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HomeMy WebLinkAbout97-10 CC OrdinanceORDINANCE NO. 97-10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA, CALIFORNIA APPROVING AN AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT NO. 5 BETWEEN THE CITY OF TEMECULA AND BRAMALEA CALIFORNIA, LLC FOR TM 23100, 23101, 23103 AND TPM 28503, WITHIN SPECIFIC PLAN NO. 199 (PLANNING APPLICATION NO. PA97-0030) WHEREAS, Section 65864 cl =. of the Government Code of the State of California and Temecula City Resolution No. 91-52 authorize the execution of agreements establishing and maintaining requirements applicable to the development of real property; and, WHEREAS, in accordance with the procedure specified in said Resolution, Bramalea California, LLC has filed with the City of Temecula an application for a Development Agreement which reflects an amendment and restatement of existing County Development Agreement No. 5 (hereinafter "this Agreement"), of a residential housing subdivision on its property for Tracts 23100, 23101, 23103 and 28503 (305 lots), hereinafter the "Subject Property" which application has been reviewed and accepted for filing by the Community Development Director; and, - WHEREAS, notice of the City's intention to consider adoption of this Agreement with Bramalea California, LLC has been duly given in the form and manner required by law, and the Planning Commission and City Council of said City have each conducted public hearings on April 21, 1997 and May 5, 1997 (Planning Commission), and May 27, 1997 (City Council) at which time it heard and considered all evidence relevant and material to said subject. THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN AS FOLLOWS: Section 1. FINDINGS. The City Council hereby finds and determines, with respect to this Agreement by and between the City of Temecula and Bramalea California, LLC that it: A. Is consistent with the objectives, policies, general land uses, and programs specified in the City of Temecula's General Plan in that this Agreement makes reasonable provision for the use of certain real property for residential development consistent with the General Plan's land use designation of Low -Medium Density Residential; B. Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Subject Property referred to herein is located as this Agreement provides for residential development pursuant to a Specific Plan; Ords/97-10 C. Is in conformity with the public convenience, general welfare, and good land use practice because it makes reasonable provision for a balance of land uses compatible with the remainder of the City; D. Will not be detrimental to the health, safety, or general welfare because it provides adequate assurances for the protection thereof; E. Notice of the public hearing before the Planning Commission was published in a newspaper of general circulation at least ten (10) days before the Planning Commission public hearing, and mailed or delivered at least ten (10) days prior to the hearing to the project applicant and to each agency expected to provide water, sewer, schools, police protection, and fire protection, and to all property owners within six hundred feet (600') of the property as shown on the latest equalized assessment roll; F. Notice of the public hearing before the Planning Commission included the date, time, and place of the public hearing, the identity of the hearing body, a general explanation of the matter to be considered, a general description in text or diagram of the location of the real property that is the subject of the hearing, and of the need to exhaust administrative remedies; G. Notice of the public hearing before the City Council was published in a newspaper of general circulation at least ten (10) days prior to the City Council public hearing, mailed at least ten (10) days prior to the hearing to the project applicant, to each agency expected to provide water, sewer, schools, police protection, and fire protection, and to all property owners within six hundred feet (600') of the property as shown on the latest equalized assessment roll; H. Notice of the City Council hearing included the date, the time, and place of the public hearing, the identity of the hearing body, the general explanation of the matter to be considered, a general description in text or by diagram of the location of the Property that is the subject of the hearing, and the notice of the need to exhaust administrative remedies; I. City Council approves this Agreement by Ordinance based upon evidence and findings of the Planning Commission and new evidence presented at its hearing on this Agreement, giving its reasons therefor and setting forth the relationship between this Agreement and the General Plan; J. The benefits that will accrue to the people of the City of Temecula from this Agreement are as follows: 1. Generation of municipal revenue; 2. Construction of public infrastructure facilities; 3. Acceleration of both the timely development of subject property as well as the payment of municipal revenue; Ords/97-10 4. Enhancement of quality of life for surrounding residents with the timely development through the elimination of dust and nuisance of partially improved lots; and 