HomeMy WebLinkAbout083195 CC/RDA Jnt. AgendaAGENDA
TEMECULA CITY COUNCIL
and
TEMECULA REDEVELOPMENT AGENCY
SPECIAL JOINT MEETING
RANCHO CALIFORNIA WATER DISTRICT BOARD MEETING ROOM
42135 WINCHESTER ROAD, TEMECULA
AUGUST 31, 1995- 7:00 PM
CALL TO ORDER:
Agency President Ronald J. Parks presiding
ROLL CALL:
Birdsall, Lindemans, Parks, Roberts, Stone
PUBLIC COMMENTS
A total of 30 minutes is provided so members of the public can address the Council on
items that are not listed on the Agenda. Speakers are limited to two (2) minutes each.
If you desire to speak to the Council about an item not listed on the Agenda a pink
"Request To Speak" form should be filled out and filed with the City Clerk.
When you are called to speak, please come forward and state your name and address.
PUBLIC HEARING
Owner Particioation Agreement By and Between the Redevelooment Aoencv of the City
of Temecula and T.Z.B.G., Inc.
RECOMMENDATION:
1.1 That the City Council adopt a resolution entitled:
RESOLUTION NO. 95-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA
APPROVINGTHATCERTAINAGREEMENTENTITLED"OWNER PARTICIPATION
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF TEMECULA AND T.Z.B.G., INC., A CALIFORNIA CORPORATION" DATED
AS OF AUGUST 31, 1995
Agerids/061696 I 08/28/86
1.2 That the Temecula Redevelopment Agency adopt a resolution entitled:
RESOLUTION NO. RDA 95-
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE REDEVELOPMENT
AGENCY OF THE CITY OF TEMECULA APPROVING THAT CERTAIN
AGREEMENT ENTITLED "OWNER PARTICIPATION AGREEMENT BY AND
'BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA AND
T,Z.B.G., INC., A CALIFORNIA CORPORATION" DATED AS OF AUGUST 31,
1995
ADJOURNMENT
Next regular meeting: September 12, 1995, 7:00 PM, Community Recreation Center,
30875 Rancho Vista Road, Temecula, California
Agend~061596 2 08/28/96
Item No.
1
APPROVAL
CITY ATTORNEY
FINANCE OFFICER
CITY MANAGER
CITY OF TEMECULA
AGENDA REPORT
TO:
FROM:
DATE:
SUBJECT:
City Council and Redevelopment Agency
Ronald E. Bradley, Executive Director ~/~
August 31, 1995
Owner Participation Agreement By and Between the Redevelopment Agency of
the City of Temecula and T.Z.B.G., Inc.
RECOMMENDATION:
1. That the City Council adopt a resolution entitled:
RESOLUTION NO. 95~_._
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA
APPROVING THAT CERTAIN AGREEMENT ENTITLED "OWNER PARTI CI PATI ON
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF TEMECULA AND T.Z.B.G., INC., A CALIFORNIA CORPORATION" DATED
AS OF AUGUST 31, 1995
2. That the Temecula Redevelopment Agency adopt a resolution entitled:
RESOLUTION N0. RDA 95-__
A RESOLUTON OF THE BOARD OF DIRECTORS OF THE REDEVELOPMENT
AGENCY OF THE CITY OF TEMECULA APPROVING THAT CERTAIN
AGREEMENT ENTITLED 'OWNER PARTICIPATION AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA AND
T.Z.B.G., INC., A CALIFORNIA CORPORATION" DATED AS OF AUGUST 31,
1995
BACKGROUND:
The Owner Participation Agreement (OPA) proposed for consideration is the product of
negotiations between the Redevelopment Agency of the City of Temecula (Agency) and
T.Z.B.G., Inc. (TZBG) under an amended and restated Memorandum of Understanding (MOU)
executed between the parties on January 31, 1995.
AGENDA REPORT:
August 31, 1995
Page 2
OPA - City of Temecula, Temecula Redevelopment Agency and TZBG
The subject OPA incorporates in final form the terms end conditions which were outlined by
the MOU and summarized in the attached report to City Council/Redevelopment Agency dated
January 31, 1995 with certain exceptions.
OWNER PARTICIPATION AGREEMENT:
The subject OPA is completely summarized in the attached "Summary Report" which outlines
the major responsibilities of TZBG and the Agency with respect to the Old Town Entertainment
Project and the construction of public improvements. The most important difference between
the proposed OPA and the adopted MOU rests with the responsibility for financing the Old
Town Entertainment Project. While the MOU called for the City and/or Redevelopment Agency
to act as "conduit" issuer of tax exempt bonds for the Old Town Entertainment Project, the
final OPA places full responsibility for the financing of the Old Town Entertainment Project on
TZBG. Neither the City nor the Agency shall assist in any way with the financing of the
Entertainment Facilities through "conduit financing" or any other means.
Another significant change between the MOU and the final OPA has occurred with respect to
the construction of the public improvements proposed to support the Old Town area in general
and the Entertainment Facilities specifically. These public improvements, estimated to cost
$5,987,700, are those which have been programmed in the City's adopted Capital
Improvement Program for FY 95-96 and for which the Redevelopment Agency has available
funds on hand. Under the terms of the OPA, TZBG shall assume responsibilities for the land
acquisition, design and construction of these public improvements and take full financial risk
for any cost overruns or expenses incurred in building the public improvements in excess of
the approved budget of $5,987,700. The public improvements must be bid in accordance
with the provisions of the Public Contract Code and applicable laws; TZBG shall also pay
prevailing wages in accordance with applicable laws. Should the actual bid and construction -.
management fees result in costs less than the budgeted amount, TZBG must reimburse the
Agency the difference between the actual cost of the public improvements and the budgeted
amount.
The Western Bypass Corridor will be financed by a benefit assessment district; TZBG has
agreed to waive any objections to the formation of the assessment district. No existing retail
businesses or residents within the Old Town Specific Plan Area will be included in the benefit
assessment district.
