. City Sponsored Events. The City is a co-sponsor of many events that take place on City streets such as the Rod Run, or the Susan G. Koman Race for the Cure. Under the proposed ordinance the City Council could decide to continue to be a co-sponsor of special events on public streets, sidewalks and parks. The terms of the City's co-sponsorship would be determined by a sponsorship agreement between the City and the event sponsor and could include payment of City expenses for the event. (Section 12.12.080E.) Special Event Permit Fee The Special Event Permit fee will be the same as the Temporary Use Permit fee for major events. This fee is $300 or $100 for non-profits. Just like the Temporary Use Permit fee, additional fees will be charged for Traffic Control Plans, if required, and public right of way encroachment permits, if required. There will be no increase in fee revenues under the proposed ordinance. Persons who used to obtain a Temporary Use Permit for an event in the public right of way will now be required to obtain a Special Event Permit rather than a Temporary Use Permit. Therefore, the fees collected will be the same, just from different permits. SUMMARY OF ORDINANCE The proposed Ordinance is a comprehensive set of regulations (new Chapter 12.12) governing all aspects of the City's process for dealing with parades and special events on City streets, sidewalks, parks and other City property. The regulations codify the City's procedures for accepting and approving parade and special events permits and implement the constitutional requirements placed on such procedures by the courts in order to protect First Amendment free speech rights. The proposed Ordinance protects the rights of persons to engage in free speech expressive activities on parks and sidewalks, subject to other applicable laws, without permits or the payment of fees or charges. The proposed Ordinance protects the rights of persons to engage in free speech expressive activities on streets. These activities require a Special Event Permit, however, the persons requesting a Special Event Permit for expressive activities on a street will not be required to pay any application fee, obtain insurance or indemnification for the event, nor pay departmental charges for the event. Except for expressive activities on sidewalks and in parks that do not require permits, a Special Event Permit will be required for (1) all events in a street; and (2) events involving 75 or more persons. The proposed ordinance sets forth: (1) the specific information required in an application for a Special Events Permit; (2) the specific findings to be made by the City Manager for approval of a Special Events Permit; (3) the specific types of conditions that may be attached to a Special Events Permit; and (4) the specific grounds for denial of a Special Events Permit. The proposed ordinance also authorizes the City Manager to approve alcoholic beverage sales/consumption on City streets and facilities under the same requirements as are currently in the Municipal Code and to approve the closure of City streets pursuant to the requirements of the Vehicle Code. ENVIRONMENTAL REVIEW Although exempt from the requirements of the California Environmental Quality Act ("CEQA") pursuant to Section 15323 of the State CEQA Guidelines as the regulation of on-going, normal activities on existing City streets and parks, City staff prepared an Initial Study of the potential environmental effects of the approval of the Project. Based upon the findings contained in that Study, City staff determined that there was no substantial evidence that the Project could have a significant effect on the environment and a Negative Declaration was prepared. The approval of the Negative Declaration is provided in Section 4. of the Ordinance. FISCAL IMPACT: None. There will be no increase in fee revenues under the proposed ordinance. Persons who used to obtain a Temporary Use Permit for an event in the public right of way will now be required to obtain a Special Use Permit rather than a Temporary Use Permit. The fees for the new Special Use Permit will be the same as those currently in place for a Temporary Use Permit. Therefore, the fees collected will be the same, just from different permits. ATTACHMENTS: Proposed Parade and Special Events Ordinance Proposed Parade and Special Events Fee Resolution ORDINANCE NO. 09- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AFFIRMING THE RIGHTS OF THE PEOPLE TO GATHER FOR EXPRESSIVE ACTIVITIES ON PUBLIC STREETS, SIDEWALKS AND PARKS, ADDING CHAPTER 12.12 TO THE TEMECULA MUNICIPAL CODE ENTITLED PARADES AND SPECIAL EVENTS ON PUBLIC PROPERTY AND AMENDING SECTION 17.04.020 A. OF THE TEMECULA MUNICIPAL CODE PROVIDING THAT CHAPTER 17.04 APPLIES TO TEMPORARY USES AND SPECIAL EVENTS ON PRIVATE PROPERTY THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Chapter 12.12, Parades and Special Events on Public Property, is hereby added to the Temecula Municipal Code to read as follows: "CHAPTER 12.12 PARADES AND SPECIAL EVENTS ON PUBLIC PROPERTY 12.12.010 Peoples' Right to Engage in Expressive Activities on Streets, Sidewalks, and Parks 12.12.020 Definitions. 12.12.030 Special Event Permit Required; Authority of City Manager to Close Streets and Permit Alcohol Sales and Use 12.12.040 Exceptions to the Special Event Permit Requirement. 12.12.050 Special Event Permit--Application. 12.12.060 Approval, Conditional Approval, Denial or Revocation by City Manager. 12.12.070 Indemnification and Insurance. 12.12.080 Departmental services charge. 12.12.090 Refunds. 12.12.100 Interfering with activity prohibited. 12.12.110 Penalty for violation. 12.12.120 Appeals. 12.12.130 Rules and regulations. 12.12.140 Unlawful to use City name without authorization. 