5. Payment of Public Facility Fees (fire, library, traffic signal mitigation, development and RSA). Section 2. APPROVAL. This Agreement, attached hereto and incorporated herein by this reference as Exhibit A, is hereby approved subject to the conditions set forth in Exhibit B, attached hereto and incorporated herein by this reference. The Mayor is authorized and directed to evidence such approval by executing this Agreement for, and in the name of, the City of Temecula; and the City Clerk is directed to attest thereto; provided, however, that this Agreement shall not be executed by the City until this Ordinance takes effect and the City has received from the applicant two executed originals of said Agreement. Section 3. SEVERAMITY. The City Council hereby declares that the provisions of this Ordinance are severable and if for any reason a court of competent jurisdiction shall hold any sentence, paragraph, or section of this Ordinance to be invalid, such decision shall not affect the validity of the remaining parts of this Ordinance. Section 4. NOTICE OF ADOPTION. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be posted as required by law. Section 5. 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. PASSED, APPROVED AND ADOPTED this 10th day of June, 1997. Patricia H. Birdsall, Mayor ATTEST: 52�� ��. --< Ju reek, CMC/AAE City Clerk [SEAL] ords/97-10 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss CITY OF TEMECULA ) I, June S. Greek, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No.97-10 was duly introduced and placed upon its first reading at a regular meeting of the City Council on the 27th day of May, 1997, and that thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City Council on the 10th day of June 1997, by the following vote: AYES: 5 COUNCILMEMBERS: NOES: 0 COUNCILMEMBERS: ABSENT: 0 COUNCILMEMBERS: Ords/97-10 Ford, Lindemans, Roberts, Stone, Birdsall None None June­SGreei, CMC/AAE City Clerk ' 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 PLANNING AREAS 2, 3, 4, 6, 7, 8, 9, 10,11 and 12 PLANNING APPLICATION NO. PA 97-0030 "MARGARITA VILLAGE" BRAMALEA CALIFORNIA, LLC ' AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT BETWEEN CITY OF TEMECULA and 13RAMALEA CALIFORNIA, LLC This Amendment and Restatement of Development Agreement ("Agreement") is entered into by and among the City of Temecula, a California Municipal Corporation ("City") and Bramalea California, LLC, a California Limited Liability Company ("Owner"): RECITALS A. Pursuant to California Government Code Section 65864, seq. ("Development Agreement Statutes"), Kaiser Development Company a California Corporation 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. 325515 ' ("Development Agreement No. 5 "). B. Development Agreement No. 5 encompasses a project formerly located within County approved Specific Plan No. 199 known as "Margarita Village', a mixed use 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 residential development located in a portion of Planning Areas 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12 (the "Project"). The balance of the Original Project covered by Development Agreement No. 5 not included within Planning Areas 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12 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 Owner obtaining title to the Project as recorded in the Official Records of Riverside County, California on June 17, 1996 as Instrument No. 221922, and pursuant to the provisions of Development Agreement No. 5, Owner became successor -in -interest to the "Owner" described in Development Agreement No. 5. -1- ' 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. 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 the 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 City and have been found to be fair, just, and reasonable. H. 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. J. 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 mitigate 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, -2- ' the City is willing to reduce the County Development Agreement Fees for residential development in the Project to a level comparable to the RSA Fees. 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: (1) completion of vacant lots in Project; (2) payment of signal mitigation fees; (3) payment of library fees; (4) payment of park fees 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. City Council of 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 Facility Fee" is an amount to be established by Ordinance of City. 1.3 "County" is the County of Riverside. -3- ' 1.4 "County Development Agreement Fee" means the County public facilities and services mitigation fee set forth in Section 4.2 of Development Agreement No. S. 1.5 "Development Exaction" meats any requirement of 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. 1.6 "Development Plan" means the Existing Development Approvals.. 1.7 "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. 1.8 "Existing Development Approval(s)" means those certain development approvals relating to the Property in effect as of the effective date of this Agreement, 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. 