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HomeMy WebLinkAbout01-049 CC ResolutionRESOLUTION NO. 01-49 A RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF TEMECULA APPROVING THAT CERTAIN AGREEMENT ENTITLED "AGREEMENT FOR REIMBURSEMENT OF COSTS OF CONSTRUCTION PUBLIC IMPROVEMENTS (DENDY PARKWAY) BETWEEN CITY OF TEMECULA AND MS TEMECULA II LLC (PA00-0355)" THE CITY COUNCIL OF THE CITY OF TEMECULA HEREBY RESOLVES AS FOLLOWS: Section 1. The City Council of the City of Temecula does hereby find, determine and declare that: a. MS Temecula II, LLC ("Developer") is the owner of approximately 31 acres of real property located east of Winchester Road between Dendy Parkway and Remington Avenue, Temecula California. b. On November 15, 2000, the Planning Commission of the City of Temecula adopted Resolution No. 2000-034 approving Planning Application No. 2000-0335 (the "Project"). c. Condition 41 b. and c. of the Resolution provides that prior to issuance of building permits, the Developer is required to construct certain public works improvements consisting of the construction of curb, gutter, sidewalk, and one half of Dendy Parkway as described in the Agreement ("Improvements"). The Improvements are necessary for the development of Project. d. Developer and City estimate that the cost of the Improvements should be one hundred thirty-four thousand, six dollars ($134,006.00) but the parties recognize that economic conditions at the time of bidding and construction conditions could alter the accuracy of the estimate. e. Developer has offered to construct the improvements provided Developer is reimbursed by the owners of other property which benefits from the Improvements in their fair share of contribution, to the extent provided in the Agreement. f. The property which is benefited by the Improvements is the Milgard Property located at the southwest corner of Diaz Road and Dendy Parkway, Temecula, California. The owners of this property were notified of the date and time of the meeting at which the Council would consider the approval of the Agreement and were notified of their right to address the Council on the Agreement. This notice was sent by mail and delivered telephonically to a representative of the owner of the property not less than ten (10) calendar days prior to the Council's consideration of the Agreement. Section 2. The City Council hereby approved that certain agreement entitled "Agreement for Reimbursement of Costs of Construction Public Improvements (Dendy Parkway) Between City of Temecula and Ms Temecula II, LLC (PA 2000-0335)" and authorizes the Mayor R:/Resos2001/Resos 01-49 I to execute the Agreement on behalf of the City in substantially the form attached hereto as Exhibit A. Section 3. matter required by law. The City Clerk shall certify to the adoption of this Resolution in the PASSED, APPROVED AND ADOPTED by the City Council of the City of Temecula this 12th day of June, 2001. ./~(,/~__~__~  ~ff Comerchero, Mayor ATTEST: [SEAL] R:/Resos2001/Resos 01-49 2 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE) ss CITY OF TEMECULA ) I, Susan W. Jones, CMC, City Clerk of the City of Temecula, hereby do certify that the foregoing Resolution No. 01-49 was duly adopted at a regular meeting of the City Council of the City of Temecula on the 12th day of June, 2001 by the following roll call vote: AYES: 4 NOES: 0 ABSENT: 1 ABSTAIN: 0 COUNCILMEMBERS: Naggar, Roberts, Stone, Comerchero COUNCILMEMBERS: None COUNCILMEMBERS: Pratt COUNCILMEMBERS: None susa 'w. Jon s: CUC (..~__.~GIty Clerk R:/Resos2001/Resos 01-49 3 EXHIBIT A DENDY PARKWAY REIMBURSEMENT AGREEMENT AGREEMENT FOR PARTIAL REIMBURSEMENT OF COSTS OF CONSTRUCTION OF CERTAIN PUBLIC IMPROVEMENTS (DENDY PARKWAY) BETWEEN CITY OF TEMECULA AND MS TEMECULA II, LLC (PA 2000-0335) THIS REIMBURSEMENT AGREEMENT is entered into and effective as of June 12, 2001 by and between the City of Temecula, a municipal corporation ("City"), and MS Temecula II LLC ("Developer"). In consideration of the mutual promises and benefits described herein, the parties hereto agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and purposes, which each of the parties hereto acknowledge and agree are true and correct: 1.1 Developer is the owner of approximately 31 acres of real property generally located east of Winchester Road between Dendy Parkway and Remington Avenue, Temecula California ("Property") which is legally described on Exhibit A, attached hereto. 