HomeMy WebLinkAbout97-20 CC Ordinance' ORDINANCE NO. 97 -20
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TEMECULA APPROVING THAT CERTAIN
DEVELOPMENT AGREEMENT ENTITLED "AMENDMENT
AND RESTATEMENT OF DEVELOPMENT AGREEMENT,
SPECIFIC PLAN NO. 199, VILLAGE A, PLANNING AREAS
33 TO 38, 40 TO 44 AND 46, PLANNING APPLICATION
NO. PA97 -0204 `MARGARITA VILLAGE,' TEMEKU HILLS
DEVELOPMENT PARTNERS, L.P. AND UDC HOMES,
INC."
THE CITY COUNCIL OF THE CITY OF TEMECULA, STATE OF CALIFORNIA,
DOES ORDAIN AS FOLLOWS:
Section 1. Temeku Hills Development Partners, L. P. filed Planning Application No.
PA97 -0204 in accordance with the City of Temecula General Plan and Development Code. Public
hearings have been held before the Planning Commission and City Council of the City of
Temecula, State of California, pursuant to the Planning and Zoning laws of the State of
California, and the City Code of the City of Temecula.
' Section 2. Environmental Compliaac C. Environmental Impact Report No. 202 was
prepared for Specific Plan No. 199 and was certified by the Riverside County Board of
Supervisors. In conjunction with Amendment No. 2 to the Specific Plan, a number of additional
studies were undertaken to update and complement the original EIR. The additional studies, a
geotechnical study, traffic study and a Kangaroo Rat trapping and update study, confirmed the
validity of the original analysis.
It has been eleven (11) years since the original environmental analysis was
performed for this project. Therefore, Staff prepared another Initial Environmental Assessment
to examine the question of whether any impacts beyond those analyzed in the previous EIR and
subsequent studies would result from the proposed project, changes in circumstances, or new
information. In areas where there was a potential change in circumstances, specifically traffic,
noise, and lighting, staff requested additional information from the applicant. Based upon Staff's
analysis, the project is consistent with the information contained in the previously certified EIR.
Due to the limited scope of the proposed changes to the specific plan, there will be no effect
beyond that which was reviewed in the previous analysis.
Under California Public Resources Code Section 21166 and Section 15162
of the California Environmental Quality Act (CEQA) Guidelines, no additional EIR is required
unless additional impacts not previously considered, or substantial increases in the severity of
' impacts, may result from: substantial changes in the circumstances under which the project is
undertaken which would require a major revision in the EIR, or new information that could not
OrdsM -2o
' have been known at the time the EIR was prepared becomes available. None of these situations
has occurred; therefore, no further environmental analysis is required.
Section 3. Findings
The City Council in approving the proposed Development Agreement, makes the following
findings, to wit:
1. The development to be carried out pursuant to the Development Agreement
is consistent with the General Plan.
2. The Development Agreement and the development to be carried out
hereunder complies with all other applicable requirements of State law, City ordinances and
Specific Plan No. 199.
Section 4. The City Council hereby approves that certain agreement entitled
"Amendment and Restatement of Development Agreement between City of Temecula and Temeku
Hills Development Partners, L. P. and UDC Homes Inc." and authorizes the Mayor to execute
the Agreement in substantially the form of Exhibit A, attached hereto.
Section 5. The City Clerk is directed and authorized to record the Agreement.
Section 6. This Ordinance shall be in full force and effect thirty (30) days after its
passage. The City Clerk shall certify to the adoption of this Ordinance. The City Clerk shall
publish a summary of this Ordinance and a certified copy of the full text of this Ordinance shall
be posted in the office of the City Clerk at least five days prior to the adoption of this Ordinance.
Within 15 days from adoption of this Ordinance, the City Clerk shall publish a summary of this
Ordinance, together with the names of the Councilmembers voting for and against the Ordinance,
and post the same in the office of the City Clerk.
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�II
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PASSED, APPROVED, AND ADOPTED, by the City Council of the City of Temecula
at a regular meeting held on the 28th day of October, 1997.
Patricia H. Birdsall, Mayor
ATTEST:
June,SlGreek, CMC /AA
City Clerk
[SEAL]
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE) ss
CITY OF TEMECULA )
I, June S. Greek, City Clerk of the City of Temecula, California, do hereby certify that
the foregoing Ordinance No. 97 -20 was duly introduced and placed upon its first reading at a
regular meeting of the City Council on the 7th day of October, 1997, and that thereafter, said
Ordinance was duly adopted and passed at a regular meeting of the City Council of the City of
Temecula on the 28th day of October, 1997 by the following roll call vote:
AYES: 5 COUNCILMEMBERS:
NOES: 0 COUNCILMEMBERS:
ABSENT: 0 COUNCILMEMBERS:
Ords \97 -20
9
Ford, Lindemans, Roberts, Stone, Birdsall
None
None
June S. Greek,) CMC /AAE
City Clerk
EXHIBIT "A"
' RECORDED AT THE REQUEST OF
WHEN RECORDED RETURN TO
City Clerk
City of Temecula
P.O. Box 9033
Temecula, CA 92589 -9033
(Space Above Line For Recorder's Use)
AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT
SPECIFIC PLAN NO. 199, VILLAGE A
' PLANNING AREAS 33 to 38, 40 to 44 and 46
PLANNING APPLICATION NO. PA 97 -0204
"MARGARITA VILLAGE"
TEMEKU HILLS DEVELOPMENT PARTNERS, L.P.
AND
UDC HOMES, INC.
' AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT
BETWEEN CITY OF TEMECULA
and
TEMEKU HILLS DEVELOPMENT PARTNERS, L.P.
and
UDC HOMES, INC.
This Amendment and Restatement of Development Agreement ( "Agreement ") is
entered into by and among the City of Temecula, a California Municipal Corporation ( "City ")
and Temeku Hills Development Partners, L.P., a California limited partnership ( "Temeku
Hills "), and UDC Homes, Inc. a California corporation ( "UDC'). Temeku Hills and UDC are
sometimes referred to herein collectively as "Owner."
RECITALS
A. Pursuant to California Government Code Section 65864, seq. ( "Development
Agreement Statutes "), Margarita Village Development Company (Buie -Rancho California and
Nevada -Rancho California) and others and the County of Riverside, California ( "County")
entered into Development Agreement No. 5 recorded in the Official Records of Riverside
County, California on November 7, 1988, as Instrument No. 325525 ('Development
Agreement No. 5 ").
' B. Development Agreement No. 5 encompasses a project formerly located within
County approved Specific Plan No. 199 known as "Margarita Village," a mixed use
subdivision, (the "Original Project "), to be developed on property which came within the
municipal boundaries of the City when the City incorporated on December 1, 1989. This
Agreement encompasses only a portion of the Original Project, a 472 acre residential
development located in a portion of Specific Plan No. 199, Village A, known as Temeku
Hills Golf and Country Club (the "Project "). The balance of the Original Project covered by
Development Agreement No. 5 not included within this 472 acre portion of Specific Plan No.
199, Village A, is not amended or impacted by this Agreement.
C. Pursuant to the provisions of the Development Agreement Statutes, the City
became the successor -in- interest to the County under Development Agreement No. 5 upon
incorporation of the City. Pursuant to Temeku Hills obtaining title to the Project as recorded
in the Official Records of Riverside County, California on May 3, 1996 as Instrument
No. 162332, and UDC obtaining title to a portion of the Project from Temeku Hills as
recorded in the Official Records of Riverside County, California on April 18, 1997, as
Instrument No. 132180, and pursuant to the provisions of Development Agreement No. 5,
Temeku Hills and UDC became successors -in- interest to the "Owner" described in
Development Agreement No. 5.