1.9 "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. 1.10 "Financing District" means a Community Facilities District formed pursuant to the Mello -Roos Community Facilities Act of 1982 (California Government Code Section 53311 et sea., as amended); an assessment district formed pursuant to Landscaping and Lighting Act of 1972 (California Street and Highways Code Section 22500 et sea. 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 arca of the City. -4- ' 1.11 "Hazardous Substance" shall include, without limitation, any flammable explosives, radioactive materials, asbestos, polychlorinated biphenyls, chemicals known 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. 1.12 "Interim Public Facilities Fee" means the fees set forth in Section 12.2 of this Agreement. 1.13 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations, and 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 and assessments; (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. 1.14 "Owner" means Bramalea Califomia, LLC, a California Limited Liability Company, and any successor in interest to Bramalea California, LLC. 1.15 "Project" is the development of the Property in accordance I with the Development Plan. -5- ' 1.16 "Property" is the real property described in Exhibit C, attached hereto and incorporated herein by this reference. 1.17 "RSA Fee" means the fee established by County Ordinance No. 659, adopted by City by Ordinance No. 90.04. 1.18 "Subsequent Development Approvals" means all development approvals required subsequent to the Effective Date in connection with development of the Property. 1.19 "Subsequent Land Use Regulation" means any Land Use Regulation applicable to the Property adopted and effective after the Effective Date of this Agreement. 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. Notice From Mortgagee 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 City of this Agreement. 92 ' 5. Assi ng Ment. 5.1 Richt to Assi. 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 se ., 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 wsignment 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 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 a form reasonably acceptable to the City Attorney, 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 -7- City, which release shall be provided by City upon the full satisfaction by such transferring Cramer 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 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: (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, dad of trust, or other security device securing financing with -8- 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. 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 D, 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 D, 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 party 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. (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 WE ' in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terns 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 Undertakine/RelationshiD 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/[herr 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 -10- ' 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 times as the Owner deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements se 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 County Litigation Conceming Agreement. In the event the County seeks to challenge the right of City and Owner to enter into this Agreement or to terminate Development Agreement No. 5, and institutes an action, suit, or proceeding to challenge this Agreement or invalidate and/or enjoin the enforcement of this Agreement or the termination of Development Agreement No. 5, City and Owner agree to cooperate and participate in a joint defense in any action against the parties, their officers, employees, and agents, from and against any and all such obligations, liability, suit, claim, loss, judgment, or lien resulting from such action (s) brought by County, (but excluding actions to expunge any lis pendens) and to share the costs associated with attorneys fees and costs that the parties may incur as the result of any such action or lawsuit to challenge City and/or Owner's legal authority to enter into this Agreement and/or terminate Development Agreement No. 5. If the County action is against all impacted developments for which the City has lowered the otherwise applicable County fees, then Owner's defense costs herein shall be its pro rata share among all impacted landowners based on a ratio of contribution of the total units owned by ' Owner which are subject to this Agreement compared to the total number of units -11- within the City in which City has lowered the County fees and which are included in such legal challenge. If the County action is only against Owner with respect to this Agreement, then Owner's defense costs shall be one -hundred percent (100%) of the attorneys fees and costs for defense of the litigation. City and Owner shall mutually agree on legal counsel to be retained to defend any such action(s) brought by the County as herein provided. City and Owner each reserve the right to withdraw from the defense of the County litigation in the event the County prevails at the trial level and there is an appeal. If either patty withdraws after the trial and there is an appeal, the remaining party shall pay all the costs and fees associated with the appeal. 