1.2 On November 15, 2000, the Planning Commission of the City of Temecula adopted Resolution No. 2000-034 ("Resolution") approving Planning Application No. 00-0335 (the "Project"). 1.3 Condition 41 b. and c. of the Resolution provides that prior to issuance of building permits, the Developer is required to construct certain off-site public improvements ("Improvements") which are more particularly described in Exhibit B, attached hereto, and Improvement Plan No. 19-99-001C0. 1.4 In order to secure Developer's obligation to construct the Improvements, the City and Developer entered into that certain Subdivision Improvement Agreement dated November 3, 2000. 1.5 One of the requied Improvements is the improvement of Dendy Parkway ("Dendy Parkway Improvements"). The Dendy Parkway Improvements are to be constructed adjacent to the Property and adjacent to the property which is legally described on Exhibit C., attached herto ("Milgard Property"). The Dendy Parkway Improvements benefit both the Property and the Milgard Property. The portion of the Dendy Parkway Improvements adjacent to the Milgard Property are also shown on Exhibit C. 1.6 Developer and City estimate that the portion of the costs of the Dendy Parkway Improvements that are in excess of the improvements required for the Property and are for the benefit of the Milgard Property should be approximately One Hundred Thirty Four Thousand Six Dollars ($134,006.00), as more particularly shown on 636607.3 May 22, 2001 Exhibit B., but recognize that economic conditions at the time of bidding and construction conditions could alter the accuracy of the estimate. 1.7 Developer has offered to construct the Dendy Parkway Improvements which are in excess of the improvements required for the Developer's subdivision, provided Developer is reimbursed by the City for its fair share of the costs of the Dendy Parkway Improvements allocable to the Milgard Property, to the extent provided in this Agreement. 1.8 The parties now desire to set forth the terms of the reimbursement to Developer of a fair share portion of the costs of the Dendy Parkway Improvements that are allocable to the Milgard Property. 1.9 This Agreement is being entered into pursuant to the authority set forth in Government Code Section 66405 et seq. and all applicable laws, regulations and local ordinances. 2. Construction of Public Improvements. Developer shall construct and install the Improvements in accordance with the Subdivision Improvement Agreement. 3. Reimbursement of Costs of Construction. Upon the earlier of the acceptance of the Dendy Parkway Improvements by the City Council in accordance with the terms of the Subdivision Improvement Agreement or the opening of the Dendy Parkway Improvements for public use, Developer shall submit to the Director of Public Works the actual costs of installing the Dendy Parkway Improvements, which costs may include, but are not limited to reasonable and customary costs for design, administration, and overhead, construction costs, and related costs of plan check, inspection, permit, fees, bonds and engineering (the "Reimbursable Costs") and all invoices and other documentation as reasonably required by the Director which support the Reimbursable Costs actually incurred. City shall reimburse Developer for the Reimbursable Costs as provided in this Agreement. 3.1 For a period of fifteen (15) years following the date of this Agreement, City agrees to impose as a condition of development, to the extent lawful and within its municipal powers, including Government Code Sections 66405 et seq. on the Milgard Property or any portion thereof, as identified on Exhibit C, a condition requiring payment by the owner(s) of the Milgard Property of the Milgard Property's fair share of the Reimbursable Costs. The City believes that it has the authority to impose this condition pursuant to, among other authority, Government Code Sections 66485-66487. 3.2 Simple interest shall accrue from the date the Reimbursable Costs are incurred by the Developer on the outstanding balance of the Reimbursable Costs at eight percent (8%) per year until the Developer is reimbursed as provided in this Agreement. 