D. Pursuant to Section 65868 of the Development Agreement Statutes, the City
' and Owner propose to restate and amend Development Agreement No. 5 to substitute this
Agreement for Development Agreement No. 5, but only to the extent Development
Agreement No. 5 pertains to the Project.
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' E. Pursuant and subject to the Development Agreement Statutes, the City's police
powers and City Resolution No. 91 -52, City is authorized to enter into binding agreements
with persons having legal or equitable interest in real property located within the City's
municipal boundaries or sphere of influence thereby establishing the conditions under which
such property may be developed in the City.
F. By entering into this Agreement, City shall bind future Members of the City
Council of City by the obligations specified herein and further limit the future exercise of
certain governmental and proprietary powers of Members of the City Council. Likewise,
Owner shall bind its successors in interest to the obligations specified in this Agreement.
G. The terms and conditions of this Agreement have undergone extensive review
by the staff of the City, the Planning Commission of the City, and the City Council of the
City and have been found to be fair, just, and reasonable.
H. The City finds and determines that it will be in the best interest of its citizens
and the public health, safety and welfare will be served by entering into this Agreement.
I. All of the procedures and requirements of the California Environmental Quality
Act relevant to this Agreement have been met.
' 1. Riverside County Ordinance No. 659, as adopted by the City, establishes public
facilities impact fees for residential development within City ( "RSA Fees "). City requires
these revenues to ritigate the impact of development. City requires RSA Fees from
development of the Property in order to complete capital projects to mitigate the impact of the
Project.
K. Development Agreement No. 5 provided for public facilities and services
impact fees ( "County Development Agreement Fees ") higher than the RSA Fees. These
higher fees, particularly during the present economic situation, unduly discourage and delay
development and thereby prevent City from ever receiving the County Development
Agreement Fees or RSA Fees. Consequently, after extensive study, and public input and
hearings, the City has adopted a Development Impact Fee for detached units of $2,934 per
unit and for attached units of $2,114 per unit. Therefore, the City is willing to reduce the
County Development Agreement Fees for residential development in the Project to the level
contemplated by this Agreement.
L. City and Owner acknowledge that development of the Project will result in the
generation of municipal revenue, for public infrastructure facilities and the enhancement of the
quality of life, including recreation facilities for present and future residents of the City. The
benefits to the City and Owner contemplated by development of the Project include without
limitation:
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i
(1)
(2)
(3)
(4)
(5)
(6)
completion of vacant lots in Project;
payment of signal mitigation fees;
payment of library fees;
payment of park fees;
payment of Fire Protection Impact Fees; and
payment of Street System Impact Fees.
All of the fees described above are a part of, and included within, the Public Facilities Fee
contemplated herein.
M. The City and Owner acknowledge that due to the present economic situation,
none of these benefits to the City are possible unless the Project proceeds with development.
N. The City Council of the City has approved this Agreement by Ordinance
No. adopted on , and effective on ( "Effective Date ").
On the Effective Date, Development Agreement No. 5 shall be terminated and of no further
force and effect as to the Project only, having been replaced by this Agreement.
NOW, THEREFORE in consideration of the above Recitals and of the mutual
covenants hereinafter contained and for other good and valuable consideration, the receipt and.
sufficiency of which is hereby acknowledged and incorporated herein, the parties agree:
1. Definitions. In this Agreement, unless the context otherwise requires, the
following words and phrases shall have the meaning set forth below:
1.1 "City" is the City of Temecula.
1.2 "City Public Facilities Fee" is an amount established by Ordinance of
City as more particularly defined in Section 12.3 of this Agreement.
1.3 "City's Quimby Requirement" means Owner's obligation to dedicate
park land or pay in lieu park fees under Riverside County Ordinance No. 460.93, as the same
was incorporated by reference into the Temecula Municipal Code by Ordinance No. 90 -04, as
more particularly defined in Section 12.2 of this Agreement.
1.4 "County" is the County of Riverside.
1.5 "County Development Agreement Fee" means the County public
facilities and services mitigation fee set forth in Section 4.2 of Development Agreement
No. 5.
1.6 "Development Agreement Fee" means the development agreement fee
set forth in Section 12.6 of this Agreement.
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' 1.7 "Development Exaction" means any requirement of the City in
connection with or pursuant to any Land Use Regulation or Existing Development Approval
for the dedication of land, the construction of improvements or public facilities, or the
payment of fees in order to lessen, offset, mitigate or compensate for the impacts of
development on the environment or other public interests.
1.8 "Development Plan" means the Existing Development Approvals.
1.9 "Effective Date" means the date upon which the Ordinance approving
this Agreement becomes effective. Absent a referendum challenge, such date is thirty (30)
days following the date the City Council adopted such Ordinance.
1.10 "Existing Development Approval(s)" means those certain development
approvals relating to the Property in effect as of the Effective Date, including, without
limitation, the "Existing Development Approvals" listed in Exhibit A, attached hereto and
incorporated herein by this reference, which were approved by the County.
1.11 "Existing Land Use Regulations" means those Land Use Regulations
listed on Exhibit B,. attached hereto and incorporated herein by this reference, which are a
matter of public record on the Effective Date of this Agreement.
1.12 "Financing District" means a Community Facilities District formed
' pursuant to the Mello -Roos Community Facilities Act of 1982 (California Government Code
Section 53311 et seq., as amended); an assessment district formed pursuant to Landscaping
and Lighting Act of 1972 (California Street and Highways Code Section 22500 et seq. as
amended); a special assessment district formed pursuant to the Improvement Act of 1911
(California Streets and Highway Code Section 10102, as amended); or any other special
assessment district existing pursuant to Sate law formed for the purpose of financing the cost
of public improvements, facilities, services and/or public facilities fees within a specific
geographical area of the City.
1.13 "Hazardous Substance" shall include, without limitation, any flammable
explosives, radioactive materials, asbestos, polychlorinated biphenyls, chemicals know5i to
cause cancer or reproductive toxicity, substances described in Civil Code Section 2929.5(e)(2),
as it now exists or as subsequently amended, pollutants, contaminants, hazardous wastes, toxic
substances or related materials. Notwithstanding the foregoing, "Hazardous Substances" shall
not include substances customarily used in developing, operating or maintaining developments
similar to the project, provided all such substances are used, stored, and disposed of in
accordance with all applicable laws.
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1.14 "Land Use Regulations" means all ordinances, resolutions, codes, rules,
' regulations, and written official policies of City, governing the development and use of land
including without limitation: the permitted use of land; the density or intensity of use;
subdivision requirements; the maximum height and size of proposed buildings; the provisions
for reservation or dedication of land for public purposes; and the design, improvement, and
construction standards and specifications applicable to the development of the Property.
"Land Use Regulations" does not include any County or City ordinance, resolution, code, rule,
regulation, or official policy, governing:
(a) The conduct of businesses, professions, and occupations;
(b) Taxes, assessments and rates and charges of the City's Community
Services District;
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits and the conveyance of rights and
interest which provide for the use of or the entry upon public property;
(e) The exercise of the power of eminent domain.