12.12.010 Peoples' Right to Engage in Expressive Activities on Streets, Sidewalks and Parks A. People may gather on sidewalks and parks for the purpose of expression, dissemination, or communication of opinion, views, or ideas by any means, including, but not limited to, public oratory and the distribution of literature protected by the First Amendment to the United States Constitution ("Expressive Activities"), on any day and at any time without a permit and without being subject to any City fees or charges. People gathering for such purposes shall comply with all laws and ordinances, including traffic and pedestrian laws and ordinances, and shall be subject to prior use reservations of the parks. (1) The following parks provide good facilities for persons to gather for Expressive Activities: (1) Temecula Duck Pond Park; (2) Ronald Reagan Sports Park picnic shelter area; (3) Margarita Community Park and (4) Town Square at Mercedes St. and Main Street in Old Town Temecula (upon completion). (2) These are not the only parks available for Expressive Activities but they do provide adequate space and parking for such activities. B. Expressive Activities on a street shall require a Special Events permit under this Chapter. Such events could create safety hazards for participants and disrupt traffic and activities in the areas surrounding the event. The Special Events Permit process under this Chapter will enable the City Manager and the event organizer to mitigate these potential concerns. People who want to hold Special Events involving Expressive Activities on a street, however, shall not be required to: (1) Pay an application fee otherwise required by Sections 12.12.050D and related fees; (2) Provide insurance and indemnification for the Special Event otherwise required by Section 12.12.070; or (3) Pay Departmental Charges for the City's costs of accommodating the Special Event otherwise required by Section 12.12.080. 12.12.020 Definitions As used in this Chapter, the following words shall have then meanings set forth in this Section unless the context clearly requires a different meaning. A. "Block party" means a Special Event in which one or more blocks in a single family residential neighborhood are closed for the purpose of a special event for the persons residing in that neighborhood B. "City Manager" means the City Manager of the City of Temecula and his/her designee. C. "Departmental services charges" means the actual costs that a department of the City incurs in connection with activities for which a Special Event Permit is required 2 under this Chapter; including, but not limited to, costs associated with fire safety, traffic and/or pedestrian control, water safety, the closure of streets or intersections, the diverting of traffic, the salaries of City personnel involved in administration or coordination of City services for the event, the cost to the City to provide support personnel, equipment, materials, and supplies, and related City costs such as administrative overhead, employee benefits or employee overtime. D. "Expressive Activity" means conduct, of which the sole or principal object is the expression, dissemination, or communication of opinion, views, or ideas by any means; including, but not limited to, public oratory and the distribution of literature protected by the First Amendment to the United States Constitution . E. "Event Organizer" means any person who conducts, manages, promotes, organizes, or solicits attendance for a Special Event. F. "Park" means any City park or recreational facility except for the City Skate Park. Park does not include: Temecula Library, Temecula Old Town Community Theater; Children's Museum; Historical Museum; Community Recreation Center building, Community Center building on Pujol Street or designated park maintenance areas. G. "Person" means any natural person, firm, association, joint venture, joint stock company, partnership, organization, club, company, corporation, business trust, or manager, lessee, agent, servant, officer or employee or any of these. H. "Sidewalk" means that portion of a street or highway, other than the roadway, set apart for pedestrian travel by curbs, barriers, markings, or other delineation. "Special Event" means: 1. Except as otherwise provided in Section 12.12.010 for Expressive Activities, any organized formation, procession, or assembly of persons, animals, vehicles, or any combination thereof, that assembles or travels in unison on any sidewalk, or other public right-of-way owned or controlled by the City, State of California or County of Riverside, other than a street, consisting of seventy five (75) or more persons; or 2. Any organized formation, procession or assembly of persons, animals, vehicles, or any combination thereof, that assembles or travels in unison for any purpose, including Expressive Activities, on any street; or 3. Except as otherwise provided in Section 12.12.010 for Expressive Activities, any organized assemblage of seventy five (75) or more persons at any public place, property or facility that gathers for a common purpose under the direction or control of a person; or 4. Except as otherwise provided in Section 12.12.010 for Expressive Activities, any other organized activity involving seventy five (75) or more persons conducted by a person for a common or collective use, purpose or benefit which activity involves the use of public property or facilities and 3 which may require the provision of City public services for street blockage, erecting barriers, construction, traffic control, crowd control. 5. Examples of Special Events include, but are not limited to, concerts, parades, circuses, fairs, festivals, block parties, street fairs, community events, mass participation sports (such as marathons and other running events), athletic or sporting events, and community celebrations and observances conducted on public property or public rights of way, other than Expressive Activities. J. "Special Event Permit" means a permit issued pursuant to this Chapter K. "Spontaneous Event" means any Special Event involving Expressive Activity that is occasioned by news or affairs coming into public knowledge within five (5) days of Special Event and is conducted in a public street. L. "Street" means a way or place of whatever nature, publicly maintained and open to use of the public for purposes of vehicular travel, including highways or alleys, owned or controlled by the City, State of California, or County of Riverside. 