636607.3 May 22, 2001 -2- 3.3 Within fifteen (15) business days of receipt by the City of any funds from the owner(s) of the Milgard Property pursuant to the conditions as described in Section 3.1, City shall pay such amount to the Developer at the address specified in Section 4 of this Agreement. It is the Developer's obligation to keep the City informed of its current address. 3.4 In the event the Milgard Property does not receive a development approval within fifteen (15) years of the date of this Agreement or the conditions of development requiring payment of the Reimbursable Costs are found to be invalid by a court of competent jurisdiction, or the City, after good faith efforts, is otherwise unable to recover all or a portion of such Reimbursable Costs, City shall have no obligation to pay Developer the Reimbursable Costs. Notwithstanding anything to the contrary herein, City agrees to use good faith efforts to impose the conditions of development as set forth in Section 3.1 and collect the Reimbursable Costs from the owner(s) of the Milgard Property. 3.5 In the event a legal action is filed challenging the validity of the conditions of development imposed by the City as set forth in Section 3.1 Developer and City shall meet and in good faith attempt to develop a strategy for settling the litigation and modifying this Agreement in order to equitably accommodate the interest of all parties. In the event such an effort does not resolve the litigation or the parties are unable to agree upon a modification of this Agreement, Developer may request the City to defend the litigation. The Developer shall deposit with the City an amount reasonably determined by the City to cover the estimated costs of the defense of the litigation. The City shall have no obligation to defend the litigation until such time as such amount is deposited with the City. The deposit maybe in the form ora deposit in an interest bearing account with the principle payable to the City pursuant to this Agreement and the interest on such account payable to the Developer. In the event that during the course of the litigation the City determines that the estimated costs of the litigation will exceed the amount on deposit, the City may require an additional deposit in order to proceed with the defense of the litigation. In defending the litigation, the City and its attorneys shall consult with Developer and keep the Developer fully apprised of the status of the litigation and the on-going costs of the litigation and provide an accounting regarding the use of the deposit. The Developer may terminate the defense of the litigation at any time upon written notice to the City. The City shall deduct from the Deposit the reasonable legal fees and litigation expenses incurred by the City in defending the litigation and any monetary awards to the plaintiffs or petitioners which may be imposed by the court, such as, but not limited to an award of attorney fees. 4. Notice. Any payments of the Reimbursable Costs or notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return 636607.3 May 22, 2001 -3- receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by Notice: To City: City of Temecula 43200 Business Park Drive Post Office Box 9033 Temecula, CA 92589-9033 Attention: Director of Finance To Developer: MS Temecula II, LLC Attention: David Simon 1999 Avenue of the Stars, Suite 2000 Los Angeles, CA 90067 Phone (310) 788-2200 With Copies to: Kearney Real Estate Company Attention: John Bragg 4275 Executive Square, Suite 800 La Jolla, CA 92037 Phone (858) 546-2930 5. Assignment. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, successors, and assigns of the Parties. Notwithstanding the foregoing, any reimbursement rights hereunder shall remain with Developer unless Developer specifically assigns those rights to a successor by a written assignment delivered to the City. Developer may assign its fights and transfer it obligations under this Agreement only with the City's prior written consent, which shall not be unreasonably withheld or delayed, provided however that City consent shall not be required for an assignment to a subsidiary or affiliate of Developer or any entity that is an assignee of the Subdivision Improvement Agreement. Immediately upon the granting of such consent and the City's receipt of a duly executed assignment and assumption agreement by Developer and Assignee in accordance with the requirements of this Agreement, Developer shall be released from all liability and obligations hereunder. 