Another change from the previously adopted MOU is the inclusion in the Project of an open
space element, the "Old Town Festival Square." The location and specific size of the Old
Town Festival Square has not yet been determined, but must be approved by the agency. The
Old Town Festival Square is proposed to be used for special events such as picnics, receptions
and similar activities, landscaped rest areas, and/or revenue generating activities such as wine
festival shows and exhibits. The area must be available for use without admission at least ten
hours per week in accordance with a schedule to be approved by the Agency and TZBG. In
the event City right-of-way is vacated to comprise a portion of the site for the Old Town
Festival Square, Agency has agreed to acquire the vacated street right-of-way from the City
AGENDA REPORT:
August 31, 1995
Page 3
OPA - City of Temecula, Temecula Redevelopment Agency and TZBG
and lease an area not to exceed 8,000 square feet to TZBG at an annual rent of $1.00 per
year for thirty-five years. The Old Town Festival Square will provide the Old Town area with
a permanent open space element which will be provided and maintained by TZBG.
Other terms and conditions of the OPA parallel those that were included in the amended and
restated MOU of January 31, 1995 and are more fully described in the attached summary.
SCHEDULE FOR DEVELOPMENT:
The Agency has agreed to pursue the formation of an assessment district to fund the cost of
planned acquisition and construction of the Western Bypass Corridor on or before January 10,
1996 with the issuance of bonds on or before March 1, 1996. The proposed construction
schedule for the Entertainment Facilities will depend on TZBG's ability to obtain necessary
financing. The final dates to initiate construction of the Entertainment Facilities and public
improvements has not been determined at this time.
FISCAL IMPACT:
A total of $313,059 has been expended to date by the City/Redevelopment Agency to study
the feasibility of the Project. Costs are still being incurred for legal and consulting fees in
connection with the Project. The OPA requires TZBG to reimburse all costs of the City and
Agency related to this Project with the exception of City and Agency staff time.
Funds for the public improvements to support the Project in the amount of $6,487,700 are
budgeted in the City's FY 95-96 Capital Improvement Program.
RESOLUTION NO. 95-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF TEMECULA APPROVING THAT CERTAIN
AGREEMENT EN'ITrLED "OWNER PARTICIPATION
AGREEMENT BY AND BETWEEN THE
RF~DEVELOPIV~NT AGENCY OF THE CITY OF
TEMECULA AND T.Z.B.G., INC., A CALIFORNIA
CORPORATION*' DATED AS OF AUGUST 31, 1995
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY
RESOLVE AS FOLLOWS:
Section 1. The City Council of the City of Temecula does hereby find,
determine and declare as follows:
a. The project proposed by Participant, T.Z.B.G., Inc., is generally
known as the Old Town Entertainment Center Project ("Project") and will generally
consist of an Open House, Wild West Arena, cabaret/playhouse theaters, "quick
draw" and indoor/outdoor exhibitions, restaurants, theme-related retail, Old Town
Festival Square, and parking facilities as more specifically described in Section 2.1 of
the Owner Participation Agreement.
b. The Project will be located within the Tourist Core Retail Area as
designated on the Old Town Specific Plan and within the Westside Area as designated
in the Westside Specific Plan.
c. Prior to the consideration and adoption of this Resolution and approval
of the Agreement by the Board of Directors of the Redevelopmerit Agency of the City:
of Temecula, both the City Council of the City of Temecula and the Board of
Directors of the Redevelopmerit Agency of the City of Temecula held a duly noticed
joint public hearing on August 31, 1995 to consider the proposed Owner Participation
Agreement. The hearing was duly noticed pursuant to legal advertisements in a
newspaper of general circulation within the community once per week for two
successive weeks prior to the hearing pursuant to Government Code Section 6066.
The Agency also prepared a "Summary Report of the Owner Participation Agreement
by and between the Redevelopment Agency of the City of Temecuia and T.Z.B.G.,
Inc., a California Corporation," dated August 15, 1995, which report was prepared in
accordance with the provisions of Health and Safety Code Section 33334 and was on
file in the City Clerk's Office of the City of Temecula and available for public
inspection at the time of ftrst publication of the Notice of Joint Public Hearing.
2:133580.1 -1-
d. Completing the development of the Project and the redevelopment of
the Site pursuant to the Agreement will assist in the elimination of blight in the
Project Area of the Redevelopmerit Plan of the Temecula Redevelopmerit Project Area
1988-1 and is consistent with the Implementation Plan adopted by the Agency for the
Project Area in that the Project will: (1) provide a broad range of public service
infrastructure improvements to induce private investment in the Old Town Area; (2)
promote the preservation and enhancement of the Old Town Area in accordance with
the goals and objectives of the Old Town Specific Plan; (3) promote the expansion of
the Project Area's commercial base and local employment opportunities to provide
jobs for the area; (4) assist in the continued development of the Old Town Area as a
tourist destination and enhancement of the tourist industry as a major force within the
community; (5) encourage and provide for development of vacant properties and
replacement of the older non-historical retail buildings which typify the blight
conditions which exist in the Project Area. Completing the redevelopmerit of the Site
as proposed will also assist in eliminating blight in the Project Area by generating
new employment opportunities and development opportunities in the Project Area.
e. The Agreement pertains to and affects the ability of the Agency to
finance its statutory obligations and for all parties to finance and carry out the
purposes of this Agreement and the goals of the Plan and is intended to be a contract
within the meaning of Government Code Section 53511.
f. The City Council has carefully considered all of the written information
and documents presented to it prior to and during the public hearing as well as the
oral comments received at the public hearing.
Section 2. Section 4.2 of the Agreement provides for the payment by the
Agency of certain funds to Participant to construct Public Improvements consisting of: (1)
Renovation and expansion of the Old Town First Street Bridge; (2) Old Town Gateway
Landscaping; (3) Old Town Demonstration Block, including the Front Street
repalrs/upgrades, Front Street reconstruction, miscellaneous street improvements; (4) Old
Town Sewer Improvements; (5) Old Town Water Improvements; and (6) Old Town Storm
Drain Improvements, as more particularly defined in Section 4.2. Section 4.2 also provides
that the Agency itself will provide the following Public Improvements: (1) Main Street
Bridge improvements, at its discretion; (2) Sixth Street Parking improvements; and (3) Main
Street facades and non-conforming sign removal as more particularly defined in Section 4.2.