12.12.030 Special Event Permit Required; Authority of City Manager to Close Streets and Permit Alcohol Sales and Use A. Special Event Permit Required. Except as otherwise provided in Section 12.12.010 for Expressive Activities, no person shall conduct, cause to be conducted, participate or engage in, hold, manage, permit, or allow another to conduct a Special Event without first having obtained a written Special Event Permit issued by the City Manager pursuant to the procedures established in this Chapter. B. Authority of City Manager to Approve Sale and/or Use Alcoholic Beverages. The City Manager may approve and permit the sale or use of alcoholic beverages in public areas in connection with a Special Event Permit, even where such sale or use is otherwise prohibited by this Code, provided that such sale or use shall, at all times, comply with all other applicable provisions of law and the terms of the Special Event Permit. C. Authority of City Manager to Close Streets. Pursuant to Vehicle Code Section 21101(e) and other applicable law, the City Council hereby designates the City Manager as the city employee with authority to temporarily close a portion of any street for celebrations, parades, Special Events, and other purposes when, in the opinion of the City Manager, the closing is necessary for the safety and protection of persons who are to use that portion of the street during the temporary closing. This authority exists whether or not the closure is in connection with a permit issued under this Chapter. D. City Not Obligated to Provide Support for Special Event. Issuance of a Special Events Permit pursuant to this Chapter does not obligate or require the City to provide City services, equipment, or personnel in support of an event. The City Manager may nevertheless provide such services, equipment or personnel if such are reasonably available and the event organizer makes provisions to reimburse the City for the cost thereof. E. Traffic Control Plan Required. A Traffic Control Plan shall be required if the Applicant proposes to close or partially close any traffic lanes within a street. The Traffic Control Plan shall be submitted by the Applicant and approved by the City Traffic Engineer in accordance with the Public Works Department's Guidelines for Preparation of Traffic Control Plans. 12.12.040 Exceptions to the Special Event Permit req uirement. A. The following activities are exempt from the Special Event Permit requirement 1. Expressive Activities described in Section 12.12.010 A. 2. Funeral processions by a licensed mortuary or funeral home; 3. Activities conducted by a governmental agency acting within the scope of its authority; 4. Filming activities governed by the other provisions of the Temecula Municipal Code; 5. Spontaneous Events subject to the provisions of subsection B. 6. Events in rooms rented to the public in City facilities. B. Spontaneous Events 1. Spontaneous Events held on a sidewalk or park do not require any permits (Section 12.12.010). 2. If a Spontaneous Event is to be held on a street or City facility other than a sidewalk or park, the organizers thereof shall give written notice to the City Manager at least twenty four (24) hours prior to such parade or assembly. Such written notice shall contain all of the following information: a. The name, address, and telephone number of the event organizer, who shall be considered a permittee for the purposes of this section; b. The name, address, and telephone number of the headquarters of the event organizer and, if an organization is an event organizer, the responsible head of such organization; C. The name, address, and telephone number of the person who will chair the Spontaneous Event and who will be responsible for its conduct; d. The location and date of the proposed Spontaneous Event, including the assembly area, disbanding area, and route to be traveled; 5 e. An estimate of the approximate number of persons who will be participating in the Spontaneous Event and an estimate of the approximate number of persons who will be observing the parade or assembly; f. The time at which the Spontaneous Event will start and conclude; and g. The type of security or other arrangements that will be provided to assure that participants are properly directed. 3. The City Manager may impose reasonable time, place, and manner restrictions on Spontaneous Events in a street as provided in Section 12.12.060 whether or not said activities are governed by the permit requirements set forth in this Chapter. 4. The City Manager may deny permission to conduct a Spontaneous Event if the City Manager makes a finding requiring denial pursuant to section 12.12.060. a. Such finding by the City Manager shall be made no later than six (6) hours before the scheduled start time for the event. If the City Manager denies permission for a Spontaneous Event, the City Manager shall immediately provide notice of the denial, including the reason or reasons for the denial, by telephone to the event organizer, and shall also provide written notice of the denial including the reason for the denial. If the event organizer provides a fax number for the purpose of receiving notices, the City Manager shall provide written notice of the denial by fax immediately upon making the denial decision. b. In lieu of denial, the City Manager may propose to the event organizer an alternative time, route, venue, or manner of conducting the activity that would be acceptable to the City and that would obviate any finding made pursuant to section 12.12.070. 12.12.050 Special Event Permit--Application. A. Filing of Application. The application for a Special Event Permit under this Chapter shall be filed with the City Manager. B. Time for Filing Application. Applications shall be filed not less than sixty (60) calendar days, nor more than one (1) year before the time it is proposed to conduct the Special Event; except for the following: 1. Applications for Block Parties shall be filed at least ten (10) working days prior to the event. 