1.15 "Owner" means Temeku Hills Development Partners, L.P., a limited
' partnership, UDC Homes, Inc., a California corporation, and any successors in interest to
Temeku Hills and UDC
1.16 "Project" is the development of the Property in accordance with the
Development Plan.
1.17 "Property" is the real property described in Exhibit C, attached hereto
and incorporated herein by this reference.
i
1.18 "Remaining Units" means all remaining residential dwelling units within
the Project after the 608th such residential unit, all as more particularly described in Section
12.5(b) of this Agreement.
1.19 "RSA Fee" means the fee established by County Ordinance No. 659,
adopted by City by Ordinance No. 90.04.
1.20 "Subsequent Development Approvals" means all development approvals
required subsequent to the Effective Date in connection with development of the Property.
1.21 "Subsequent Land Use Regulation" means any Land Use Regulation
applicable to the Property adopted and effective after the Effective Date of this Agreement.
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2. Interest of Owner. Owner represents that it has the fee title interest in the
Property and that all other persons holding legal or equitable interest in the Property are to be
bound by this Agreement.
3. Exhibits. The following documents referred to in this Agreement are attached
hereto, incorporated herein, and made a part hereof by this reference:
Exhibit Designation Description
A. Existing Development Approvals
B. Existing Land Use Regulations
C. Legal Description of the Property
D. Assignment and Assumption of
Development Agreement
E. Notice From Mortgagee
F. Fee Matrix
4. Term.
4.1 The term of this Agreement shall commence on the Effective Date and
shall extend for a period of ten (10) years thereafter, unless this Agreement is terminated,
modified or extended by circumstances set forth in this Agreement or by mutual consent of
the parties hereto.
4.2 This Agreement shall terminate and be of no force and effect upon the
occurrence of the entry of a final judgment or issuance of the final order after exhaustion of
any appeals, directed against the City as a result of any lawsuit filed against directing the City
to set aside, withdraw, or abrogate the approval by the City Council of the City of this
Agreement.
5. Assignment.
5.1 Right to Assign. The Owner shall have the right to sell, transfer, or
assign the Property in whole or in part (provided that no such partial transfer shall violate the
Subdivision Map Act, Government Code Section 66410, et sea., or Riverside County
Ordinance No. 460, as the same was incorporated by reference into the Temecula Municipal
Code by Ordinance No. 90 -04) to any person, partnership, joint venture, firm, or corporation
at any time during the term of this Agreement; provided, however, that any such sale,
transfer, or assignment shall include the assignment and assumption of the rights, duties, and
obligations arising under or from this Agreement and be made in strict compliance with the
following conditions precedent:
(a) No sale, transfer, or assignment of any right or interest under this
' Agreement shall be made unless made together with the sale, transfer, or assignment of all or
a part of the Property. Owner agrees to provide specific notice of this Agreement, including
the record or document number, where a true and correct copy of this Agreement may be
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' obtained from the Riverside County Recorder, in any grant deed or other document purporting
to transfer the title or an interest in the Property during the term of this Agreement or any
extension thereof.
(b) Concurrent with any such sale, transfer, or assignment, or within fifteen
(15) business days thereafter, the Owner shall notify City, in writing, of such sale, transfer, or
assignment and shall provide City with an executed agreement, in the form attached hereto as
Exhibit D, by the purchaser, transferee, or assignee and providing therein that the purchaser,
transferee, or assignee unconditionally assumes all the duties and obligations of the Owner
under this Agreement.
Any sale, transfer, or assignment not made in strict compliance with the
foregoing conditions shall constituted a default by the Owner under this Agreement.
Notwithstanding the failure of any purchaser, transferee, or assignee to execute the agreement
required by Paragraph (b) of this Subsection, the burdens of this Agreement shall be binding
upon such purchaser, transferee, or assignee, but the benefits or this Agreement shall not inure
to such purchaser, transferee, or assignee until and unless such agreement is executed.
5.2 Release of Transferring Owner. Notwithstanding any sale, transfer, or
assignment, a transferring Owner shall continue to be obligated under this Agreement unless
such transferring Owner is given a release in writing by the City, which release shall be
provided by the City upon the full satisfaction by such transferring Owner of ALL of the
following conditions:
(a) The Transferring Owner no longer has a legal interest in all or any part
of the Property except as a beneficiary under a deed of trust.
(b) The Owner is not then in default under this Agreement.
(c) The Owner or purchaser has provided City with the notice and executed
agreement required under Paragraph (b) of Subsection 5.1 above.
(d) The purchaser, transferee, or assignee has provided City with security
equivalent to any security previously provided by the Transferring Owner to secure
performance of its obligations hereunder.
(e) The Transferring Owner has reimbursed the City for any and all City
costs associated with Owner's transfer of all or a portion of the Property.
5.3 Termination of Agreement with Respect to Individual Lots upon Sale to
Public and Completion of Construction. Notwithstanding Subsection 5.1, or any other
provisions of this Agreement, this Agreement shall terminate with respect to any lot and such
lot shall be released and no longer be subject to this Agreement without the execution or
recordation of any further document upon satisfaction of both of the following conditions:
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(a) The lot has been finally subdivided and individually (and not in "bulk ")
' sold or leased (for a period longer than one year) to a member of the public or other ultimate
user; and
(b) A Certificate of Occupancy has been issued for a building on a lot, and
the fees set forth in this Agreement have been paid.
5.4 Subsequent Assignment. Any subsequent sale, transfer, or assignment
after an initial sale, transfer, or assignment shall be made only in accordance with and subject
to the terms and conditions of this Section.
6. Mortgagee Protection. The parties hereto agree that this Agreement shall not
prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the
Property or any portion thereof or any improvement thereon by any mortgage, deed of trust,
or other security device securing financing with respect to the Property. City acknowledges
that the lenders providing such financing may require certain Agreement interpretations and
modifications and agrees upon request, from time to time, to meet with the Owner and
representatives of such lenders to negotiate in good faith any such requested interpretation or
modification. City will not unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or modification is consistent with
the intent and purposes of this Agreement and provided further that the City will be entitled
to exercise its discretion in accordance with applicable law. Owner shall reimburse City for
' any and all of City's reasonable costs associated with the negotiations, interpretations, and
modifications within thirty (30) days of receipt of an invoice from City.
Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement
shall defeat, render invalid, diminish, or impair the lien of any mortgage on the Property
made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee has submitted a request in writing, in the form
as attached hereto as Exhibit E, attached hereto and incorporated herein by this reference, to
the City in the manner specified herein for giving notices, shall be entitled to receive written
notification from City of any default by the Owner in the performance of the Owner's
obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee, in the form set forth
on Exhibit E, attached hereto and incorporated herein by this reference, requesting a copy of
any notice of default given to the Owner under the terms of this Agreement, City shall
endeavor to provide a copy of that notice of default to the Mortgagee within ten 10 days of
sending the notice of default to the Owner. The Mortgagee shall have the right, but not the
' obligation, to cure the default during the remaining cure period allowed such parry under this
Agreement. City shall have no liability for damages or otherwise to Owner, Owner's
successor, or to any Mortgagee or successor thereof for the failure to provide such notice.
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(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall
have an obligation or duty under this Agreement to perform any of the Owner's obligations or
other affirmative covenants of the Owner hereunder, or to guarantee such performance,
provided however, that to the extent that any covenant to be performed by Owner is a
condition precedent to the performance of a covenant by City, the performance thereof shall
continue to be a condition precedent to City's performance hereunder, and further provided
that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the
provisions of Section 5.1 of this Agreement. The term of the Agreement shall not be
extended based on the fact that a Mortgagee holds title to the Property for all or any part of
the term of this Agreement.