(For the purposes of this Resolution, all of the designated public improvements will be
referred to collectively as "Public Improvements. ") With respect to the Agency's assistance
for the Public Improvements as described in the Agreement, the City Council hereby finds,
determines and declares that:
a. Providing for such Public Improvements is necessary to effectuate the
purposes of the Redevelopment Plan for the reasons set forth in Section 1 .d. and for
the reasons set forth in the Plan and accompanying reports, which specifically
LA. X2:133580.1 -2-
contemplate the construction of such Public Improvements, as well as the findings
made by the Board of Supervisors in adopting the Redevelopmerit Plan and
subsequently validated in a court challenge.
b. The Public Improvements are of direct benefit to the Project Area and
the immediate area in which the Project is located for the reasons set forth in Section
1.d. and for the reasons set forth in the Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopmerit Plan and
subsequently validated in a court challenge.
c. No other reasonable means of financing the Public Improvements are
available to the community to finance the Public Improvements based upon the
reasons set forth in the Redevelopmerit Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopment Plan and
subsequently validated in a court challenge.
d. The payment of funds for the Public Improvements will assist in the
elimination of one or more of the blighting conditions inside the Project Area and is
consistent with the Implementation Plan adopted for the Project Area for the reasons
set forth in Section 1.d. and for the reasons set forth in the Plan and accompanying
reports, which specifically contemplate the construction of such Public Improvements,
as well as the findings made by the Board of Supervisors in adopting the
Redevelopment Plan and subsequen~y validated in a court challenge.
Section 3. It is anticipated that a portion of the Old Town Festival Square and
the Opera House will be situated on a street right-of-way which is owned by the City as the
Square is anticipated to be located between buildings on the parcels comprising the Site and
the Opera House will be situated on more than one parcel. It is also anticipated that the City
will vacate such right-of-way upon the purchase of the surrounding parcels by the
Participant. Pursuant to Section 3.7 of the Agreement, in the event such property: does not
belong to the Participant by virtue of the vacation, Agency agrees to acquire such property
from the City in an area not to exceed eight thousand (8,000) square feet and lease it to the
Participant at the annual rent of one dollar ($1.00) per year for fifty (:50) years, in
accordance with all applicable laws. The City Council hereby consents to the leases and
finds, determines and declares that, as defined in Health and Safety Code Section 33433, the
fair reuse rental value of such right-of-way property, following vacation and subject to the
limitations of this Agreement, is the rental value described in this Section and further finds,
determines and declares that the lease as described in this Section of the Agreement will
assist in the elimination of blight within the Project Area and is consistent with the
Implementation Plan adopted for the Project Area for the reasons set forth in Section 1 .d. of
this Resolution.
,2:133580.1
-3-
Section 4. The City Council hereby finds and determines that based upon the
prior Environmental Impact Reports prepared for this Project and the findings made in this
Section, no further environmental review is required for the Project. On June 13, 1995, the
City Council of the City of Temecula adopted Resolution No. 95-49 entitled 'A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA CERTIFYING
PLANNING APPLICATION NO. 95-43031 (FINAL ENVIRONMI~NTAL IMPACT
REPORT) ADOPTING FINDINGS OF FACT AND STATElV~NT OF OVERRIDING
CONSIDERATION AND APPROVING THE MITIGATION MONITORING PROGRAM
ON PROPERTY GENERALLY LOCATED WEST OF INTERSTATE 15, EAST OF THE
CITY'S WESTERN BORDER, SOUTH OF RANCHO CALIFORNIA ROAD AND
NORTH OF THE SANTA MARGARiTA R/VER" certifying the Environmental Impact
Report for the Project. Additionally, in adopting the Redevelopment Plan, the Board of
Supervisors approved and certified an Environmental Impact Report for the Redevelopment
Plan which specifically addressed the environmental impacts of the Public Improvements
which were also described in the Redevelopment Plan. Therefore, pursuant to 14 Cal.
Admin. Code Section 15180, no further environmental review is required on this Project
unless required by 14 Cat. Admin. Code Sections 15161 or 15163. Neither a subsequent
EIR nor a Supplemental EIR is required for the Project based on the following findings of
the Agency:
a. All of the private elements of the Project and the Public Improvements
were contemplated and fully and properly analyzed in the EIR certified and approved
by the City Council on June 13, 1995 and all of the Public Improvements were also
contemplated and analyzed in the EIR certified and approved as pan of the approval
of the Redevelopment Plan.
b. There have been no subsequent changes to the Project since hne 13,
1995 which would require major revisions of the previous EIR due to the involvement
of new significant environmental effects or a substantial increase in the severity of
previously identified significant effects.
c. Substantial changes have not occurred with respect to the circumstances
under which the Project is undertaken which will require major revisions of the
previous EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified significant effects.
d. There is no new information since the certification of the previous FJR
which would show or tend to show that the Project might have one or more
significant effects not discussed in the previous EIR.
e. There is no new information since the certification of the previous EIR
which would show or tend to show that significant effects previously examined might
be substantially more severe than shown in the previous EIR.
LAX2:I33580.1
4w
f. There is n._Q new information since the certification of the previous
which would show or tend to show that mitigation measures or alternatives previously
found not to be feasible would in fact be feasible and would substantially reduce one
or more significant effects of the Project.
g. There is no new information since the certification of the previous EIR
which would show or tend to show that mitigation measures or alternatives which are
considerably different from those analyzed in the previous FJR would substantially
reduce one or more significant effects on the environment.
Section 5. The City Council of the City of Temecula hereby consents to and
approves of the Agency entering into that certain Agreement entitled ' Owner Participation
Agreement by and between the Re, development Agency of the City of Temecula and
T.Z.B.G., Inc., A California Corporation," dated as of August 31, 1995, in substantially the
form attached hereto as Exhibit A.
Section 6. The City Clerk shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Temecula on the 31st day of August, 1995.
ATTEST:
Karel Lindemans
Mayor Pro Tem
June S. Greek, CMC
City Clerk
[SEAL]
,C2: 133580.
such term shall include any other lawful successors in inUn'est and assigns of Participant and
any assignees approved by the Agency.