2. Applications for Special Events involving Expressive Activities in a street shall be filed no earlier than one year before the event and no later 6 than ten (10) working days before any event to take place on a street or public facility other than a sidewalk or park. C. Waiver of Appeal. If an applicant for an event involving an expressive activity or block party desires to ensure the opportunity for an appeal to the City Council in accordance with subsection 12.12.140.A, the application shall be filed with the City Manager not less than thirty (30) calendar days, nor more than one year before the time when it is proposed to conduct the event. Failure to file the application at least thirty (30) days prior to the proposed activity shall be deemed to be a waiver of an appeal to the City council and in that event the decision of the City Manager shall be final and the event organizer or other aggrieved person may file or cause to be filed a petition for writ of mandate in state court regarding the validity of the City Manager's decision to grant or deny the application. D. Application Fee. Except as otherwise provided by this Chapter or other applicable law, rule or regulation any permit fee, application fee, daily fee, and other additional fee (other than departmental services charges) for the use of City streets or other City owned or controlled property pursuant to this Chapter shall be established by the City council by resolution. As provided in Section 12.12.010, an application fee shall not be charged for any expressive activity on a sidewalk or park nor for a Special Event involving expressive activity in a street. E. Expedited Processing. The City Manager shall have the authority, if good cause is shown and the nature of the application reasonably and feasibly lends itself to expedited processing, to consider, grant, or deny any application filed later than the time prescribed in this section. F. Authority to Accept Late Application. Except as otherwise provided by this Code, the City Manager shall determine whether or not a Special Event Permit application is complete within ten (10) business days. In the case of an event involving expressive activity, the City Manager shall determine whether or not such application is complete within twenty four (24) hours. Notwithstanding the City Manager's acceptance of a completed application, no Special Event date shall be considered confirmed until a Special Event Permit is issued. G. Information Required in Application. Special Event Permit applications shall be upon a form furnished by or acceptable to the City Manager and shall contain full, complete, and detailed information including, but not limited to, the following: The name, address, and telephone number of the event organizer; 2. Except as provided in Section 12.12.010 for Expressive Activities, a certification that the event organizer shall be financially responsible for any City fees, departmental services charges or costs that may lawfully be imposed for the event; 3. The name, address, and telephone number of the event organizer, if any, and the chief officer of the event organizer; 4. If the Special Event is to be held by, on behalf of, or for any organization other than the event organizer, the event organizer shall file a written communication from such organization: a. Authorizing the event organizer to apply for the Special Event Permit on its behalf; and b. Certifying that the event organizer and its principal shall be financially responsible for any City fees, departmental services charges or costs that may lawfully be imposed for the event; 5. A copy of the tax exemption letter issued for any applicant claiming to be a tax exempt nonprofit organization; 6. A statement of the purpose of the Special Event; 7. A statement of any fees to be charged to participants or spectators in connection with the Special Event; 8. The proposed location of the Special Event including a plot plan depicting the placement of temporary structures or facilities on public property or public rights-of-way; 9. The date and times when the Special Event is to be conducted; 10. The approximate times when assembly for, and disbanding of, the Special Event is to take place; 11. The proposed locations of the assembly or production area; 12. In the case of a parade, marathon, or other similar event, the specific proposed site or route, including a map and written narrative of the route; 13. The proposed location for any disbanding area; 14. Proposed alternate routes, locations, or times, where applicable; 15. The approximate number of persons, animals, or vehicles that will participate in the Special Event; 16. The kinds of animals anticipated to be part of the Special Event; 17. A description of the types of vehicles to be used in the Special Event; 18. The number of bands or other musical units and the nature of any equipment to be used to produce sounds or noise; 19. Other equipment or services necessary to conduct the Special Event with due regard for participant and public health and safety; 8 20. The number of persons proposed or required to monitor or facilitate the Special Event and provide spectator or participant control and direction for events using City streets, sidewalks, or facilities; 21. Provisions for first aid or emergency medical services, or both, based upon event risk factors; 22. Except as provided in Section 12.12.010 for Expressive Activities, insurance information; 23. Any special or unusual requirements that may be imposed or created by virtue of the proposed event activity; 24. Any other information reasonably required by the City Manager 12.12.060 Special Events Permit-Approval, Conditional Approval, Denial or Revocation by City Manager. A. Time for Decision. Completed applications for a permit authorizing a Special Event shall be denied, approved, or conditionally approved by the City Manager within thirty (30) days after the City Manager determines that the application is complete. Completed applications for a permit involving "expressive activity" as defined in this Chapter shall be denied, approved, or conditionally approved by the City Manager within five (5) business days after the City Manager determines that the application is complete. In the case of Special Event Permit involving expressive activity on a street, the City Manager shall promptly attempt to notify the applicant orally, and provide written notification to the applicant as soon as it is reasonably practical to do so. Such notice shall provide detailed facts and reasons for any denial or conditional approval. The City Manager shall consult with the City attorney before denying or conditionally approving a permit involving expressive activity (including all activities wherein the applicant claims or contends that the proposed event involves expressive activity) as that term is defined in this Chapter. B. Conditions of Approval. The City Manager may approve any Special Event Permit with reasonable conditions concerning the time, place, or manner of holding such event as is necessary to coordinate multiple uses of public property, assure preservation of public property and public places, prevent