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HomeMy WebLinkAbout98-065 CC ResolutionRESOLUTION NO. 98-65 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA, CALIFORNIA, APPROVING THAT CERTAIN AGREEMENT ENTITLED "PARKLAND IMPROVEMENT AGREEMENT," FOR THE MURRIETA CREEK PILOT PARK PROJECT WHEREAS, concurrent with the execution of this Agreement, the City Council conducted a public hearing pertaining to Planning Application No. PA95-0130 (Amendment to Development Agreement) on June 23, 1998, and July 14, 1998, at which time interested persons had opportunity to testify either in support or opposition of Planning Application No. PA95-0130; WHEREAS, the City Council received a copy of the Commission proceedings and Staff Report regarding Planning Application No. PA95-0130; WHEREAS, concurrently with the approval of this Agreement, the City and Owner entered into the Second Amendment to Development Agreement No. 90-1 on July 14, 1998; WHEREAS, the Second Amendment amended Section 4.2.1 (g) of the Development Agreement which requires that the five (5) acres of property located west of the Murrieta Creek Channel, east of Diaz Road and north of Winchester Road, shall be developed as a park in accordance with the design and construction requirements set forth in this Parkland Improvement Agreement; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TEMECULA DOES RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. Findings. The City Council in approving the proposed Development Agreement Amendment makes the following findings, to wit: 1. The development to be carried out pursuant to the Second Amendment to Development Agreement No. 90-1 is consistent with the General Plan for Temecula and with all applicable requirements of State law and City ordinances. 2. The overall development of the land is designed for the protection of the public health, safety and general welfare. Section 2. Environmental Compliance. An Initial Study has been prepared for this project. The Initial Study determined that although the proposed project could have a significant effect on the environment, these effects are not considered to be significant due to mitigation measures contained in the project design. Any potentially significant impacts will be mitigated. Section 3. The "Parkland Improvement Agreement" by and between Westside Business Centre, LLC and the City of Temecula is hereby approved and the Mayor is hereby authorized and directed to execute the Agreement on behalf of the City of Temecula in substantially the form attached hereto as Exhibit A and incorporated herein by this reference. Section 4. The City Clerk shall certify the adoption of this Resolution. Section 5. PASSED, APPROVED, AND AD~-t~i4th _~t~, 1998. -~t-6n l~oberts, Mayor ATTEST: us ,on s--, ci --yz r [SEAL] STATE OF CALIFORNIA COUNTY OF RIVERSIDE) ss CITY OF TEMECULA I, Susan W. Jones,City Clerk of the City of Temecula, California, do hereby certify that Resolution No. 98-65 was duly and regularly adopted by the City Council of the City of Temecula at a regular meeting thereof held on the 14th day of July, 1998 by the following vote: AYES: 5 COUNCILMEMBERS: Comerchero, Ford, Lindemans, Stone, Roberts NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None W. Jones, CMC City Clerk EXHIBIT A PARKLAND AGREEMENT CITY OF TEMECULA PARKLAND IMPROVEMENT AGREEMENT This Parkland Improvement Agreement is made and entered into and shall be dated as of July 14, 1998 by and between the City of Temecula, California, a Municipal Corporation ("City"), and Westside Business Centre LLC, a California limited liability company ("Owner"). In consideration of the mutual covenants and agreements contained herein, the City and Owner hereby agree as follows: 1. Recitals. This Agreement is made with respect to the following facts which each of the parties agrees and acknowledges are true and correct: a. On October 18, 1990, the Owner's predecessor-in-interest, Rancho Core Associates No. 1, a California limited partnership, entered into that certain Development Agreement No. 1 with the City of Temecula (the "Development Agreement") which became effective on October 19, 1990. The Development Agreement at Section 4.2.1 (g) originally required the Owner to landscape approximately five (5) acres located west of the Riverside County Flood Control District Murietta Creek Channel, east of Diaz Road and north of Winchester Road and to cause the Owner's Association of the development to maintain three acres in the vicinity of Lots 12, 95 and 119 of Tract No. 21383 as a park. b. Concurrently with the approval of this Agreement, the City and Owner entered into the Second Amendment to Development Agreement No. 90-1 on July 14, 1998. This Second Amendment amended Section 4.2.1 (g) of the Development Agreement which requires that the five (5) acres of property located east of the Murietta Creek Channel, east of Diaz Road and north of Winchester Road, shall be developed as a park in accordance with the design and construction requirements set forth in this Parkland Improvement Agreement. The legal description of the property on which the park will be developed is attached hereto as Exhibit A and is incorporated herein by this reference as though set forth in full ("Park Property"). The Park Property is owned in fee by the Owner. 2. Desit, n of Park Improvements a. Owner has submitted to the City construction plans for the Park ("Park Plans"), which plans are on file in the Office of the Director of Community Services. The Park Plans are hereby approved by the City. b. The Owner shall construct the Parkland Improvements in accordance with the Park Plans and the City Standards. The Director of Community Services of the City shal 1 approve any changes to the Park Plans. City reserves the right to modify the standards applicable to the Park Property, the Parkland Improvement Plans, and this Agreement, when necessary to protect the public health, safety or welfare or comply with applicable State or Federal law or City zoning ordinances. If Owner requests and is granted an extension of time for completion of the improvements, City may apply the standards in effect at the time of the extension. c. With in fifteen (15) business days of the approval of this Parkland Improvement Agreement, Owner shall submit an estimated cost of the Parkland Improvements, which cost estimate shall be approved by the Director of Community Services. 