D. Agency may terminate this Agreement pursuant to Section 6.7 if Participant
violates the t~'ms of this Section.
Section 1.6 Contract Docnmellts
The Contract Documents which are part of this Agreement, and each of which are
· incorporated herein by this reference, are as follows:
Exhibit No. 1
Exhibit No. 2
Exhibit No. 3
Exhibit No. 4
Site Map
Legal Description of Site
Description of Public Improvements
Form of Certificate of Completion
ARTICL~ H
DEV~ O~ OF THE SrrE
Section 2.1 Scope of Develolnnent
A. The Project consists of two components - the 'Entertainment Facilities' and
the "Public Improvements. *
1. As used in this Agreement the *Entertainment Facilities* means the
land acquisition, design and construction of the following: (1) The Opera House; ('2)
Wild West Arena; (3) virtual reality theaters; (4) cabaret/phyhouse theaters; (5)
"quick draw" and indoor/outdoor exhibitions; (6) restaurants; C/) theme related retail;
(8) Old Town Festival Square, and (9) parking f~-'ili~. These descriptions are for
the purpose of defining those portions of the Project for which Participant shall have
responsibility for land acquisition, financing, design and construction as more
specifically set forth in this Agreement. Participant shall have the fight to rename
these components of the Project for marketing purposes. The parties shall continue to
negotiate to determine the extent to which the parking facilities may be made ave_liable
to the general public.
2. As used in this Agreement the 'Public Improvements' means the land
acquisition, design and the construction, expansion or renovation of the following:
(1) Renovation and expansion of the Old Town First Street Bridge; (2) Old Town
Gateway Landscaping; (3) Old Town Demonstration Block, including the Front
Street repai~upgndes, Front Street reconstruction, miSCe-llnneOus Stn~
improvements; (4) Old Town Sewer Improvements; (5) Old Town Water
Improvements; and (6) Old Town Storm drain improvements.
RESOLUTION NO. RDA
A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE REDEVELOP1ViF~NT AGENCY OF THE CITY OF
TEMECULA APPROVING THAT CERTAIN
AGREEMF_,NT ENTITLED "OWNER PARTICIPATION
AGI~F~EMENT BY AND BETWEEN THE
ItEDEVELOP1V~NT AGENCY OF THE CITY OF
TEMECULA AND T.Z.B.G., INC., A CALWORNIA
CORPORATION" DATED AS OF AUGUST 31, 1995
THE BOARD OF DIRECTORS OF THE REDEVELOP1VIENT AGENCY
OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. The Board of Directors of the Redevelopment Agency of the City
of Temecula does hereby fmd, determine and declare as follows:
a. The project proposed by Participant, T.Z.B.G., Inc., is generally
known as the Old Town Entertainment Center Project ("Project") and will generally.
consist of an Opera House, Wild West Arena, cabaret/playhouse theaters, "quick
draw" and indoor/outdoor exhibitions, restaurants, theme-related retail, Old Town
Festival Square, and parking facilities as more specifically described in Section 2.1 of
the Owner Participation Agreement.
b. The Project will be located within the Tourist Core Retail Area as
designated on the Old Town Specific Plan and within the Westside Area as designated
in the Westside Specific Plan.
c. Prior to the consideration and adoption of this Resolution, both the City
Council of the City of Temecula and the Board of Directors of the Redevelopmerit
Agency of the City of Temecula held a duly noticed joint public hearing on August
31, 1995 to consider the proposed Owner Participation Agreement. The hearing was
duly noticed pursuant to legal advertisements in a newspaper of general circulation
within the community once per week for two successive weeks prior to the hearing
pursuant to Government Code Section 6066. The Agency also prepared a "Summary
Report of the Owner Participation Agreement by and between the Redevelopment
Agency of the City of Temecula and T.Z.B.G., Inc., a California Corporation," dated
August 15, 1995, which report was prepared in accordance with the provisions of
Health and Safety Code Section 33334 and was on file in the City Clerk's Office of
the City of Temecula and available for public inspection at the time of first
publication of the Notice of Joint Public Hearing.
3.:133579.1 -1-
Section 1.2 The Redevelopmerit Plan
The Redevciopment Phn ("Plan ") was approved by Ordinance No. 658 of the Board
of Supervison of Rivehide County on July 12, 1988, prior to hcorpomfion of the City of
Temec-ln~ Pursuant to City Ordinance No. 91-11, which became effective May 9, 1991,
and City Ordinance No. 91-15, which became effective April 9, 1991, the City approved the
Plan. Said Ordinances had the effect of adopting the Plan and transf~g jurisdiction over
said Plan to the Agency, as of July 1, 1991. Pursuant to Ordinance No. 93-04 and 94-03,
Ordinance No. 91-11 was codified at Section 8.04.010 of the Temecula Municipal Code.
The Plan was.mended by Ordinance No. 94-33, adopted on December 20, 1994.
Section 1.3 The Site
A. The real property to be redeveloped punuant to this Agreement (the "Site")
consists of two components. The first component of the Site consists of the Old Town Area
which is that area designated as "Tourist Core Retail" on Exhibit 1, Proposed Land Use
Districts Map, of the Old Town Specific Plan, approved by Ordinance No. 94-05 of the City
Council of the City of Temecula on February 22, 1994, which is on file in the Office of the
City Clerk. The second component of the Site is the Westside Area which is generally
located southwesterly of the Old Town Area and which is specifically described on the Study
Area Map, of the Westside Specific Plan, appwved by Ordinance No. 95-08 of the City
Council of the City of Temeatla on June 27, 1995, which is on file in the Office of the City
Clerk.
B. The Site consists of those Properties within the component areas owned by the
Participant and which will be specifically described and depicted on Exhibit No. I and
Exhibit No. 2. The Participant currenfiy has an option to purchase certain properties in the
Old Town Area which will comprise a portion of the Site when the acquisitions are complete.
Both parties acknowledge that the terms of this Agreement shnll apply only to such properties
as are acquired by Participant. The Executive Director is hereby authorized and directed to
enter into amendments to this Owner Participation Agreement which add specific properties
to the component areas of the Site which Participant may subsequently acquire.