dangerous, unlawful or impermissible uses, protect the safety of persons and property and to control vehicular and pedestrian traffic in and around the venue, provided that such requirements shall not be imposed in a manner that will unreasonably restrict expressive or other activity protected by the California or United States Constitutions. Conditions imposed by the City Manager may include, but are not limited to, the following: 1. The establishment of an assembly or disbanding area for a parade or similar event; 2. The accommodation of an event's pedestrian and vehicular traffic, including restricting events to City sidewalks, portions of a City street, or other public right-of-way; 3. Conditions designed to avoid or lessen interference with public safety functions and/or emergency service access; 4. Limiting the number and type of vehicles, animals, or structures to be displayed or used in the event; 5. The inspection and approval by City personnel of stages, booths, floats, structures, vehicles, or equipment to be used or operated in the event to ensure that such structures or vehicles are safely constructed, can be safely operated, and conform to the requirements of all applicable codes; 6. A cleaning deposit if the event includes using structures, displaying or using horses or other large animals, operation of water stations, food distribution or sales, beverage distribution or sales, and/or sale of other goods or services; 7. The provision and use of traffic cones or barricades; 8. The provision or operation of first aid stations or sanitary facilities, including handicap accessible sanitary facilities; 9. The provision of a waste management plan, and the clean up and restoration of the site of the event; 10. Limits on the use of sound amplification equipment or restrictions on the amount of noise generated by motors and other equipment used in the course of the event; 11. Provision of reasonable notice of permit conditions to event participants and to those businesses or residents who may be directly affected by the conduct of the event; 12. The provision or use of emergency services; 13. The reasonable designation of alternate sites, times, dates, or modes for exercising expressive activity; 14. The obtaining of any and all business licenses or other necessary permits required by this code for the sale of food, beverage, or other goods or services at the event; and 15. The manner by which alcohol sales and service, if any, shall be conducted at the event. 16. Implementation of a Traffic Control Plan approved pursuant to Section 12.12.030E. C. Specific Grounds for Approval. The City Manager shall issue a permit under this Chapter if the City Manager finds that the following criteria have been met: 10 1. The proposed use of the property is not governed by or subject to any other permit procedures provided elsewhere in this code or other applicable laws, rules or regulations; 2. The event will not substantially interrupt the safe and orderly movement of aerial or marine navigation; 3. The event will not substantially interrupt public transportation or other vehicular and pedestrian traffic in the area of its location; 4. The event will not conflict with construction or development in the public right of way or at a public facility; 5. The event will not require the diversion of public safety or other City employees from their normal duties so as to unreasonably reduce adequate levels of service to any other portion of the City; 6. The concentration of persons, animals or vehicles will not unreasonably interfere with the movement of police, fire, ambulance, and other public safety or emergency vehicles on the streets; 7. The event will not unreasonably interfere with any other Special Event for which a permit has already been granted or with the provision of City services in support of other scheduled events or scheduled government functions; 8. The event will not have an unmitigatible adverse impact upon residential or business access and traffic circulation in the same general venue area; 9. The event will not adversely affect the City's ability to reasonably perform municipal functions or furnish City services; 10. The proposed use, event or activity will not have a significant adverse environmental impact; 11. That in the case of a block party or other similar neighborhood event, the applicants have submitted a petition in favor of the event which has been signed by individuals representing at least sixty six percent (66%) of the households on the block affected by the permit; 12. That the provisions of sections 12.12.070 and 12.12.080, if applicable, have been or will be satisfied. D. Specific Grounds for Denial. The City Manager may deny any application for a Special Event Permit or revoke any such permit if the City Manager finds any of the following: 1. The permitted event or activity will unreasonably disrupt traffic within the City; or 11 2. The permitted event or activity will unreasonably interfere with access to police or fire stations, or other public safety facilities; or 3. The location of the event or activity will cause undue hardship to adjacent businesses or residents; or 4. The permitted event or activity will require the diversion of so many public employees that allowing the event would unreasonably deny service to the remainder of the City; or 5. The application contains incomplete, false or misleading information; or 6. The City Manager is unable to make all of the relevant findings pursuant to subsection 12.12.060C; or 7. The applicant fails to comply with all terms of this Chapter including failure to remit all fees and deposits, or fails to provide proof of insurance and/or an indemnification agreement as required by this Chapter; or 8. The event is proposed for a time and place for which another event permit has been or will be issued to a prior applicant; or 9. The proposed area for the assembly or for the set up or dispersal of a parade or demonstration could not physically accommodate the number of participants expected to participate in the assembly, parade or demonstration; or 10. The parade, assembly or demonstration is proposed to take place on the roadway portion of any street in a commercial or retail zone between the hours of seven o'clock (7:00) A.M. and ten o'clock (10:00) A.M. or between the hours of four o'clock (4:00) P.M. and six