11.3 County Litigation Conceming Agreement - Damages. In the event the County prevails in any legal action or other proceeding to challenge, set aside, or enjoin the enforcement of this Agreement and the amendment of Development Agreement No. 5, damages (including the difference in the amount of any Interim Public Facilities Fee paid by Owner to City pursuant to the terms of this Agreement and the amount of the County Development Agreement Fee) shall be the responsibility of Owner. To the extent Owner has paid Interim Public Facilities Fees to City which are adjudicated to lawfully belong to the County, City ' shall pay such sums to County and Owner shall be liable for the payment of the difference between the County Development Agreement Fee reduced by the amount paid by the City. 11.4 County Prevails in Litieation - Severability. In the event the County prevails at the trial court level against the City or the Owner as described in Section 11.2 of this Agreement, the amount of the Interim Public Facilities Fee or the City Public Facilities Fee, as the case may be, shall revert to the amount of the County Development Agreement Fee in effect at the time of entry of the final judgment in favor of the County, or such lesser amount as determined by the court. In the event this Agreement is held to be invalid or unenforceable by a trial court of competent jurisdiction, the provisions set forth in Sections 12.2 and 12.3 of this Agreement shall no longer be enforceable and from the date of the final judgment or ruling of invalidity, Owner shall thereafter pay the County Development Agreement Fee as provided in Section 4.2 of Development Agreement No. 5, or such lesser amount as determined by the court. All other provisions of this Agreement shall remain valid and enforceable notwithstanding the ruling of invalidity. 11.5 Third Party L.itieation Conceming Aeeement. Owner shall indemnify, protect, defend, at its expense— including attorney's fees; and hold -12- ' 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 a third party other than the County. City shall promptly notify Owner of any such claim, action, or proceeding and City shall cooperate in the defense. If City fails 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. 11.6 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, 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 at any 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. 11.7 Release. Except for nondamage remedies, 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 -13- liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement. 11.8 Reservation of Riehts. With respect to Sections 11.1 through 11.7 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. 11.9 Survival. The provisions of this Section 11.1 to 11.9, inclusive, shall survive the termination of this Agreement. 12. Public Benefits Public Improvements and Facilities. 12.1 intent. The patties 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 Interim Public Facilities Fee. (a) In lieu of the County Development Agreement Fee, RSA Fee or City Public Facility Fee, for a period of five (5) years commencing on the Effective Date, Owner shall pay an Interim Public Facilities Fee of Three Thousand Five Hundred and Ninety Dollars ($3,590.00) per dwelling unit inclusive of Street Improvement Fees, Traffic Signaliretion Fees, Fire Protection Fees, Parks and Recreation Fees and Library Fees. The Interim Public Facilities Fee shall be paid as provided in Section 12.3 below. At the conclusion of the five (5) year period, Owner shall either continue to pay the Interim Public Facilities Fee of Three -Thousand -Five -Hundred and Ninety Dollars (53,590.00) per dwelling or such other public facilities fee as the City has then enacted and applied to residential development projects in the City. Owner expressly acknowledges the existence and holding in the case of Kaufman and Broad Central Valley. Inc. v. City of Modesto, (1994), 25 Cal.App.4th 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 -14- ' public facilities fees which are enacted and applied to residential development projects in the City. Such waiver applies to the Project after the first five (5) years of this Agreement. Owner acknowledges and agrees that 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 following the fust five (5) years of the term of this Agreement. 