C. The Old Town Area of the Site is located within the Project Area. The
Agency finds that the Westside Area of the Site is located just outside the Projea .Area and
will be physically and economically integrated into that portion of the Project located on the
Old Town Area of the Site. The Westside Area will be within Survey Area for possible
inclusion into the Project Area
Section 1.4 Parties to the A~eement
A. The Agency
The Agency is a public body, corporate and politic, exercising governmental functions
and powers and organized and existing under the Community Redevelopment Law of the
State of California (Section 33000, et l~-, Health and Safety Code; hereafi~ "Act"). The
principal office of the Agency is located at 43174 Bn_~ness Park Drive, Temecula, California
92590.
I.AX~126427.9 Find: Aulu~ IS, 1~95
determines and declares that:
a. Providing for such Public Improvements is necessary to effectuate the
purposes of the Redevelopmerit Plan for the reasons set forth in Section 1.d. and for
the reasons set forth in the Plan and accompanying reports, which specifically
contemplate the construction of such Public Improvements, as well as the findings
made bY the Board of Supervisors in adopting the Redevelopmerit Plan and
subsequently validated in a court challenge.
b. The Public Improvements are of direct benefit to the Project Area and
the immediate area in which the Project is locate~ for the reasons set forth in Section
1.d. and for the reasons set forth in the Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopmerit Plan and
subsequently validated in a court challenge. ,
c. No other reasonable means of financing the Public Improvements are
available to the community to finance the Public Improvements based upon the
reasons set forth in the Redevelopment Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopmerit Plan and.
subsequen~y validated in a court challenge.
d. The payment of funds for the Public Improvements will assist in the
elimination of one or more of the blighting conditions inside the Project Area and is
consistent with the Implementation Plan adopted for the Project Area for the reasons
set forth in Section 1.d. and for the reasons set forth in the Plan and accompanyhg
reports, which specifically contemplate the construction of such Public Improvements,
as well as the findings made by the Board of Supervisors in adopting the
Redevelopment Plan and subsequently validated in a court challenge.
Section 3, It is anticipated that a potion of the Old Town Festival Square and
the Open House will be situated on a street right-of-way which is owned by the City as the
Square is anticipated to be located between buildings on the parcels comprising the Site and
the Opera House will be situated on more than one parcel. It is also anticipated that the City
will vacate such right-of-way upon the purchase of the surrounding parcels by the
Participant. Pursuant to Section 3.7 of the Agreement, in the event such property does not
belong to the Participant by virtue of the vacation, Agency agrees to acquire such property
from the City in an area not to exceed eight thousand (8,000) square feet and lease it to the
Participant at the annual rent of one dollar ($1.00) per year for fifty (50) years, in
accordance with all applicable laws. The Board of Directors hereby finds, determines and
declares that, as defined in Health and Safety Code Section 33433, the fair reuse rental value
of such right-of-way property, following vacation and subject to the limitations of this
Agreement, is the rental value described in this Section and further finds, determines and
· 133579.1 '3-
RECORDED AT REQUEST OF
AND WI~-N RECORDED
RETURN TO:
]une Greek
Secretary
Redeveloprnent Agency of the
City of Temecula
43174 Business Park Drive
Temecula, California 92590
EXF~MlrF FROM RECORDER'S FEES
pursuant to Government Code
Sections 6103 and 27383
OWNER PARTICIPATION AG~
by and between the
RI~DEV!~J~O~ AGENCY OF THE CITY OF TEMECULA
and
T.Z.B.G., .INC.
A California Corporation
DATED AUGUST 31, 1995
OLD TOWN ENTERTAINMF~NT CENTER PROJECT
TEMECULA I~F-I~EVELOPMENT
PROJECT AREA 19884
LAX2:126427.9 Fing: AuguS L~, 1995
e. There is no new information since the certification of the previous EIR
which would show or tend to show that significant effects previously examined might
be substantially more severe than shown in the previous FXR.
There is no new information since the certification of the previous F~IR
which would show or tend to show that mitigation measures or alternatives previously
found not to be feasible would in fact be feasible and would substantially reduce one
or more significant effects of the Project.
g. There is no new information since the certification of the previous EIR
which would show or tend to show that mitigation measures or alternatives which are
considerably different from those analyzed in the previous EIR would substantially
reduce one or more significant effects on the environment.
Section 5. The Board of Directors of the Re, development Agency of the City
of Temecula hereby approves that certain Agreement entitled "Owner Participation
Agreement by and between the Re, development Agency of the City of Temecula and
T.Z.B.G., Inc., A California Corporation," dated as of August 31, 1995, in substantially the
form attached hereto as Exhibit A, and hereby directs the Chairperson of the Agency to
execute the Agreement on behalf of the Agency.
Section 6. The Secretary shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED by the Board of Directors of the
Redevelopment Agency of the City of Temecula on the 31st day of August, 1995.
Ronald J. Parks
Chairperson
ATFF__~T:
June S. Greek, CMC
City Clerk/Agency Secretary
[SEALI
.2:133579.1 '5-
e. Them is no new information since the certification of the previous EIR
which would show or tend to show that significant effects previously examined might
be substantially more severe than shown in the previous EIR.
f. There is no new information since the certification of the previous EIR
which would show or tend to show that mitigation measures or alternatives previously
found not to be feasible would in fact be feasible and would substantially reduce one
or more significant effects of the Project.
g. There is no new information since the certification of the previous FJR
which would show or tend to show that mitigation measures or alternatives which are
considerably different from those analyzed in the previous EIR would substantially
reduce one or more significant effects on the environment.
Section 5. The Board of Directors of the Redevelopment Agency of the City
of Temecula hereby approves that certain Agreement entitled 'Owner Participation
Agreement by and between the Redevelopmerit Agency of the City of Temecula and
T.Z.B.G., Inc., A California Corporation,' dated as of August 31, 1995, in substantially the
form attached hereto as Exhibit A, and hereby directs the Chairperson of the Agency to
execute the Agreement on behalf of the Agency.