3. Owner's Obligations to Construct Parkland Improvements. Owner Shall: a. Complete all the work required to construct and install all of the Parkland Improvements in conformance with the Parkland Improvement Plans and the City Standards, at Owner's sole cost and expense, within two (2) years after the effective date of the Second Amendment to the Development Agreement; b. Furnish the necessary materials for completion of the Parkland Improvements in conformity with the approved Parkland Improvement Plans and City standards; c. Acquire and offer to dedicate to the City, at Owner's sole cost and expense, of the Park Property and all real property, rights-of-way, easements and other interests in real property necessary for construction or installation of the Parkland Improvement s, free and clear of all liens and encumbrances. 4. Acquisition and Dedication of Easements or Rights-of-Way. If any of the Parkland Improvements and land development work contemplated by this Agreement are to be constructed or installed on land not owned by Owner, no construction or installation shall be commenced before: a. The offer of dedication to City or appropriate rights-of-way, easements or other interest in real property, and appropriate authorization from the property owner to allow construction or installation of the Improvements or work, or b. The dedication to, and acceptance by, the City of appropriate rights-of-way, easements or other interests in real property, and approved by the Department of Public Works, as determined by the Director of Community Services. Nothing in this Section shall be construed as authorizing or granting an extension of time to Owner. 5. Acceptance of Park by City. For the benefit of City, the acceptance of the Owner's irrevocable offer of dedication of the Park and the Park Property by resolution of the City Council shall be contingent upon and subject to the occurrence of all of the following (or City's written waiver thereof, it being agreed that City can waive any or all such contingencies): plans. ao The Park has been constructed in accordance with all approved b. First American Title Company has issued a commitment to issue in favor of City of a CLTA Standard Coverage Owner's Policy of Title Insurance with liability equal to the value of the land and the value of the Park Improvements showing the fee interest in the Property vested in the City subject only to such title exceptions as are approved by the City Manager. c. City's approval of any environmental site assessment, soils or geological reports, or other physical inspections of the Park Property or the underlying real property. the Park. The City Council decides in its sole and absolute discretion to accept 6. Inspection and Maintenance Period. a. Owner shall obtain City inspection of the Parkland Improvements in accordance with the City standards in effect at the time of approval of the Parkland Improvement Plans. Owner shall at all times maintain proper facilities and safe access for inspection of the Parkland Improvements by City inspectors and to the shops wherein any work is in preparation. Upon completion of the work, the Owner may request a f'mal inspection by the Director of Community Services, or the Director of Community Service's authorized representative. If the Director of Community Services, or the designated representative, determines that the work has been completed in accordance with this Agreement, then the Director of Community Services shall certify the completion of the Parkland Improvements to the City Council. b. Owner shall continue to maintain the Parkland Improvements for ninety (90) days after the Director of Community Services determines they have been completed. No improvements shall be finally accepted unless the maintenance period has expired, and all aspects of the work have been inspected and determined to have been completed in accordance with the Parkland Improvement Plans and City standards. e Injury to Public Improvements, Public Property or Public Utilities Facilities. Owner shall replace or have replaced, or repair or have repaired, as the case may be, all public improvements, public utilities facilities and surveying or subdivision monuments which are destroyed or damaged or destroyed by reason of any work done under this Agreement. Owner shall bear the entire cost of replacement or repairs of any and all public property on public utility property damaged or destroyed by reason of any work done. Under this agreement whethe r such property is owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City or any public or private utility corporation or by any combination or such owners. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer. 8. Permits. Owner shall, at Owner's expense, obtain all necessary permits and licenses for the construction and installation of the improvements, give all necessary notices and pay all fees and taxes required by law. 9. Default of Owner. a. Default of Owner shall include, but not be limited to: Owner's failure to timely commence construction pursuant to this Agreement; Owner's failure to timely complete construction of the Parkland Improvements; Owner's failure to timely cure any defect in the Parkland Improvements; Owner's failure to perform substantial construction work for a period of 20 calendar days after commencement of the work; Owner's insolvency, appointment of a receiver, or the filing of any petition in bankruptcy either voluntary or involuntary which Owner fails to discharge within thirty (30) days; the commencement of a foreclosure action against the Subdivision or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or Owner's failure to perform any other obligation under this Agreement. City shall provide written notice of any default to Owner. Owner shall cure any such default within fifteen (15) calendar days of the effective date of the Notice. In the event such default relates to matters which cannot be cured within the cure period with reasonable diligence or by the payment of monies due within the cure period, the cure period shall be extended to a maximum period of ninety (90) days, provided Owner commences to cure the default within the 15 day cure period and diligently pursues the cure to completion. b. The City reserves to itself all remedies available to it at law or in equity for breach of Owner's obligations under this Agreement. c. In the event that Owner fails to perform any obligation hereunder, Owner agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorneys' fees. d. The failure of City to take an enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of Owner. Owner agrees that the choice of remedy or remedies for Owner's breach shall be in the discretion of City. e. A default under this Agreement shall also constitute a default under Development Agreement 90-1 between the City and Owner. 10. Warranty. Owner shall guarantee or warranty the work done pursuant to this Agreement for a period of one year after expiration of the maintenance period and final acceptance by the City Council of the work and improvements against any defective work or labor done or defective materials furnished. Where Parkland Improvements are to be constructed in phases or sections, the one year warranty period shall commence after City acceptance of the last completed improvement. If within the warranty period any work or improvement or part of any work or improvement done, furnished, installed, constructed or caused to be done, furnished, installed or constructed by Owner fails to fulfill any of the requirements of this Agreement or the Parkland Improvement Plans and specifications referred to herein, Owner shall without delay and without any cost to City, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Owner fail to act promptly or in accordance with this requirement, Owner hereby authorizes City, at City option, to perform the work twenty (20) days after mailing written notice of default to Owner and to Owner's Surety and agrees t o pay the cost of such work by City. Should City determine that an urgency requires repairs or replacements to be made before Owner can be notified, City may, in its sole discretion, make the necessary repairs or replacements or perform the necessary work and Owner shall pay to City the cost of such repairs. 11. Owner Not Agent of City. Neither Owner nor any of Owner's agents or contractors are or shall be considered to be agents of City in connection with the performance of Owner's obligations under this Agreement. 12. Injury to Work. Until such time as the Parkland Improvements are accepted by City, Owner shall be responsible for and bear the risk of loss to any of the improvements constructed or installed. City shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage, regardless of cause, happening or occurring to the work or improvements specified in this Agreement prior to the completion and acceptance of the work or improvements. All such risks shall be the responsibility of and are hereby assumed by Owner. 13. Other Agreements. Nothing contained in this Agreement shall preclude City from expending monies pursuant to agreements concurrently or previously executed between the parties, or from entering into agreement with other subdividers for the apportionment of costs of water and sewer mains, or other improvements, pursuant to the provisions of the City ordinances providing therefor, nor shall anything in this Agreement commit City to any such apportionment. 14. Owner's Obligation to Warn Public During Construction. Until final acceptance of the Parkland Improvements, Owner shall give good and adequate warning to the public of each and every dangerous condition existent in said improvements, and will take all reasonable actions to protect the public from such dangerous condition. 15. Final Acceptance of Work. Acceptance of the work on behalf of City shall be made by the City Council upon recommendation of the Director of Community Services after final completion and inspection of all Parkland Improvements. Such acceptance shall not constitute a waiver of defects by City. 16. Indemnity/Hold Harmless. Owner has prepared or caused to be prepared plans and specifications for the Parkland Improvements and has agreed to construct and install the Parkland Improvements. City or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Owner, its agents or employees in the performance of this Agreement. Owner further agrees to indemnify, protect and hold harmless City, its officials and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions or Owner, its agents or employees in the performance of this Agreement, including all claims, demands, caus es of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the Parkland Improvements and to pay all attorneys' fees and litigation costs and expenses of the City in defending itself against any such claim. This indemnification and Agreement to hold harmless shall extend to injuries to persons and damages or taking of prop erty resulting from the design or construction of the Parkland Improvements as provided herein, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design or construction of public drainage systems, streets and other public improvements. Acceptance of any of the Parkland Improvements shall not constitute any assumption by the City of any responsibility for any damage or taking covered by this paragraph. City shall not be responsible for the design or construction of the Parkland Improvements pursuant