(e) Any Mortgagee who comes into possession of the Property, or any
portion thereof, pursuant to subsection (d) above and who elects not to assume the obligations
of the Owner set forth herein shall not be entitled to any rights to develop which have or may
have vested as a result of this Agreement.
7. Binding Effect of Agreement. The burdens of this Agreement bind and the
benefits of the Agreement inure to the successors -in- interest to the parties to it in accordance
with the provisions of and subject to the limitations of this Agreement.
' 8. Proiect as a Private Undertaking/Relationship of Parties. It is specifically
understood and agreed by and between the parties hereto that the development of the Project
is a private development, that neither party is an independent contracting entity with respect to
the terms, covenants, and conditions contained in this Agreement. No partnership, joint
venture, or other association of any kind is formed by this Agreement. The only relationship
between City and Owner is that of a government entity regulating the development of private
property and the owner of such property.
9. Changes in Proiect. No change, modification, revision, or alteration of Existing
Development Approvals may be made without the prior approval of the City. City may
expand the permitted uses for the Property without amending this Agreement so long as
Owner or Owner's successor retains his/her /their existing entitlements.
10. Timing of Development. The parties acknowledge that Owner cannot at this
time predict when, or the rate at which, the Property will be developed. Such decisions
depend upon numerous factors which are not within the control of Owner, such as market
orientation and demand, interest rates, absorption, completion and other similar factors. Since
the California Supreme Court held in Pardee Construction Co v City of Camarillo, 37 Cal.3d
465 (1984), that the failure of the parties therein to provide for the timing of development
resulted in a later - adopted initiative restricting the timing of development to prevail over such
' parties, it is the parties' intent to cure the deficiency by acknowledging and providing that the
Owner shall have the right to develop the property in such order, at such rate, and at such
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8576.0011090397 _10_
times as the Owner deems appropriate within the exercise of its subjective business judgment,
subject only to any timing or phasing requirements set forth in the Development Plan.
11. Indemnity and Cost of Litigation.
11.1 Hold Harmless. Owner agrees to and shall hold City, its officers,
employees, agents, and representatives harmless from liability for damage or claims for
damage for personal injury including death and claims for property damage which may arise
from the direct or indirect operations of the Owner or those of its contractor, subcontractor,
employee, agents, or other person acting on its behalf which relate to the Project, regardless
of whether or not City prepared, supplied, or approved plans or specifications for the Project.
This indemnification requirement shall survive the termination or expiration of this
Agreement.
11.2 Third Party Litigation Concerning Agreement. Owner shall indemnify,
protect, defend, at its expense - including attorney's fees, and hold harmless City, its officers,
employees, or agents against any loss, cost expense, claim, or. counter - claim, complaint, or
proceeding to attack, set aside, void, or annul the approval of this Agreement or the approval
of any permit granted pursuant to this Agreement brought by any third patty. City shall
promptly notify Owner of any such claim, action, or proceeding and City shall cooperate in
the defense. If City falls to promptly notify Owner of any such claim, action, or proceeding,
or if City fails to cooperate in the defense, Owner shall not thereafter be responsible to
defend, indemnify, or hold harmless City. City may in its discretion participate in the defense
of any such claim,, action, or proceeding.
11.3 Environmental Assurances. Owner shall indemnify, protect, defend with
counsel approved by City, and hold harmless City, its officers, employees, agents, assigns, and
any successor or successors to City's interest from and against all claims, actual damages
(including but not limited to special and consequential damages), natural resources damages,
punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands,
debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interests,
fines, charges, penalties and expenses (including but not limited to attorneys' and expert
witness fees and costs incurred in connection with defending against any of the foregoing or
in enforcing this indemnity) of any kind whatsoever paid, incurred, or suffered by, or asserted
against, City or its officers, employees, or agents arising from or attributable to any repair, J
cleanup, or detoxification, or preparation and implementation of any removal, remedial,
response, closure, or other plan (regardless of whether undertaken due to governmental action)
concerning a Hazardous Substance or hazardous wastes arany place within the property which
is the subject of this Agreement. The foregoing indemnity extends beyond the term of this
Agreement and is intended to operate as an agreement pursuant to Section 107(e) of the
Comprehensive Environmental Response, Compensation, and Liability Act ( "CERCLA "),
42 U.S.C. Section 9667(e), and California Health and Safety Code Section 25364, and their
successor statutes, to insure, protect, hold harmless, and indemnify City from liability.
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' 11.4 Release. Owner, for itself, its successors and assignees, hereby releases
the City, its officers, agents, and employees from any and all claims, demands, actions, or
suits of any kind or nature arising out of any liability, known or unknown, present or future,
including, but not limited to, any claim or liability, based or asserted, pursuant to Article I,
Section 19 of the California Constitution, the Fifth Amendment of the United States
Constitution, or any other law or ordinance which seeks to impose any other liability or
damage, whatsoever, upon the City because it entered into this Agreement or because of the
terms of this Agreement.
11.5 Reservation of Rights. With respect to Sections 11.1 through 11.4
herein, City reserves the right to either (1) approve the attomey(s) which Owner selects, hires,
or otherwise engages to defend City hereunder, which approval shall not be unreasonably
withheld, or (2) conduct its own defense, provided, however, the Owner shall reimburse City
forthwith for any and all reasonable expenses incurred for such defense, including attorney's
fees, upon billing and accounting therefor.
11.6 Survival. The provisions of this Section 11.1 to 11.6, inclusive, shall
survive the termination of this Agreement.
12. Public Benefits, Public Improvements and Facilities.
12.1 Intent. The parties acknowledge and agree that this Agreement confers
' private benefits on the Owner which should be balanced by commensurate public benefits.
Accordingly, the parties intend to provide consideration to the public to balance the private
benefits conferred on the Owner by providing more fully for the satisfaction of the public
needs resulting from development of the Project.
12.2 Ouimbv Requirement. Temeku Hills shall satisfy its obligations to
dedicate park land or pay in lieu park fees under Riverside County Ordinance No. 460.93, as
the same was incorporated by reference into the Temecula Municipal Code by Ordinance
No. 90 -04 ( "City's Quimby Requirement ") as follows:
(a) Temeku Hills shall dedicate to the City land for a fully improved park to
be used for recreational purposes in accordance with the City's Quimby Requirement, in a
size to be determined as set forth below, prior to the issuance of the 608th building permit for
residential dwelling units in the Project. The size of the park described above in this Section
12.2(a) shall be calculated in the following manner:
(i) Multiply the number of dwelling units in the Project by 2.59 (the
average number of persons per dwelling unit), and then divide that sum by 1,000.
(ii) Multiply the quotient obtained by the calculation in subparagraph (i)
above by five (5) (the number of acres required per 1,000 people).
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8536,001/090797 -12-
' (iii) The result of the multiplication obtained in sub - paragraph (ii)
above shall constitute the size of the park to be dedicated by Temeku Hills to the City, subject
to reduction for the credits set forth in Section 12.2(b) below.
(b) The park described in Section 12.2(a) above shall be reduced in size by
the following credits:
(i) An acreage credit determined by multiplying the size of the park
determined in accordance with Section 12.2(a) by twenty-five percent (25 %) for the Temeku
Hills Golf Course located within the Project.