Section 6. The Secretary shall certify the adoption of this Resolution.
PASSED, APPROVFX} AND ADOPTED by the Board of Directors of the
Redevelopment Agency of the City of Temecula on the 31st day of August, 1995.
ATTEST:
Ronald J. Parks
Chairperson
June S. Greek, CMC
City Clerk/Agency Secretary
[SEAL]
.2:133579,1
RECORDED AT REQUEST OF
AND W~:~N RECORDED
RETURN TO:
.lune Greek
Secretary
Redevelopment Agency of the
City of Temecula
43174 Bn_-~iness Park Drive
Temecula, California 92.590
EXEMPT FROM RF_.I3ORDER'S FEES
pursuant to Government Code
Sections 6103 and 27383
OWNER PARTICIPATION AGI~IENT
by and between the
RI~nEVELOPM~NT AGENCY OF THE CITY OF TEMECULA
and
T.Z.B.G., .INC.
A Cnllfornia Corporation
DATED AUGUST 31, 1995
OLD TOWN ENTERTAINMENT CENTER PROIECT
TEMECULA REDEVI~I-OP~
PROJECT AREA 1988-1
LAX2:126427.9 Fiml: Augst 1~, 1995
determines and declares that:
a. Providing for such Public Improvements is necessary to effectuate the
purposes of the Re, development Plan for the reasons set forth in Section 1.d. and for
the reasons set forth in the Plan and accompanying reports, which specifically
contemplate the construction of such Public Improvements, as well as the findings
made bY the Board of Supervisors in adopting the Redevelopment Plan and
subsequently validated in a court challenge.
b. The Public Improvements are of direct benefit to the Project Area and
the immediate area in which the Project is located for the reasons set forth in Section
1.d. and for the reasons set forth in the Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopmerit Plan and
subsequently validated in a court challenge.
c. No other reasonable means of financing the Public Improvements are
available to the community to finance the Public Improvements based upon the
reasons set forth in the Redevelopmerit Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopmerit Plan and ..
subsequen~y validated in a court challenge.
d. The payment of funds for the Public Improvements will assist in the
elimination of one or more of the blighting conditions inside the Project Area and is
consistent with the Implementation Plan adopted for the Project Area for the reasons
set forth in Section 1.d. and for the reasons set forth in the Plan and accompanying
reports, which specifically contemplate the construction of such Public Improvements,
as well as the findings made by the Board of Supervisors in adopting the
Redevelopment Plan and subsequently validated in a court challenge.
Section 3. It is anticipated that a portion of the Old Town Festival Square and
the Open House will be situated on a street right-of-way which is owned by the City as the
Square is anticipated to be located between buildings on the parcels comprising the Site and
the Open House will be situated on more than one parcel. It is also anticipated that the City
will vacate such right-of-way upon the purchase of the surrounding parcels by the
Participant. Pursuant to Section 3.7 of the Agreement, in the event such property does not
belong to the Participant by virtue of the vacation, Agency agrees to acquire such property
from the City in an area not to exceed eight thousand (8,000) square feet and lease it to the
Participant at the annual rent of one dollar ($1.00) per year for fifty (50) years, in
accordance with all applicable laws. The Board of Directors hereby finds, determines and
declares that, as defined in Health and Safety Code Section 33433, the fair reuse rental value
of such right-of-way property, following vacation and subject to the limitations of this
Agreement, is the rental value described in this Section and further finds, determines and
· 133579.1 -3-
Section 1.2 The Redevelopmerit Plan
The Redevelopment Plan (*Plan ") was approved by Ordinance No. 658 of the Board
of Supervisors of Riverside County on July 12, 1988, prior to ino~rpomfion of the City of
Temecula. Pursuant to City Ordinance No. 91-11, which became effective May 9, 1991,
and City Ordinance No. 91-15, which became effective April 9, 1991, the City approved the
Plan. Said Ordinances had the effect of adopting the Plan and transfening jurisdiction over
said Plan to the Agency, as of July 1, 1991. Pursuant to Ordinance No. 93-04 and 94-03,
Ordinance No. 91-11 was codified at Seaion 8.04.010 of the Temec~la Municipal Code.
The Plan was.mended by Ordinance No. 9433, adopted on December 20, 1994.
Section 1.3 The Site
A. The real property to be redeveloped pursuant to this Agreement (the "Site')
consists of two components. The first component of the Site con~m of the Old Town Area
which is that area designated as *Tourist Core Retail* on Exhibit 1, Proposed Land Use
Districts Map, of the Old Town Specific Plan, approved by Ordinance No. 94-(5 of the City
Council of the City of Temecula on February 22, 1994, which is on file in the Office of the
City Clerk. The second component of the Site is the Westside Area which is generally
located southwesterly of the Old Town Area and which is specifically de.%-fibed on the Study
Area Map, of the Westside Specific Plan, approved by Ordinance No. 95-08 of the City
Council of the City of Temec~la on June 27, 1995, which is on file in the Office of the City
Clerk.
B. The Site consists of those Properties within the component areas owned by the
Participant and which will be specifi~y descTibed and depi~i on Exhibit No. 1 and
Exhibit No. 2. The Participant ~rrently has an option to purchase certain properties in the
Old Town Area which will comprise a portion of the Site when the acquisitions ar~ complete.
Both parties acknowledge that the terms of this Agreement shall apply only to such properties
as are acquired by Participant. The Executive D~r is hereby authorized and directed to
enter into amendments to this Owner Participation Agreement which add specific properties
to the component areas of the Site which Participant may subsequently acquire.
C. The Old Town Area of the Site is located within the Project Ar~a. The
Agency finds that the Westside Area of the Site is located just outside the Project .Area and
will be physicaily and economically integrated into that portion of the Project located on the
Old Town Area of the Site. The Westside Area will be within Survey Area for possible
inclusion into the Project Area
Section 1.4 Parties to the A~eement
A. The Ai, ency
The Agency is a public body, corporate and politic, exercising governmental functions
and powen and organized and existing under the Community Redevelopment Law of the
State of California (Section 33000, et Z~l-, Health and Safety Code; hereafter "Act"). The
principal office of the Agency is located at 43174 Business Park Drive, Temecula, California
92590.