thirty o'clock (6:30) P.M., Monday through Friday, unless the parade, assembly or demonstration will occur on a national holiday; or 11. The parade, assembly or demonstration will violate any federal, state or local law or regulation; or 12. The applicant is legally incompetent to contract or to sue and be sued; or 13. The applicant or the person or entity on whose behalf the application for permit was made has on prior occasions damaged City property and has not paid in full for such damage, or has other outstanding and unpaid debts to the City; or 14. The proposed event would present an unreasonable danger to the health or safety of the applicant, spectators, City employees, or members of the public; or 12 15. The applicant has not complied or cannot comply with applicable licensure requirements, ordinances or regulations of the City concerning the sale, offering for sale, or distribution of any goods or services. E. No Consideration of Content. In determining whether to approve, deny, or revoke a Special Event Permit for an event involving expressive activity, no consideration may be given to the message of the event, the content of the speech, the identity or associational relationships of the event organizer or its members or affiliates, or to any assumptions or predictions as to the amount of hostility which may be aroused in the public by the content of the speech or the message conveyed during the event. F. Referral to City Departments. The City Manager may refer a Special Event Permit application to such appropriate City departments as the City Manager deems necessary from the nature of the application for review, evaluation, investigation, and recommendations by the departments regarding approval or disapproval of the application. G. False or Misleading Statements. The City Manager may deny any application for a permit or revoke any permit if the City Manager determines that the event sponsor or any agent, employee or associate of any such event organizer has willfully made any false or misleading statement in an application or has not fully complied with the requirements of this Chapter or has violated any of the provisions of this Chapter or the provisions of any other applicable law, rule or regulation. H. Notice of Decision. An event organizer whose permit application is denied, or whose permit is revoked, pursuant to this section shall be immediately notified of the action of denial or revocation, which notification shall contain a statement setting forth the reasons for said denial or revocation as well as a reference to the appeal provisions set forth in section 12.12.140. Notification, pursuant to this subsection, shall be deemed satisfied when the notice is placed, postage prepaid, in the United States mail, certified mail, return receipt requested, and addressed to the applicant at the address shown on the permit application. I. Term of Permit. No Special Event Permit issued under this Chapter shall be for a period of more than two (2) consecutive days except as otherwise provided in this code. Notwithstanding the foregoing, the City Manager shall, upon timely application by a permittee, extend the duration of any Special Event Permit for one additional period of not more than three (3) consecutive days if the City Manager finds that all criteria set forth in subsection 12.12.050.J are being met and will continue to be met during the period of term extension. 12.12.070 Indemnification and Insurance A. Not Applicable to Expressive Activities. The provisions of this Section shall not be applicable to expressive activities as specifically provided in Section 12.12.010. B. Indemnification Required. Except as otherwise provided in this section, each permit shall expressly provide that the permittee agrees to defend, protect, indemnify and hold the City, Temecula Community Services District, Redevelopment Agency of the City of Temecula and their officers, employees, volunteers and agents ("Indemnified Parties") free and harmless from and against any and all claims, damages, expenses, 13 loss or liability of any kind or nature whatsoever arising out of, or resulting from, the alleged acts or omissions of permittee, its officers, agents or employees in connection with the permitted event or activity; and the permit shall expressly provide that the permittee shall, at permittee's own cost, risk and expense, defend any and all claims or legal actions that may be commenced or filed against the Indemnified Parties, and that permittee shall pay any settlement entered into and shall satisfy any judgment that may be rendered against the City, its officers, agents or employees as a result of the alleged acts or omissions of permittee or permittee's officers, agents or employees in connection with the uses, events or activities under the permit. C. Insurance Required. Except as otherwise provided in this section, concurrent with the issuance of a permit under this Chapter and as a condition precedent to the effectiveness of the permit, the permittee shall procure and maintain in full force and effect during the term of the permit insurance as prescribed in regulations issued by the City Manager. If the City Manager determines, after consultation with the City's risk manager and the City attorney, that a particular Special Event does not present a substantial or significant public liability or property damage exposure for the Indemnified Parties, the City Manager shall give a written waiver of some or all insurance requirements of this section. D. Block Parties. The applicant for a Special Event Permit for a block party shall not be required to indemnify the City for potential injuries that may occur at the block party. The applicant for the Special Event Permit for a block party shall, however, be required to provide the insurance required by this Section through his or her own purchase of such a policy or through the payment of a fee for special City-provided insurance. 