(ii) A 2.5 acre credit for Veterans Park.
(ii) An acreage credit of 1.10 acres determined by multiplying the 2.2
acre common recreational facilities located within the Project by fifty percent (50 %).
(c) By way of example only, if the number of dwelling units in the Project
is 1,449, the size of the park to be dedicated by Temeku Hills to the City pursuant to this
Section 12.2 shall be as follow:
1,449 dwelling units x 2.59 persons, divided by 1,000, multiplied by 5 acres = 18.76
acre park;
18.76 acre park, less the following credits:
(4.69) acre credit (25% golf course credit x 18.76 acre park)
(2.50) acre credit for Veterans Park
110 acre credit for the common recreational facilities (2.2 acres x 50 %).
10.47 acre park required
(d) Upon dedication of the land for a park as provided in Section 12.2 (a)
above, Temeku Hills shall design and complete construction of park improvements thereon
similar to other public parks of the same size and classification prior to the issuance of the
608th building permit for residential dwelling units in the Project.
12.3 Public Facilities Fee. In lieu of the County Development Agreement
lities Fee for residential units as follows:
Fee, Owner shall pay the City Public Faci
(a) For each detached dwelling unit, the amount of Two Thousand Nine
Hundred and Thirty-Four Dollars ($2,934.00), inclusive of Street System Impact Fees
($729.00), Traffic Signal and Traffic Control System Fees ($109.00), Parks and Recreation
Impact Fees ($1,611.00), Corporate Facilities Impact Fees ($222.00), Fire Protection Impact
' Fees ($55.00) and Library Impact Fees ($208.00).
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e556.6ou09o597 -13-
' (b) For each attached dwelling unit, the amount of Two Thousand One
Hundred and Fourteen Dollars ($2,114.00), inclusive of Street System Impact Fees ($511.00),
Traffic Signal and Traffic Control System Fees ($77.00), Parks and Recreation Impact Fees
($1,209.00), Corporate Facilities Impact Fees ($118.00), Fire Protection Impact Fees ($42.00)
and Library Impact Fees ($156.00).
The City Public Facilities Fee shall be paid as provided in Section 12.8 below.
Owner expressly acknowledges the existence and holding in the case of Kaufman and Broad
Central Valley. Inc. v. City. of Modesto. (1994) 25 Cal.AppAth 1577, as it applies to later
adopted fees. Owner hereby waives for himself, and for any successor thereto, the right to
challenge the validity or amount of any such other public facilities fees which are enacted and
applied to residential development projects in the City. Such waiver applies to the Project
after the City Public Facilities Fee has been enacted by the City and applied to residential
development projects in the City. Owner acknowledges and agrees that the City would not
have entered into this Agreement if its application or operation would limit in any way the
City's ability to develop and apply a Comprehensive Public Facilities Fee Program to this
Project. Owner further acknowledges and agrees that the waiver provided herein applies not
only to this Agreement, but to any rights Owner may have under any vesting map filed and
deemed complete under the vesting maps statutes, Government Code Section 66498.1 et sea.
Finally, Owner agrees that the institution of any legal action by Owner, or any successor
thereof, to challenge the validity, amount, or application of the City Public Facilities Fee,
including paying such fees "under protest" pursuant to Government Code Section 66020 et
seo., shall constitute a material breach and default under this Agreement entitling the City to
summary termination hereof.
12.4 Public Facilities Fee Adiustment. The fees required by Section
12.3 'above shall be adjusted annually during the term of this Agreement on the anniversary of
the Effective Date in accordance with the changes in the Consumer Price Index for All Urban
Consumers in the Los Angeles- Anaheim - Riverside Area (hereinafter CPI) published monthly
by the U.S. Bureau of Labor Statistics. The annual adjustment shall be calculated in the
following manner:
(a) Divide the CPI for month and year of the Effective Date into the CPI
for the month immediately preceding the anniversary in which the fees are to be adjusted.
(b) Multiply the quotient obtained by the calculation in sub - paragraph (a)
above times the fees to be adjusted.
(c) The result of the multiplication obtained in sub - paragraph (b) above
shall constitute the fees payable during the succeeding year.
If the CPI specified herein is discontinued or revised during the term of this
Agreement, such other government index or computation with which it is replaced shall be
' used in order to obtain substantially the same result as would have been obtained if the CPI
had not been discontinued.
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' In no event shall the fees.after adjustment be less than the fees set forth in
Section 12.3 above.
12.5 Public Benefits and Credits. In consideration of Temeku Hills
dedicating, designing and improving a public park, providing the existing Veterans Park and
setting aside substantial private usable open space within the Project, all as more specifically
set forth in Section 12.2 above, Temeku Hills shall be entitled to an offset against the Park
and Recreation Impact Fees paid by Temeku Hills as a component of the City Public
Facilities Fee for the actual costs expended by Temeku Hills for,the design and construction
of the park described in Section 12.2 above (as evidenced by actual third party invoices),
including a reasonable overhead burden of 10% of such actual costs (the "Park Fee Offset ").
As a result of the Park Fee Offset, the Park and Recreation Impact Fees paid as a component
of the City Public Facilities Fee shall be affected in the following manner:
(a) Eliminated for the first 608 building permits issued to Owner for
residential dwelling units within the Project; and
(b) Eliminated for the number of building permits issued to Temeku Hills
for residential dwelling units constructed in excess of 608 units until such time as the Park
Fee Offset has been exhausted.
(c) By way of example only, assuming the cost to improve the park
described in Section 12.2 above is One Million Five Hundred Thousand Dollars ($1,500,000),
and the Park and Recreation Impact Fee, including the Development Agreement Fee, is
$1,772.10, the number of building permits in excess of 608 units to be issued to Temeku Hills
for which the Park and Recreation Impact Fees component of the City Public Facilities Fee
would be eliminated as a result of the Park Fee Offset is as follows:
$1,772.10 park fee x 608 dwelling units = $1,077,436.80
$1,500,000 park improvements - $1,077,436.80 = $422,563.20 Park
Fee Offset
$422,563.20 Park Fee Offset + $1,772.10 park fee = 238.45 building
permits in excess of 608 issued for which no Park and Recreation
Impact Fees would be paid (for a total of 846.45 building permits for
which no Park and Recreation Impact Fees would be paid including the
first 608 building permits)
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a536.001/090397 —15—
' 12.6 Develonment Agreement Fee. In consideration of the City granting to
Owner the rights and benefits contained within this Agreement, Owner shall pay to the City a
development agreement fee in an amount equal to ten percent (10 %) of each component of
the City Public Facilities Fee described in Section 12.3(a) or 12.3(b), as the same may be
increased from time to time pursuant to Section 12.4 above (the "Development Agreement
Fee "). The Development Agreement Fee shall be added to the City Public Facilities Fee and
paid as provided in Section 12.8 below.
12.7 Fee Matrix. Attached hereto as Exhibit F is a Fee Matrix showing the
City Publie Facilities Fee, and the individual components thereof, the credits applicable to the
City Public Facilities Fee, and components thereof, and the Development Agreement Fee.
12.8 Timing. The.City Public Facilities Fee shall be paid at the time of
issuance of building permits for each residential unit constructed on the Property. Collection
of any and all interim Public Facilities Fees, or component thereof (or when combined with
the Park and Recreation Impact Fees) paid by the Owner for all home units constructed prior
to adoption of this Agreement, in surplus to those fees contained herein, shall be credited to
Owner.