LAX2:I2642'Y.9 Fiml: Aug~mt 13, 199~ -~-
RESOLUTION NO. RDA 95-
A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE REI'}EVELOPIVfF~NT AGENCY OF THE CITY OF
TEMECULA APPROVING THAT CERTAIN
AGREEMENT ENTITL~r} "OWNER PARTICIPATION
AGREEMEaNT BY AND BETWEEN THE
REDEVELOPMI~NT AGENCY OF TFIE CITY OF
TEMECULA AND T.Z.B.G., INC., A CALIFORNIA
CORt~RATION" DATED AS OF AUGUST 31, 1995
THE BOARD OF DIRECTORS OF THE REnEVEI~)PMENT AGENCY
OF THE CITY OF TEMECULA DOES I~F~REBY RESOLVE AS FOLLOWS:
Section 1. The Board of Directors of the Redevelopment Agency of the City
of Temecula does hereby fred, determine and declare as follows:
a. The project proposed by Participant, T.Z.B.G., Inc., is generally
known as the Old Town Entertainment Center Project ("Project") and will generally
consist of an Opera House, Wild West Arena, cabaret/playhouse theaters, "quick
draw" and indoor/outdoor exhibitions, restaurants, theme-related retail, Old Town
Festival Square, and parking facilities as more specifically described in Section 2.1 of
the Owner Participation Agreement.
b. The Project will be located within the Tourist Core Retail Area as
designated on the Old Town Specific Plan and within the Westside Area as designated
in the Westside Specific Plan.
c. Prior to the consideration and adoption of this Resolution, both the City
Council of the City of Temecula and the Board of Directors of the Redevelopment
Agency of the City of Temecula held a duly noticed joint public hearing on August
31, 1995 to consider the proposed Owner Participation Agreement. The hearing was
duly noticed pursuant to legal advertisements in a newspaper of general circulation
within the community once per week for two successive weeks prior to the hearing
pursuant to Government Code Section 6066. The Agency also prepared a "Summary
Report of the Owner Participation Agreement by and between the Redevelopment
Agency of the City of Temecula and T.Z.B.G., Inc., a California Corporation," dated
August 15, 1995, which report was prepared in accordance with the provisions of
Health and Safety Code Section 33334 and was on f~e in the City Clerk's Office of
the City of Temecula and available for public inspection at the time of first
publication of the Notice of Joint Public Hearing.
,,2:133579.1 -1-
such term shall include any other lawful successors in intu'e~ and assigns of Participant and
any assignees approval by the Agency.
D. Agency may taminate this Agreement pursuant to Section 6.7 ff l>ani~p~t
violates the terms of this Section.
Section 1.6 Contrnet Doew,ments
The Contract Documents which are part of this Agreement, and each of which are
incorporated herein by this reference, are as follows:
Exhibit No. 1
Exhibit No. 2
Exhibit No. 3
Exhibit No. 4
Site Map
Legal Description of Site
Description of Public Improvements
Form of Certificate of Completion
ARTICLF~ H
DEV~OPMENT OF THF~ SITE
Section 2.1 Scope of Development
A. The Project consists of two components - the "Entertainment Facilities" and
the "Public Improvements."
1. As used in this Agreement the "Entertainment Facilities" means the
land acquisition, design and construction of the following: (1) The Opera House; (2)
Wild West Arena; (3) virtual reality theaten; (4) cabaretYphyhouse theaters; (5)
"quick draw" and indoor/outdoor exhibitions; (6) restaurants; C/) theme related retail;
(8) Old Town Festival Square, and (9) parking facilities. These desa'ipfions are for
the purpose of defining those portions of the Project for which Participant shall have
responsibility for land acquisition, financing, design and construction as more
specifically set forth in this Agreement. Participant shall have the right to rename
these components of the Project for marketing purposes. The parties shall continue to
negotiate to determine the extent to which the parking facilities may be made available
to the general public.
2. As used in this Agreement the "Public Improvements" means the land
acquisition, design and the construction, expansion or renovation of the following:
(1) Renovation and expansion of the Old Town First SU'eet Bridge; (2) Old Town
Gateway Landscaping; (3) Old Town Demonstration Block, including the Front
Street repairs/upgrades, Front Street reconstruction, miscellaneous street
impwvcmcnts; (4) Old Town Sewer Improvements; (5) Old Town Water
Improvements; and (6') Old Town Storm drain improvements.
LAX2:I26427.9 Fatal: August IS, 1994j
f. There is n_Qo new information since the certification of the previous EIR
which would show or tend to show that mitigation measures or alternatives previously
found not to be feasible would in fact be feasible and would substantially reduce one
or more significant effects of the Project.
g. Them is no new information since the certification of the previous EIR
which would show or tend to show that mitigation measures or alternatives which are
considerably different from those analyzed in the previous EIR would substantially
reduce one or more significant effects on the environment.
Section 5. The City Council of the City of Temecula hereby consents to and
approves of the Agency entering into that certain Agreement entitled "Owner Participation
Agreement by and between the Redevelopmen[ Agency of the City of Temecula and
T.Z.B.G., Inc., A California Corporation,' dated as of August 31, 1995, in substantially the
form attached hereto as Exhibit A.
Section 6. The City Clerk shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Temecula on the 31st day of August, 1995.