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 any public facilities fee after the first five (5) years of this Agreement, including paying such fees "under protest" pursuant to Government Code Section 66020 et sea., shall constitute a material breach and default under this Agreement entitling the City to summary termination hereof. (b) The fees required by paragraph (a) 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: (i) 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. (ii) Multiply the quotient obtained by the calculation in sub -paragraph (i) above times the fees. (iii) The result of the multiplication obtained in sub- paragraph (ii) 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. In no event shall the fees be less than the fees set forth in paragraph ' (a) of this Section 12.2. -15- ' 12.3 Timin . Collection of any and all Interim Public Facilities Fees and/or City Public Facilities Fees, if any, required to be paid by Owner pursuant to this Agreement shall be deferred until such time as a certificate of occupancy has been obtained for the first production home built on the Property. Thereafter, the Interim Public Facilities Fees and/or City Public Facilities Fees, if any, shall be paid at the time issuance of building permits for each residential unit constructed on the Property. Collection of any and all Interim Public Facilities Fees and/or City Public Facilities Fees paid by the Owner for all home units paid prior to adoption of the Agreement in surplus to those fees contained herein shall be credited to Owner. 12.4 Other Applicable Fees. (a) Owner shall also 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 Interim 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 Steven'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. 12.5 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 perforin 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. 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. -16- (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure. (c) Regulations imposing Development Exaction's; provided, however, that no such subsequently adopted Development Exaction's shall be applicable to development of the Property unless such Development Exaction's are applied uniformly to development throughout the City. (d) Regulations governing construction standards and specifications including without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Fire Code. (e) 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. ' (f) 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. 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. -17- 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 Mao Extension. Pursuant to the provisions of Section 66452.6 of the Government Code, the tentative subdivision map(s) or tentative parcel map(s) (vested or regular) approved as a part of implementing the Development Plan shall be extended to expire at the end of the term of this Agreement. 13.6 Vestine Tentative Mans. 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 66410, et M. 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. 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 Interim Public Facilities 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 -18- ' 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. tions. Except as otherwise provided under the terms of this Agreement, including the payment of the Interim 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 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 Interim Public Facilities Fee and/or the City Public Facilities Fee, as the case may be. 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 borne 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 dis :re ion, 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: -19- I(a) Alter the permitted uses of the Property as a whole, except as provided in Section 9 hereof; or, whole; or, or, (b) Increase the density or intensity of use of the Property as a (c) Increase the maximum height and size of permitted buildings; (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 Minimum Unit Size. Owner agrees that the units to be constructed on the Property shall be a minimum of two thousand (2,000) square ' feet in size. 14.5 Termination of Develooment Agreement No. 5. Both City and 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. 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 fu wish such evidence of good faith compliance as City in the exercise of its discretion may require. -20- 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 Sections 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: (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. -21- 1 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 for claim any damages for breach 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. Attomev's 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 -22- (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 Attn: City Clerk 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: Bramalea California, LLC 23333 Avenida la Caza Coto de Caza, CA 92679 ' ATTN: Emile Hadda, Senior Vice President A patty 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 any 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. 25. Miscellaneous Provisions. 25.1 Recordation of Ataeement. This Agreement and any ' amendment or cancellation thereof shall be recorded with the County Recorder by -23- ' 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 snail 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 4 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 drafting 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 -24- ' 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 4 hereof. 