12.9 Other Analicable Fees.
(a) Owner also shall pay all other customary and typical development
' exactions, for a project of this size and nature, in existence as of the Effective Date and
throughout the term of this Agreement, not included in the City Public Facilities Fee, pursuant
to provisions of City ordinances and resolutions in existence when paid.
(b) The parties hereto agree that to the extent the applicable Stephen's
Kangaroo Rat and drainage fees have not been paid prior to the execution of this Agreement
by both parties, those fees remain applicable to the Project.
12.10 Public Works. If Owner is required by this Agreement or any other
obligation, to construct any public works facilities which will be dedicated to City or any
other public agency upon completion, and if required by applicable laws to do so, Owner
shall perform such work in the same manner and subject to the same requirements as would
be applicable to City or such other public agency should it have undertaken such construction.
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9536.001/090397 _ -16-
12.11 Preference. In the event the City approves, enacts or applies a City
' Public Facilities Fee or any component thereof, in an amount which is less than the amount(s)
provided in Section 12.3 above, or if the City approves, enacts or applies a City Public
Facilities Fee or any component thereof, for any other detached residential dwelling units in
an amount which is less than applicable to the Project, or if the City approves, enacts or
applies a Development Agreement Fee which is less than provided in this Agreement, or if
the City approves, enacts or applies any other fee which serves the same or similar purposes
of the Development Agreement Fee, or the City Public Facilities Fee in an amount which is
less than provided in this Agreement, the City shall adjust the amounts of the City Public
Facilities Fee, and/or Development Agreement Fee applicable to the Project to equal the lesser
fee amount(s). If any attached dwelling units are constructed in the Project, the City agrees to
apply the adopted components and fees for attached residential units with the same
proportional adjustments and credits as set forth in Section 12 of this Agreement.
13. Reservation of Authority.
13.1 Limitations. Reservations. and Exceptions. Notwithstanding any other
provision of the Agreement, the following Subsequent Land Use Regulations shall apply to
the development of the Property:
(a) Processing fees and charges imposed by City to cover the estimated
actual costs to City of processing applications for Subsequent Development Approvals.
' (b) , Regulations governing construction standards and specifications
including without limitation, the City's Building Code, Plumbing Code, Mechanical Cade,
Electrical Code, and Fire Code.
(c) Regulations which are NOT in conflict with the Development Plan.
Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of
development of the Property shall be deemed to conflict with the Development Plan and shall
therefore not be applicable to the development of the Property.
(d) Regulations which are in conflict with the Development Plan, provided
Owner has given written consent to the application of such regulations to development of the
Property.
13.2 Subsequent Development Approvals. This Agreement shall not prevent
City, in acting on Subsequent Development Approvals, from applying the Subsequent Land
Use Regulations which do not conflict with the Development Plan, nor shall this Agreement
prevent City from denying or conditionally approving any Subsequent Development Approval
on the basis of the Existing or Subsequent Land Use Regulations not in conflict with the
Development Plan.
wmilliMcomeircd.dy1
8536.001109039 -17-
' 13.3 Modification or Suspension by State or Federal Law. In the event that
State or Federal laws or regulations enacted after the Effective Date of this Agreement
prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such State or Federal laws or regulations. In that event, however, this Agreement shall
remain in full force and effect to the extent it is not inconsistent with such laws or regulations
and to the extent such laws or regulations do not render such remaining provisions impractical
to enforce.
13.4 Regulation by Other Public Agencies. It is acknowledged by the parties
that other public agencies not within the control of City possess authority to regulate aspects
of the development of the Property separately from or jointly with City and this Agreement
does not limit the authority of such other public agencies.
13.5 Tentative Tract Man Extension. Pursuant to the provisions of
Section 66452.6 of the Government Code, any current or future tentative subdivision map(s)
or tentative parcel map(s) (vested or regular) approved as a part of implementing the
Development Plan, including without limitation Revised Tentative Tract Map 23371, shall be
extended to expire at the end of the term of this Agreement.
13.6 Vesting Tentative Maps. If any tentative or final subdivision map, or
' tentative or final parcel map, heretofore or hereafter approved in connection with the
development of the property, is a vesting map under the Subdivision Map Act (Government
Code Section 6641,0, et se g. and Riverside County Ordinance No. 460, as the same were
incorporated by reference into the Temecula Municipal Code by Ordinance No. 90 -04, and if
this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it
grants a vested right to develop to the Owner, then and to that extent the rights, obligations,
and protections afforded the Owner and City respectively, under the laws and ordinances
applicable to vesting maps shall supersede provisions of this Agreement. Except as set forth
immediately above, development of the Property shall occur only as provided in this
Agreement, and the provisions in this Agreement shall be controlling over conflicting
provisions of law or ordinances concerning vesting maps.
13.7 Tentative Tract Maps - Perimeter Walls. The conditions of approval for
tentative subdivision map(s) or tentative parcel map(s) (vested or regular) approved as a part
of implementing the Development Plan shall be amended to provide that the construction of
perimeter walls and installation of landscaping and irrigation systems, that would otherwise be
required to be completed prior to the construction of any residential dwelling units, shall be
constructed in phases as the adjacent tracts are developed within the Project.
13.8 Maintenance of Proiect Landscape Areas. Owner shall form a
homeowners' association which shall maintain all landscape areas within the Project including,
without limitation, all block walls and entry monuments located within the Project.
' Notwithstanding the foregoing, the City acting through its Community Services District and
upon compliance with all applicable laws including, without limitation, any necessary public
voting procedures, shall consider maintaining all exterior landscape areas (excluding block
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e536.00[/M397 -18-
' walls and entry monuments) within the Project adjacent to main collector streets having
widths of sixty -six feet (66') or larger. Unless these areas are accepted by the City's
Community Services District for maintenance, they will be maintained by the homeowner's
association.
13.9 Margarita Road Reimbursement. Owner's obligation to reimburse the
City for the cost of constructing certain roadway improvements to the east side of Margarita
Road from Rancho California Road to La Serena shall be $185.00 per residential unit
applicable to the first 800 residential units constructed in the Project, all as more specifically
set forth in that certain Reimbursement Agreement recorded in the Official Records of
Riverside County on July 14, 1994, as Instrument No. 281356.
13.10 Modified Street Sections. The Existing Development Approvals
incorporate the conversion of previously designated "private streets" within the Project to
public streets. To accommodate the conversion of private streets to public streets within the
Project, and as more fully set forth in the Existing Development Approvals, the City has
approved one type of-modified street sections for Tracts 23371 -1 through 23371 -7, and
another type of modified street sections for the remainder of the Project.
13.11 Park Improvement Agreement and Security. For park improvements,
recreation facilities, slopes and landscaping proposed for dedication to the City's Community
' Services District pursuant to this Agreement, Owner shall enter into an Improvement
Agreement and post securities for said improvements concurrently with the recordation of the
tracts where the improvements are located.
14. Development of the Property. Vesting. Termination of Development Agreement
No. 5
14.1 Rights to Develop. Subject to the terms of this Agreement, including
payment of the City Public Facilities Fee and the Development Agreement Fee, the Owner
shall have a vested right to develop the Property in accordance with, and to the extent of the
Development Plan. The Project shall remain subject to all Subsequent Development
Approvals required to complete the Project as contemplated by the Development Plan. Except
as otherwise provided in this Agreement, the permitted uses of the Property, the density and
intensity of use, the maximum height and size of proposed buildings, and provisions for
reservation and dedication of land for public purposes shall be those set forth in the
Development Plan. In exchange for the vested right to develop pursuant to this Agreement,
Owner expressly waives for himself and for any successor thereto, the right to challenge or
contest the validity of any condition of approval attached to any entitlement which is a part of
the Development Plan.