12.12.080 Departmental services charge A. Not Applicable to Expressive Activities. The provisions of this Section shall not be applicable to expressive activities as specifically provided in Section 12.12.010. B. Applicant to Pay for Departmental Charaes. In addition to the payment of the nonrefundable permit application fee or daily fee, a Special Event permittee shall pay the City for all City departmental services charges incurred in connection with or due to the permittee's activities under the permit. Additionally, if City property is destroyed or damaged by reason of permittee's Special Event, the permittee shall reimburse the City for the actual replacement or repair cost of the destroyed or damaged property. D. Time for Final City Invoices. City departments shall submit the final invoices and billings for departmental services charges to the City Manager or no later than twenty (20) business days after the event giving rise to the issuance of a permit. E. City's Co-Sponsorship of a Special Event. The City Council shall decide whether the City will cosponsor a Special Event and, if so, the extent to which the City will participate in the funding of the costs of the event, fees, or department service fees based on the following factors: (1) advertisement and promotion of the City in a positive light; (2) encouragement of visitors and customers to the City or to a portion of the City; (3) recreational, cultural and educational opportunities for persons in the City; and (4) and similar public purposes. If the Council decides to cosponsor a Special Event, it shall enter into a sponsorship agreement with the permittee describing the City's contributions in addition to the Special Event Permit. 14 F. Time for Payment of Deposit and City Department Service Charges. Unless otherwise authorized by the City Manager in writing, at least three (3) days prior to a Special Event Permitted under this Chapter, the applicant shall pay to the City a deposit in an amount sufficient to cover the total estimated City departmental services charges that the City Manager estimates will be incurred in connection with the permit. Said deposit shall be paid in cash or other adequate security as determined by the City Manager. If the deposit is less than the final charges calculated pursuant to section 12.12.100, the permittee shall pay the difference to the City within ten (10) working days of being invoiced for such charges from the City. If the deposit is more than such final charges, the City shall refund the difference to the permittee within the sixty (60) days after the event. 12.12.090 Refunds. If a permittee is unable to hold or conduct a Special Event due to inclement weather or some other cause not within the permittee's control, and the permittee submits a written request for the refund of such fees to the City Manager's office within ten (10) days after the date that the use, event or activity was to have been held or conducted, the City Manager may authorize the refund of the fees or a pro rata portion thereof, except for actual costs incurred by the City at the time of cancellation and the nonrefundable application fees, which have been paid by the permittee to the City in connection with a permit issued under this Chapter. 12.12.100 Interfering with activity prohibited. It is unlawful for any person to obstruct, impede or interfere with any authorized assembly, person, vehicle or animal participating in a Special Event for which a Special Event Permit has been issued. 12.12.110 Penalty for violation Violation of the provisions of this Chapter may be enforced pursuant to the enforcement provisions set forth in Title 1 of this code. 12.12.120 Appeals. A. Except as provided in this Chapter, any person aggrieved by any decision of the City Manager made pursuant to this Chapter may appeal such decision to the City council by filing a written notice of such appeal with the City clerk within ten (10) business days of the decision of the City Manager giving rise to said appeal. Such appeal shall set forth, with particularity, the facts upon which the appeal is being made. The City council shall, within sixty (60) days of receiving such notice of appeal, hold a hearing. At such hearing, the aggrieved party is entitled to be heard and present evidence on his/her behalf. The City council shall determine the merits of the appeal, and the City council's determination to grant or deny the appeal shall be final. When the necessity for a timely response so requires, the City council may refer to the matter to a hearing officer. B. Alternatively to the provisions of subsection 12.12.050.E, any applicant for a Special Event Permit who is engaging in or intends to engage in "expressive activity" as defined in this Chapter and who is aggrieved by decision of the City Manager made 15 pursuant to this Chapter may, at his/her election, appeal to the City council in accordance with this section. However, any appeal taken pursuant to this section may, by necessity, involve the postponement or delay of the activity for which a permit is sought. 12.12.130 Rules and regulations The City Manager is authorized to promulgate additional policies, rules and regulations that are consistent with and that further the provisions set forth within this Chapter and the provisions of law that pertain to the conduct and operation of a Special Event. 12.12.140 Unlawful to use City name without authorization. It is unlawful for any event organizer to use in the title of the event the words "The City of Temecula" or "City of Temecula", or facsimile of the seal or logo of the City of Temecula without City Council's prior written authorization." Section 2. Section 17.04.020 A. of the Temecula Municipal Code is hereby amended to read as follows: "A. Purpose and Intent. 1. The provisions of this Chapter shall govern special events and temporary uses on private property. Special events on public property shall be governed by Chapter 12.12 of the Temecula Municipal Code, Parades and Special Events on Public Property. 2. The temporary use permit allows for short-term activities, typically less than one year in duration, which may be appropriate when regulated. Some activities associated with a master temporary use permit for automobile and truck dealerships may exceed one year in duration." Section 3. Procedural Findings The City Council of the City of Temecula does hereby find, determine and declare that: A. This Ordinance was processed and an environmental review was conducted as required by the California Environmental Quality Act and the Temecula Municipal Code. B. The Planning Commission of the City of Temecula held a duly noticed public hearing on March 18, 2009, to consider the proposed amendments at which time the City staff and interested persons had an opportunity to, and did testify either in support or opposition to the matter. C. Following consideration of the entire record of information received at the public hearing and due consideration of the proposed amendments, the Planning Commission adopted Resolution No. 09-06, recommending that the City Council approve the proposed amendments to Titles 12 17 of the City of Temecula Municipal Code. D. On July 28, 2009, the City Council of the City of Temecula held a study session on the Ordinance at which time members of the public had the opportunity to comment on the Ordinance. 