6. Integration of Agreement Terms. Except for the Subdivision Improvement Agreement, this Agreement contains the entire understanding between the parties relating to the obligations of the parties relating to the reimbursement of the Reimbursable Costs. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, relating to the reimbursement for the costs of the Improvements are merged into this Agreement and shall be of no further force or effect for the Subdivision Improvement Agreement. 636607.3 May 22,2001 7. Independent Investigation. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 8. Indemnification. Each party shall indemnify, protect and hold harmless the other party, its officers, officials, employees and volunteers from and against any and all claims, demands, losses, defense costs or expenses, or liability of any kind or nature, including but not limited to reasonable attorney fees and litigation costs, which the indemnified party, its officers, agents and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property arising out of other party's negligent or wrongful acts or omissions in performing or failing to perform under the terms of this Agreement, excepting only liability arising out of the indemnified party's own negligence or wrongful conduct. 9. Applicable Law/Venue. The City and Developer understand and agree that the laws of the State of California shall govern the fights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with geographic jurisdiction over the City of Temecula. In the event litigation is filed with respect to this Agreement the prevailing party shall be entitled to reasonable attorney fees and litigation expenses as the court may determine. 10. Authority to Execute Agreement. The person or persons executing this Agreement on behalf of Developer wan-ants and represents that he or she has the authority to execute this Agreement on behalf of the Developer and has the authority to bind Developer to the performance of its obligations hereunder. 11. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. 12. Modification. No modification, waiver or discharge of this Agreement shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver or discharge is or may be sought. 13. Further Assurances. Each party shall tall all actions reasonably necessary to implement the terms of this Agreement. 14. Exhibits. ' The following exhibits are attached to this Agreement and each is incorporated into this Agreement as though set forth in full: Exhibit A. Legal Description of Developer's Property Exhibit B. Public Improvements to Be Constructed by Developer/Construction Cost Estimate 636607.3 May 22, 2001 IIIII Exhibit C Property Benefited by Public Improvements to Be Constructed by Developer (Milgard Property) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF TEMECULA Jeff Comerchero Mayor Attest: Susan Jones, CMC City Clerk Approved As to Form: Peter M. Thorson City Attorney 636607.3 May 22, 2001 -6- DEVELOPER MS TEMECULA Il, LLC, a Delaware Limited Liability Company By: Name: Title: By: Name: Title: 636607.3 May 22, 2001 -7- EXHIBIT A LEGAL DESCRIPTION OF DEVELOPER'S PROPERTY 636607.3 May 22, 2001 EXHIBIT B PUBLIC IMPROVEMENTS TO BE CONSTRUCTED BY DEVELOPER/ CONSTRUCTION COST ESTIMATE 636607.3 May 22, 2001 EXHIBIT B SCOTTS MANUFACTURING OFF-SITE IMPROVEMENT BUDGET KEETON CONSTRUCTION Earthwork Move-in Clear and Grab Site Saw Cut Temporary Cul-de-Sac Die-Assemble Asphalt Demolition Asphalt Load & Haul Grade & Balance Export Excess Subgrade Finish Steel Grade Cut Curb Grade Cut Sidewalk Grade Cut Sidewalk Grade - Remmington Construction Water Asphalt Paving .45' Asphalt on .67 Base Increase Section to 13.5" Base Increase Section to 12" Base Concrete Curb & Ga~er Sidewalk (Winchester & Dendy) Sidewalk (Remming~on) Access Ramp Sco~s 1,500 2,000 9,500 1,600 8,500 4,500 7,000 6,000 41,500 164,000 4,496 19,893 188,389 16,000 19,800 15,500 600 52,000 Milgard 500 500 850 5O0 2,500 1,250 3,000 1,500 3,5OO 1,500 2,400 18,000 8,280 52,780 4,500 6,000 10,500 Striping and Signs Barricades Dry Utilities Utility Increase Staking General Conditions Liability Insurance Subtotal Fee Subtotal Bond 0.800/0 3.50% 125,000 31,183 6,500 13,700 3~869 471,141 16~490 487,631 2~500 490,131 500 33,000 6,960 2,000 4,000 1,058. 128,798 4~508 133,306 7OO 134,006 TOTAL CONTRACT $ 624,137 EXHIBIT C PROPERTY BENEFITTED BY PUBLIC IMPROVEMENTS TO BE CONSTRUCTED BY DEVELOPER (MILGARD PROPERTY) 636607.3 May 22, 2001