14.2 Effect of Agreement on Land Use Regulations. Except as otherwise
provided under the terms of this Agreement, including the payment of the City Public
' Facilities Fee, the rules, regulations, and official policies governing permitted uses of the
Property, the density and intensity of use of the Property, the maximum height size of
proposed buildings, and the design, improvement and construction standards and specifications
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9536.0011090397 -19-
' applicable to development of the Property shall.be Existing Land Use Regulations. City shall
exercise its lawful reasonable discretion in connection with Subsequent Development
Approvals in accordance with the Development Plan, and as provided by this Agreement
including, but not limited to, payment of the City Public Facilities Fee and the Development
Agreement Fee. City shall accept for processing, review, and action all applications for
Subsequent Development Approvals, and such applications shall be processed in the normal
manner for processing such matters. City may, at the request of Owner, contract for planning
and engineering consultant services to expedite the review and processing of Subsequent
Development Approvals, the cost of which shall be bome by Owner.
14.3 Changes and Agreements. The parties acknowledge that refinement and
further development of the Project will require Subsequent Development Approvals and may
demonstrate that changes are appropriate and mutually desirable in the Existing Development
approvals. In the event the Owner finds that a change in the Existing Development Approvals
is necessary or appropriate, the Owner shall apply for a Subsequent Development Approval to
effectuate such change. If approved, any such change in the Existing Development Approvals
shall be incorporated herein as addendum to this Agreement and may be further changed from
time to time as provided in this Section. Owner, shall, within thirty (30) days of written
demand by City, reimburse City for any and all reasonable costs, associated with any
amendment or change to this Agreement that is initiated by Owner or Owner's successor --
without regard to the outcome of the request for amendment or change to this Agreement.
Unless otherwise required by law, as determined in City's reasonable discretion, a change to
the Existing Development Approvals shall be deemed "minor" and not require an amendment
to this Agreement provided such a change does not:
(a) Alter the permitted uses of the Property as a whole, except as provided
in Section 9 hereof, or,
(b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or,
(d) Delete a requirement for the reservation or dedication of land for public
purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or a supplemental
Environmental Impact Report pursuant to Section 21166 of the Public Resources Code.
14.4 Termination of Development Agreement No. 5. Both the City and the
Owner agree that on the Effective Date of this Agreement, Development Agreement No. 5
shall be terminated and of no further force or effect as to this Project only, having been
replaced by this Agreement.
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8536.0011090397 -20-
15. Periodic Review of Compliance with Agreement.
' (a) Pursuant to City Resolution No. 91 -52, as it may be subsequently
amended, City shall review this Agreement at least once during every twelve (12) month
period from the Effective Date of this Agreement. The Owner or successor shall reimburse
City for the reasonable and necessary costs of this review, within thirty (30) days of written
demand from City.
(b) During each periodic review by City, the Owner is required to
demonstrate good faith compliance with the terms of this Agreement. The Owner agrees to
furnish such evidence of good faith compliance as City in the exercise of its discretion may
require.
16. Financing District. Upon the request of Owner, the parties shall cooperate in
exploring the use of special assessment districts and other similar Financing Districts for the
financing of the construction, improvement, or acquisition of public infrastructure, facilities,
lands, and improvements to serve the Project and its residents, whether located within or
outside the Property. It is acknowledged that nothing contained in this Agreement shall be
construed as requiring City or City Council to form such a district or to issue or sell bonds.
17. Agreement or Cancellation of Agreement. This Agreement may be amended or
canceled in whole or in part only by mutual consent of the parties and in the manner provided
' for in Government Code Section 65868. If an amendment is requested by the Owner or its
successor, the Owner /successor agrees to pay City any Development Agreement processing fee
then in existence as established by City Council Resolution, or if no such fee is established, to
reimburse City for the actual and reasonably necessary costs of reviewing and processing the
Agreement within thirty (30) days of written demand from City -- without regard to City's
action on such amendment.
18. Enforcement. Unless amended or canceled as herein provided, this Agreement
is enforceable by any party to it, notwithstanding a change in the applicable general or
specific plan, zoning, subdivision, or building regulations adopted by the City.
19. Events of Default. Owner is in default under this Agreement upon the
happening of one or more of the following events or conditions: I i
(a) If a warranty, representation, or statement made or furnished by Owner
to City is false or proves to have been false in any material respect when it was made;
(b) More than forty-five (45) days have passed since City's making of a
written request to Owner for payment or reimbursement for a fee or service authorized or
agreed to pursuant to this Agreement.
' (c) A finding and determination by City that upon the basis of substantial
evidence the Owner has not complied in good faith with one or more at the terms or
conditions of this Agreement.
=millinkonbinW. dal l
&536.0011090397 -21-
20. Procedure Upon Default.
(a) Upon the occurrence of an event of default, City may terminate or
modify this Agreement in accordance with the procedure adopted by the City.
(b) City does not waive any claim of defect in performance by Owner
implied if on periodic review the City does not propose to modify or terminate this
Agreement.
(c) Non - performance shall not be excused because of a failure of a third
person.
(d) Non - performance shall be excused only when it is prevented or delayed
by acts of God or an emergency declared by Governor.
(e) All other remedies at law or equity which are not otherwise provided
for in this Agreement or in City's regulations governing development agreements are available
to the parties to pursue in the event there is a breach.
21. Remedies. In general, each of the parties hereto may pursue any remedy at law
or equity available for the breach of any provision of this Agreement, except that City, and its
officers, employees and agents, shall not be liable in damages to Owner or to any assignee,
transferee of Owner, or any other person, and Owner covenants not to sue or claim any
damages for breac(i of that Agreement by City. It is acknowledged by the parties that City
would not have entered into this Agreement if it were to be liable in damages under or with
respect to this Agreement or the application thereof Owner, for himself or any successor
thereto, expressly waives the right to seek damages against the City or any officer, employee
or agent thereof, for any default or breach of this Agreement.
22. Attorneys Fees and Costs. If legal action by either party is brought because of
breach of this Agreement or to enforce a provision of this Agreement, the prevailing party is
entitled to reasonable attorneys fees and court costs.
23. Notices. All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by certified mail postage prepaid and presumed
delivered upon actual receipt by personal delivery or within three (3) days following deposit
thereof in United States Mail. Notice required to be given to City shall be addressed as
follows:
To City: City of Temecula
P.O. Box 9033
Temecula, CA 92589 -9033
Attention: City Clerk
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9536.001/090797 -22-
With a copy to: Peter M. Thorson, City Attorney
Richards, Watson & Gershon
A Professional Corporation
333 So. Hope Street, 38th Floor
Los Angeles, CA 90071 -1469
Notices required to be given to Owner shall be addressed as follows:
To Owner:
Temeku Hills Temeku Hills Development Partners, L.P.
2727 Hoover Avenue
National City, CA 91950
Attention: James H. Hunter, Senior Vice President
With a copy to: Lorenz Alhadeff Cannon & Rose, LLP
27555 Ynez Road, Suite 203
Temecula, CA 92591
Attention: Samuel C. Alhadeff, Esq.
UDC: UDC Homes, Inc.