to the approved Parkland Improvement Plans, regardless of any negligent action or inaction taken by the City in approving the plans, unless the particular improvement design was specifically required by City over written objection by Owner submitted to the Director of Community Services before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design. After acceptance of the Parkland Improvements, the Owner shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect, however, Owner shall not be responsible for routine maintenance. Provisions of this paragraph shall remain in full force and effect for ten (10) years following the acceptance by the City of Parkland Improvements. Owner represents to the City that the architects and engineers who designed the Parkland Improvements are fully qualified and competent to perform the work of designing and preparing construction drawings for the Parkland Improvements. It is the intent of this section, therefore, that Owner shall be responsible for all liability for design and construction of the Parkland Improvements installed or work done pursuant to this Agreement and that City shal 1 not l0 be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving, reviewing, checking, or correcting any plans or specifications or in approving, reviewing or inspecting any work or construction. The improvement security shall not be required to cover the provision of this paragraph. 17. Plan Check, Permits, Inspection and Certification Fees. Owner shall bear all of the costs of plan checks, permits, inspections and certifications required by City standards and codes. City Council may, at any time, waive or refund the costs of plan check, permit, inspection or certification costs if, in its sole and absolute discretion, it determines that the development of the Park and the City's waiver of such costs is in the public interest. 18. Time of the Essence. Time is of the essence of this Agreement. 19. Time for Completion of Work Extensions. Owner shall complete construction of the Parkland Improvements and convey all real property or interest therein to the City as may be required by this Agreement no later than two (2) years from the effective date of the Second Amendment to the Development Agreement. 20. No Vesting of Rights. Performance by Owner of this Agreement shall not be construed to vest Owner' s rights with respect to any change in any change in any zoning or building law or ordinance. 21. Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by registered mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date it is delivered in person, or, if mailed, three (3) business days following the date of deposit in the United States Mail. Notices shall be addressed as follows unless a written change of address is filed with the City: Notice to City: 11 City Manager City of Temecula 43200 Business Park Drive Post Office Box 9033 Temecula, California 92589-9033 Notice to Owner: Westside Business Centre LLC c/o Dendy Real Estate & Investment Co. Attention: Bill J. Dendy, President 22. Severability. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. 23. Litigation or Arbitration. In the event that suit or arbitration is brought to enforce the terms of this contract, the prevailing party shall be entitled to litigation costs and reasonable attorneys' fees. 24. Entire Agreement. This Agreement constitutes the entire Agreement of the parties with respect to the subject matter, except for matters which may be included in Development Agreement No. 90-1 between the City and Owner, as amended. In the event of a conflict between the terms of the Development Agreement and this Agreement, the terms of the Development Agreement shall prevail. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representative of the parties. In the case of the City, the appropriate party shall be the City Manager. ///// 12 ~ IN WITNESS WHEREOF the parties hereto have executed this Agreemere as of the date first written above. CITY OF TEMECULA BY: Attest: Ronald Roberts Mayor Approved As to Form: Susan Jones, CMC City Clerk Peter M. Thorson City Attorney WESTSIDE BUSINESS CENTRE LLC, a California limited liability company By: Dendy Real Estate & Investments Co., Inc., a California corporation, Manager By: Bill J. Dendy Presidem 14 ALL-PURPOSE ACKNOWLEDGMENT State of California County of Riverside On ,1998, before me, , personally appeared [] [] personally known to me -OR- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ar e 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. Witness my hand and official seal. SIGNATURE OF NOTARY [1 [] INDIVIDUAL(S) OFFICER(S) (TITLE[S]): CAPACITY CLAIMED BY SIGNER [1 [1 [] [] [] PARTNER(S) ATTORNEY-IN-FACT TRUSTEE(S) CHAIRPERSON/MAYOR OTHER: SIGNER IS REPRESENTING: 15 EXHIBIT A LEGAL DESCRIPTION OF PARK PROPERTY PARCEL 1: THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 4646, AS SHOWN BY PARCEL MAP ON FILE IN BOOK 6, PAGE 75 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, LYING NORTHEASTERLY OF THE NORTHEASTERLY LINE OF DIAZ ROAD AS SHOWN SAID PARCEL MAP NO. 4646. PARCEL 2: THAT PORTION OF PARCEL 3 OF PARCEL MAP NO. 4646, AS SHOWN BY PARCEL MAP ON FILE IN BOOK 6, PAGE 75 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, LYING NORTHEASTERLY OF THE NORTHEASTERLY LINE OF DIAZ ROAD AS SHOWN SAID PARCEL MAP NO. 4646. EXCEPTING THEREFROM THAT PORTION AS COVEYED TO THE EASTERN MUNICIPAL WATER DISTRICT BY DEED RECORDED JUNE 30, 1989 AS INSTRUMENT NO. 218392 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 3: THAT PORTION OF PARCEL 4 OF PARCEL MAP NO. 4646, AS SHOWN BY PARCEL MAP ON FILE IN BOOK 6, PAGE 75 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, LYING NORTHEASTERLY OF THE NORTHEASTERLY LINE OF DIAZ ROAD AS SHOWN SAID PARCEL MAP NO. 4646. EXCEPTING THEREFROM THAT PORTION AS CONVEYED TO THE EASTERN MUNICIPAL WATER DISTRICT BY DEED RECORDED JUNE 30, 1989 AS INSTRUMENT NO. 218392 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 16