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 benefited thereby of the covenants to be performed hereunder by such benefited 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 -25- interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes 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 parry and each successor in interest during ownership of the Property or any portion thereof. 25.14 Counteroarts. This Agreement may be 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. 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 Agent 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 -26- ' 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. IN WITNESS WHEREOF this Agreement has been executed by the authorized representatives of the parties hereto. "City" Attest: June S. Greek, City Clerk Approved as to form: Peter M. Thorson, City Attorney [Notary Required] City of Temecula By: Karel F. Lindemans, Mayor "Owner" Bramalea California, LLC, a California Limited Liability Company By: Bramalea California Inc., Manager By: Emile K Haddad Senior Vice President _27_ ' ALL PURPOSE ACKNOWLEDGMENT State of California County of On _ appeared 1996, before me, personally [) personally known to me -OR- [] proved to me on the basis of satisfactory evidence be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) act executed the instrument. Witness my hand and official seal. SIGNATURE OF NOTARY I CAPACITY CLAIMED BY SIGNER 0 INDIVIDUAL(S) Q OFFICER(S) (TITLE(S]): [] PARTNER(S) [] ATTORNEY-IN-FACT [] TRUSTEE(S) [] SUBSCRIBING WITNESS [] GUARDIAN/CONSERVATOR [] OTHER: Chairperson SIGNER IS REPRESENTING: Name of person(s) or entity(ies) -28- IEXHIBIT A EXISTING DEVELOPMENT APPROVALS General Plan - Low -Medium Density Residential Specific Plan - County of Riverside Ordinance No. 460, Specific Plan No. 199 (Margarita Village) Planning Application No. - PA94-0078, PA94-0079 and PA94-0080 Land Divisions - Final Tract Map No. 23100-1 Final Tract Map No. 23101-2 Tentative Tract Map No. 23100 Tentative Tract Map No. 23101 Tentative Tract Map No. 23103 Tentative Tract Map No. 28503 EXISTING LAND USE REGULATIONS General Plan Land Use designation is Low -Medium Density Residential. Specific Plan 199 (Margarita Village) IEXHIBIT C LEGAL DESCRIPTION THE LAND IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE. CITY OF TEMECULA AND IS DESCRIBED AS FOLLOWS: PARCEL A: LOTS 35 THROUGH 38, INCLUSIVE, 60 THROUGH 63, INCLUSIVE, AND LOT 75 OF TRACT 23100-I, AS SHOWN BY MAP ON FILE IN BOOK 214 PAGES 5 THROUGH I I OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; EXCEPTING THEREFROM ALL MINERAL, OIL AND GAS RIGHTS BELOW THE DEPTH OF 500.00 FEET BELOW THE SURFACE OF SAID LAND WITHOUT THE RIGHT OF SURFACE ENTRY AS RESERVED BY KAISER DEVELOPMENT COMPANY, A CALIFORNIA CORPORATION, IN DEED RECORDED NOVEMBER 13, 1987 AS INSTRUMENT NO. 326397 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL B LOTS 8 THROUGH 55, INCLUSIVE, AND LOT 109, ALL OF TRACT No. 23101-2, IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN PER MAP ON FILE IN BOOK 228 OF MAPS, PAGES 15 THROUGH 21, INCLUSIVE, OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; EXCEPTING THEREFROM ALL MINERAL, OIL AND GAS RIGHTS BELOW THE DEPTH OF 500.00 FEET BELOW THE SURFACE OF SAID LAND WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED BY KAISER DEVELOPMENT COMPANY, A CALIFORNIA CORPORATION, IN DEED RECORDED NOVEMBER 13, 1987, AS INSTRUMENT No. 326397, OF OFFICIAL RECORDS OF SAID COUNTY, AND AS DEEDED TO MIDLAND INVESTMENT CORPORATION IN DOCUMENT RECORDED APRIL 15, 1988, AS INSTRUMENT No. 99500, OF OFFICIAL RECORDS OF SAID COUNTY. I C -1 n CHARDONNAY HILLS PARCEL C PARCEL 1 OF PARCEL MAP No. 22554, IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN PER MAP ON FILE IN BOOK 147 OF PARCEL MAPS, PAGES 94 THROUGH 98, INCLUSIVE, OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; TOGETHER WITH A PORTION OF THE PROPERTY, IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED IN "PARCEL A" OF THE DOCUMENT RECORDED MARCH 25, 1970, AS INSTRUMENT No. 27617 (SAID INSTRUMENT BEING REFERENCED AS "INSTRUMENT No. 27167" IN THE HEREINBELOW -MENTIONED DEED), OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, SAID PORTION BEING ALL THAT PROPERTY CONVEYED BY DEED RECORDED MAY 11, 1994, AS INSTRUMENT No. 193985, OF OFFICIAL RECORDS OF SAID COUNTY; TOGETHER WITH A PORTION OF THE PROPERTY, IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED IN THE DOCUMENT RECORDED APRIL 11, 1989, AS INSTRUMENT No. 113880, OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, SAID PORTION BEING ALL THAT PROPERTY CONVEYED BY DEED RECORDED APRIL 23, 1990, AS INSTRUMENT No. 146747, OF OFFICIAL RECORDS OF SAID COUNTY; EXCEPTING THEREFROM ALL OF TRACT No. 23100-I, AS SHOWN PER MAP ON FILE IN BOOK 214 OF MAPS, PAGES 5 THROUGH 11, INCLUSIVE, OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM ALL OF TRACT No. 23100-2, AS SHOWN PER MAP ON FILE IN BOOK 214 OF MAPS, PAGES 12 THROUGH 15, INCLUSIVE, OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM ALL OF TRACT No. 23100-3, AS SHOWN PER MAP ON FILE IN BOOK 222 OF MAPS, PAGES 44 THROUGH 49, INCLUSIVE OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM ALL OF TRACT No. 