438 Camino Del Rio South, Suite 112B
San Diego, CA 92108 -3546
Attention: Jon Werner, Division President
With a copy to: Hecht, Solberg, Robinson & Goldberg
600 West Broadway, 8th Floor
San Diego, CA 92101
Attention: Darryl O. Solberg, Esq.
A party may change the address by giving notice in writing to the other party in the manner
provided for herein, and thereafter notices shall be addressed and transmitted to the new
address.
24. Cooperation. City agrees that it shall accept for processing and promptly take
action on all applications, provided they are in a proper form and acceptable for required
processing for discretionary permits, tract or parcel maps, or other land use entitlement for
development of the Project in accordance with the provisions of this Agreement. City shall
cooperate with Owner in providing expeditious review of arty such applications, permits, or
land use entitlement and, upon request and payment of any costs and/or extra fees associated
therewith by Owner, City shall assign to the Project planner(s), building inspector(s), and/or
other staff personnel as required to insure the timely processing and completion of the Project.
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8556.001/090797 -23-
' 25. Miscellaneous Provisions.
25.1 Recordation of Agreement. This Agreement and any amendment or
cancellation thereof shall be recorded with the County Recorder by the City Clerk within the
period required by Section 65868.5 of the Government Code.
25.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties, and there are no oral or written representations.
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
25.3 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, the remainder of this
Agreement shall not be affected thereby to the extent such remaining provisions are not
rendered impractical to perform taking into consideration the purposes of this Agreement.
Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 12 of
this Agreement, including the payment of the fees set forth therein, are essential elements of
this Agreement and City would not have entered into this Agreement but for such provisions,
and therefore in the event such provisions are determined to be invalid, void or unenforceable,
this entire Agreement shall be null and void and of no force and effect whatsoever.
25.4 Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with the laws of the State
of California. This Agreement shall be construed as a whole according to its fair language
and common meaning to achieve the objectives and purposes of the parties hereto, and the
rule of construction to the effect that ambiguities are to be resolved against the draining party
shall not be employed in interpreting this Agreement, all parties having been represented by
counsel in the negotiation and preparation hereof.
25.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
25.6 Singular and Plural. As used herein, the singular of any word includes
the plural.
25.7 Joint and Several Obligations. If at-any time during the term of this
Agreement the Property is owned, in whole or in part, by more than one Owner, all
obligations of such Owners under this Agreement shall be joint and several, and the default of
any such Owner shall be the default of all such Owners. Notwithstanding the foregoing, no
Owner of a single lot which has been finally subdivided and sold to such Owner as a member
of the general public or otherwise as an ultimate user shall have any obligation under this
Agreement except as provided under Section 5 hereof.
mcrtuuinXcambinea.av 1
8336.001IM397 -24-
' 25.8 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
25.9 Waiver. Failure by a party to insist upon the strict performance of any
of the provisions of this Agreement by the other party, or the failure by a party to exercise its
rights upon the default of the other party, shall not constitute a waiver of such party's right to
insist and demand strict compliance by the other party with the terms of this Agreement
thereafter.
25.10 No Third -Party Beneficiaries. This Agreement is made and entered into
for the sole protection and benefit of the parties and their successors and assigns. No other
person shall have any right of action based upon any provision of this Agreement.
25.11 Force Maieure. Neither party shall be deemed to be in default where
failure or delay in performance of any of its obligations under this Agreement is caused by
floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other
labor difficulties beyond the party's control (including the party's employment force),
government regulations, court actions (such as restraining orders or injunctions), or other
causes beyond the party's control. If any such events shall occur, the term of this Agreement
and the time for performance by either party of any of its obligations hereunder may be
extended by the written agreement of the parties for the period of time that such events
prevented such performance, provided that the term of this Agreement shall not be extended
under any circumstances for more than five (5) years.
25.12 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent performance by the
party benefrtted thereby of the covenants to be performed hereunder by such benefitted party.
25.13 Successors in Interest. The burdens of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties
to this Agreement. All provisions of this Agreement shall be enforceable as equitable
servitude and constitute covenants running with the land. Each covenant to do or refrain from
doing some act hereunder with regard to development of the Property: (a) is for the benefit of
and is a burden upon every portion of the Property; (b) runs with the Property and each
portion thereof, and (c) is binding upon each patty and each successor in interest during
ownership of the Property or any portion thereof.
25.14 Counterparts. This Agreement may executed by the parties in
counterparts, which counterparts shall be construed together and have the same effect as if all
of the parties had executed the same instrument.
25.15 Jurisdiction and Venue. Any action at law or in equity arising under
this Agreement or brought by an party hereto for the purpose of enforcing, construing or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Riverside, State of California, and the parties hereto waive
all provisions of law providing for the filing, removal or change of venue to any other court.
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8576.001/090397 -25-
25.16 Further Actions and Instruments. Each of the parties shall cooperate
with and provide reasonable assistance to the other to the extent contemplated hereunder in
the performance of all obligations under this Agreement and the satisfaction of the conditions
of this Agreement. Upon the request of either party at any time, the other party shall
promptly execute, with acknowledgment or affidavit if reasonably required, and file or record
such required instruments and writings and take any actions as may be reasonably necessary
under the terms of this Agreement to carry out the intent and to fulfill the provisions of this
Agreement or to evidence or consummate the transactions contemplated by this Agreement.
25.17 Eminent Domain. No provision of this Agreement shall be construed to
limit or restrict the exercise by City of its power of eminent domain.
25.18 Agreement for Service of Process. In the event owner is not a resident
of the State of California or it is an association, partnership or joint venture without a
member, partner or joint venturer resident of the State of California, or it is a foreign
corporation, then in any such event, Owner shall file with the Planning Director, upon its
execution of this Agreement, a designation of a natural person residing in the State of
California, giving his or her name, residence and business addresses, as its agent for the
purpose of service of process in any court action arising out of or based upon this Agreement,
and the delivery to such agent of a copy of any process in any such action shall constitute
valid service upon Owner. If for any reason service of such process upon such agent is not
feasible, then in such event Owner may be personally served with such process out of this
County and such service shall constitute valid service upon owner. Owner is amenable to the
process so served, submits to the jurisdiction of the Court so obtained and waives any and all
objections and protests thereto.
26. Authority to Execute. Each party hereto expressly warrants and represents that
he /she /they has/have the authority to execute this Agreement on behalf of his/her /their
corporation, partnership, business entity, or governmental entity and warrants and represents
that he /she/they has/have the authority to bind his/her /their entity to the performance of its
obligations hereunder.
9536.001I M397 -26-
IN WITNESS WHEREOF this Agreement has been executed by the authorized
' representatives of the parties hereto.
"CITY"
City of Temecula
By:
ATTEST:
June S. Greek, City Clerk
APPROVED AS TO FORM:
Peter M. Thorson, City Attorney
[Notary Required]
[SIGNATURES CONTINUE ON NEXT PAGE]
=Mi11iMwn1binCd."1
8536.0 01109 03 97 _27_
Patricia H. Birdsall, Mayor
ri
"OWNER"
Temeku Hills: Temeku Hills Development Partners, L.P.,
a California limited partnership
By: McMillin Project Services, Inc.,
a California corporation, as Attorney -in -fact
Under Durable Power of Attorney
Its:
By:
Its:
UDC: UDC Homes, Inc.,
a California corporation
0
Its:
0
Its:
[Notary Required]
=millin \wmbinttl.,W1
8536.0011090397 -28-