16 E. On August 11, 2009, the City Council of the City of Temecula held a duly noticed public hearing on the Ordinance at which time all persons interested in the Ordinance had the opportunity to and did address the City Council on Ordinance and the matters set forth therein and following receipt of all public testimony closed the hearing. Section 4. Environmental Findings. The City Council hereby makes the following environmental findings and determinations in connection with the approval of this Ordinance (the "Project"): A. Although exempt from the requirements of the California Environmental Quality Act ("CEQA') pursuant to Section 15323 of the State CEQA Guidelines as the regulation of on-going, normal activities on existing City streets and parks, City staff prepared an Initial Study of the potential environmental effects of the approval of the Project. Based upon the findings contained in that Study, City staff determined that there was no substantial evidence that the Project could have a significant effect on the environment and a Negative Declaration was prepared. B. Thereafter, City staff provided public notice of the public comment period and of the intent to adopt the Negative Declaration as required by law. The public comment period commenced on March 2, 2009 and expired on April 16, 2009. Copies of the documents have been available for public review and inspection at the offices of the Department of Community Development, located at City Hall, 43200 Business Park Drive, Temecula, California 92589. C. The City Council has reviewed the Negative Declaration and all comments received regarding the Negative Declaration prior to and at the August 11, 2009 public hearing, and based on the whole record before it, finds that: (1) the Negative Declaration was prepared in compliance with CEQA; (2) there is no substantial evidence that the Project will have a significant effect on the environment; and (3) the Negative Declaration reflects the independent judgment and analysis of the City Council. D. Based on the findings set forth in this Resolution, the City Council hereby adopts the Negative Declaration prepared for the Project. Section 5. If any portion, provision, section, paragraph, sentence, or word of this Ordinance is rendered or declared to be invalid by any final court action in a court of competent jurisdiction, or by reason of any preemptive legislation, the remaining portions, provisions, sections, paragraphs, sentences, and words of this Ordinance shall remain in full force and effect and shall be interpreted by the court so as to give effect to such remaining portions of the Ordinance. Section 6. The City Clerk shall certify to the adoption of this ordinance and cause the same to published as required by law. 17 PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this day of , Mayor ATTEST: Susan W. Jones, MMC City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 09- was duly introduced and placed upon its first reading at a meeting of the City Council of the City of Temecula on the 11th day of August, 2009, and that thereafter, said Ordinance was duly adopted by the City Council of the City of Temecula at a meeting thereof held on the day of , , by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Susan W. Jones, MMC City Clerk 18 RESOLUTION NO. 09- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ESTABLISHING THE SPECIAL EVENT PERMIT FEE IN ACCORDANCE WITH CHAPTER 12.12 OF THE TEMECULA MUNICPAL CODE ENTITLED PARADES AND SPECIAL EVENTS ON PUBLIC PROPERTY THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Findings. The City Council of the City of Temecula hereby finds and determines that: A. On July 28, 2009, the City of Temecula (the "City") introduced Ordinance No. 09- , entitled "An Ordinance of the City Council of the City of Temecula adding Chapter 12.12 to the Temecula Municipal Code entitled Parades and Special Events on Public Property and amending Chapter 17.04.020 A. of the Temecula Municipal Code providing that Chapter 17.04 applies to temporary uses and special events on private property". B. Section 12.12.050.D. will allow the City to establish a fee for Special Event Permits. No application shall be considered to be accepted and scheduled to be processed pursuant to this development code prior to the determination by the director of planning that the application is complete. Payment in full of the required fees for processing the application, as established by the city council. C. The City Council desires to set the amount of the Special Event Permit fee as authorized in Section 12.12.050.D. D. The Special Event Permit fee collected pursuant to this Resolution shall be used to cover the costs of staff reviewing the activities and scope of the permit. E. The Special Event Permit fee does not exceed the estimated reasonable cost of providing the service for which the fee is charged. F. The findings set forth above are hereby adopted in support of this Resolution. Section 3. Special Event Permit Fee Schedule. In accordance with Section 12.12.050.D., the following fee schedule for the Special Event Permit is hereby adopted consisting of one processing fee of three hundred dollars {$300} or one hundred dollars ($100) for non-profits. Section 6. Effective Date. This Resolution shall become effective on the date Ordinance No. 09- becomes effective. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 11th day of August, 2009. Maryann Edwards, Mayor ATTEST: Susan W. Jones, MMC City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA } I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 09- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 11 th day of August, 2009, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Susan W. Jones, MMC City Clerk