23101-1, AS SHOWN PER MAP ON FILE IN BOOK 218 OF MAPS, PAGES 31 THROUGH 34, INCLUSIVE, OF OFFICIAL RECORDS OF SAID COUNTY; C-2 I CHARDONNAY HILLS ALSO EXCEPTING THEREFROM ALL OF TRACT No. 23101-2, AS SHOWN PER MAP ON FILE IN BOOK 228 OF MAPS, PAGES 15 THROUGH 2I, INCLUSIVE, OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM ALL OF TRACT No. 23100-4, AS SHOWN PER MAP ON FILE IN BOOK 249 OF MAPS, PAGES 57 THROUGH 60, INCLUSIVE, OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM ALL OF TRACT No. 23101-3, AS SHOWN PER MAP ON FILE IN BOOK 249 OF MAPS, PAGES 61 AND 62, OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM ALL OF TRACT No. 23103-1, AS SHOWN PER MAP ON FILE IN BOOK 252 OF MAPS, PAGES 29 THROUGH 31, INCLUSIVE, OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM THOSE PORTIONS CONVEYED BY DEEDS RECORDED NOVEMBER 17, 1989, AS INSTRUMENT Nos. 403924, 403925, 403926, AND 403927, ALL OF OFFICIAL RECORDS OF SAID COUNTY; ' ALSO EXCEPTING THEREFROM THOSE PORTIONS CONVEYED BY DEEDS RECORDED OCTOBER 13, 1994, AS INSTRUMENT Nos. 394940, 394941, AND 394942, ALL OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED IN "PARCEL A" OF THE GRANT DEED TO THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA RECORDED DECEMBER 13, 1967, AS INSTRUMENT No. 109720, OF OFFICIAL RECORDS OF SAID COUNTY; ALSO EXCEPTING THEREFROM ALL MINERAL, OIL, AND GAS RIGHTS BELOW THE DEPTH OF 500.00 FEET BELOW THE SURFACE OF SAID LAND WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED BY KAISER DEVELOPMENT COMPANY, A CALIFORNIA CORPORATION, IN DEED RECORDED NOVEMBER 0, 1987. AS INSTRUMENT No. 326397, OF OFFICIAL RECORDS OF SAID COUNTY, AND AS DEEDED TO MIDLAND INVESTMENT CORPORATION IN DOCUMENT RECORDED APRIL 15, 1988, AS INSTRUMENT No. 99500, OF OFFICIAL RECORDS OF SAID COUNTY. I C -3 CHARDONNAY HILLS PARCEL D TENTATIVE TRACT NO. 28503 BEING A SUBDIVISION OF THE FOLLOWING: PORTION OF PARCEL I OF PARCEL MAP NO. 22554, AS SHOWN BY MAP ON FILE IN BOOK 147 PAGE(S) 94 THROUGH 98, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID PARCEL MAP ON THE CENTERLINE OF "LA SERENA WAY" DESCRIBED ON SAID PARCEL MAP AS "NORTH 710 08' 38" EAST 1124.10 FEET'; THENCE ALONG SAID CERTERLINE SOUTH 710 08' 38" WEST 1124.10 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 2000.00 FEET; THENCE CONTINUING ALONG SAID CENTERLINE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 70 40' 53" AN ARC DISTANCE OF 268.13 FEET TO AN ANGLE PO[IJT IN THE BOUNDARY OF SAID PARCEL 1; THENCE LEAVING SAID CENTERLINE NON -TANGENT FROM SAID CURVE ALONG SAID BOUNDARY OF PARCEL I NORTH 2632' 15" WEST 472. 10 FEET; THENCE CONTINUING ALONG SAID BOUNDARY THE FOLLOWING SEVEN COURSES NORTH 63° 49'07" EAST 112.13 FEET, NORTH 580 41' 1 I" EAST 389.65 FEET, NORTH 47° 43' 00" EAST 150.14 FEET, NORTH 400 12' 06" EAST 149.88 FEET, NORTH 310 13' 28" EAST 149.82 FEET, NORTH 220 38' 36" EAST 141.22 FEET, AND SOUTH 47° 40' 42" EAST 1012.35 FEET TO THE POINT OF BEGINNING; EXCEPTING THEREFROM THAT PORTION LYING WITHIN THE FEE GRANT TO THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA PER GRANT DEED RECORDED ON DECEMBER 13, 1967 AS INSTRUMENT No. 109720 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; C-4 EXHIBIT D REQUEST FOR NOTICE OF DEFAULT UNDER DEVELOPMENT AGREEMENT Development Agreement: Date: - Amendment and Restatement of Development Agreement Specific Plan No. 180, Rancho Highlands Planning Application No. To: City of Clerk and Planning Director, City of Temecula Pursuant to Section 6(b) and (c) of the above -referenced Amendment and Restatement of Development Agreement, request is hereby made by as Mortgagee for the property (or portion thereof) to receive copies of any Notice of Default issued by City against Owner in accordance with the terms and conditions of such Amendment and Restatement of Development ' Agreement. Copies of any such Notices should be mailed to the following address: (Mortgagee) (Person/Department) (Address) (City/State/Zip) (Telephone No.) A copy of this Notice should be filed with the project file to insure proper and timely notice is given. Under the terms of the Amendment and Restatement of Development Agreement, as Mortgagee is entitled to receive copies of any Notice of Default within ten (10) days of sending any such Notice to Owner. Failure to send any such Notice may have serious legal consequences for the City. This request is to remain in effect until revoked by as Mortgagee or the Amendment and Restatement of Development Agreement is Terminated. u The person executing this document on behalf of the Mortgagee warrants and represents that the entity he/she represents is a bona fide Mortgagee of the property and is entitled to receive copies of Notices of Default under the Amendment and Restatement of Development Agreement. The undersigned declares the above information is true and correct under the penalty of perjury under the laws of the State of California. Dated: , 1996 Mortgagee By: (signature) (printed name) Its: (title) (Notary required) This Notice is to be sent to both the City Clerk and Planning Director for the City of Temecula at P.O. Box 9033, Temecula, Ca 925989-9033 or such other location as Temecula City Hall may be located in the future.