ATI'EST:
Karel Lindemans
Mayor Pro Tem
June S. Greek, CMC
City Clerk
[SEAL]
X2:133580.1 '5-
Section 2.4 lndemnltI and Intotrance
A. The Participant shall defend, indemnify, assume all responsibility for and hold
the Agency and the City, and their respective elected and appointed officers and employees,
harmless from all costs ('including reasonable attorneys fees and costs), claims, demands or
ilnhilities judgments for injury or damage to pfop~ty and injuries to persons, including
death, which may be caused by any of the Participant's activities under this Agreement,
whether such activities or performance thereof be by the Participant or anyone directly
employed or contracted with by the Participant and whether such damage shall accrue or be
discovered before or after termlnnHon of this Agll~ment; provided, however that the
Participant shall not be required to indemnify or hold Agency harmless for injuries resulting
from the negligence or wilft~ mira:induct of the Agency, its elected or appointed officials,
and employees. This indemnity includes, but is not limited to, any repair, clcanup, -
remcdiation, detoxi~cation, or p~on and implementation of any removal, rcmalial,
response, closure or other plan (regardless of whether undertaken due to governmental
action) concerning any bmT=rdous substance or hazardous wastes including petroleum and its
fractions as defined in the Comprehesmsivc Environmental Response, Compensation and
Liabi|ity Act ['CERCLA'; 42 U.S.C. Section 9601, ct Sit-], the Resource Conservation and
Recovery Act [*RCRA*; 42 U.S.C. Section 6901 et l~!l.] and California Health and Safety
Code Section COd~ Section 25280 et gli- at any place where Participant owns or has control
of real property pursuant to any of Particitxmt's activities under this Agreement TIc
foregoing indemnity is intended to otxcrate as an agreement pursuant to Section l(Y7 (e) of
CERCLA and California Health and Safety Code Section 25364 to assure, protect, hold
harmless and indemnify Agency from liability. In the event an assignment has been duly
made pursuant to the provisions of S~,,"tion 1.5 of this Agreement, the Assignor shall not be
required to indemnify the Agency for acts or omissions which occur following the date of the
assignment which arc not committed or omitted by the assignor.
B. The Agency shall defend, indemnify, assume all responsibility for and hold the
Participant, and its respective officers and employees, harmless from all costs (including
attorneys fees and costs), claims, demands or liabilities judgments for injury or damage to
property and injuries to persons, including death, which may be caused by Agency's actions
or inactions in carrying out its obligations pursuant to this Agreement, whether such activities
or performance thereof be by the Agency or anyone directly employed or contracted with by
the Agency and whether such damage shall accrue or be discovered before or after
· termination of this Agreement; provided, however that the Agency shall not be required to
indemnify or hold Participant harmless for injuries resulting from the negligence or wilful
misconduct of the Participant, its officers and employees.
C. Insurance
1. Not in derogation of the indemnity provisions of subsection A of this
Section, the Participant shall take out and maintain during the period set forth in
Subsection C.4., a comprehensive liability policy in the mount of at least Three
Million Dollars ($3,000,000) for any penon, Five Million DoLlars ($5,000,000) for
any occurrence, and One Million Dollars ($1,000,000) prol~en~ damage naming the
City and Agency as additional insureds.
LAX2:I~642~.9 Find: Atom 15, 1995
2. The Participant shall furnish an endorsement of the policies signed by
an authorized agent of the insurance carrier setting forth the general provisions of the
inpdrance coverage and including the matlzrs required by this Agreement. This
endorsement shall name the City and the Agency and, if available, thcir rujx~tive
officers, agents, and employees as additional insureds under the policy. The
endorsement shall contain a statement of obligation on the part of the carrier to notify
the Agency by certified mail of any moflification, cancellation or termination of the
coverage at least thirty 00) days in advance of the effective date of any such
modification, cancellation or tcrminn6on. Coverage provided hereunder by the
maintained by the Agency or City, and the policy shall contain such an endorsement.
The required endorsement shall bc filed with the Agency prior to commencement of
construction. .
3. The Participant shall also furnish or cause to be furnished to the
Agency evidence satisfactory to the Agency that any contractor with whom it has
contracted for the performance of work on the Site or othenvise pursuant to this
Agreement carries worken' compensation insurance as required by hw.
4. The in-_~narance obligations set forth in this Section shall remain in effect
only until a final Czrtifiate of Completion has been furnished for all of the
impwvements as hereafter provided in this Agreement.
5. Without affecting any other rights or remedies under this Agreement,
each party hereby waives its fight of subrogation against the other for claims which
may be paid pursuant the insurance required pursuant to this Section.
Section 2.5 City and Other Governmental AI, ency Permits
A. Before commencement of construction or development of any buildings,
structures or other work of improvement the Participant shall, at its own expense, secure or
cause to be secured any and all permits which may be required by the City and any other
governmental agency having jurisdiction as to such construction, development or work. The
parties hereby agree that nothing in this Agreement shall restrict in any way the discretion of
the City Planning Commission, City Council, or the City itself to approve, conditionally
approve or deny any land use entitlement required for the Project in accordance with
applicable law. Agency shall assist the Participant in obtaining prompt and expeditious
processing of its permit applications on a "fast track" basis..
B. The Participant assumes all responSibility for taking all actions within its
control necessary to comply with the Subdivision Map Act (Government Code § 66410, et
see_.) and local subdivision enactments related thereto with respect to the Site.
Section 2.6 Antidi~rimirmtion Durlnp Construction
The Participant, for itself and its successors and assigns, agrees that in the
construction of the Entertainment Facilities and Public Improvements provided for in this
Agreement, the Participant shall not discriminste against any employee or applicant for
LAX2:I264ZT.9 Fis~ A~gust IS, 19945 _g_
employment'because of race, color, creed, religion, age, sex, marital status, handicap,
national origin or ancestry.
Section 2.7 Certificnte of Completion
A. After completion of all construction and development d the Public
Improvements in the manner requited by this Agreement, the Agency shall furnish the
Participant with a Cenifica~ of Completion within ten (10) business days of written request
therefor by the Participant. The Agency shall not unreasonably withhold any such Certificate
of Completion, Such Certificate of Completion ~nll be a conclusive determination of
satisfactory completion of the constriction of the Public Improvements as requiz~ by this
Agreement and the Certificate of Completion sbnll so state. After rewzdafion of such
Certificate of Completion, any party then owning or thereafter purebribing, !~-~ing or
otherwise acquiring any interest in the Site shnll not (because of such ownership, purchase,
lease or acquisition), incur any obligation pursuant to this Agreement for the construction of
the Public Improvements.
B. The Certificate d Completion sb,l: be in such form as to permit it to be
recorded in the Recorder's Office of Riverside County. The Certificate of Completion shall
be in substantially the form attached hereto as Exhibit 4.
C. If the Agency refus~ or ~ils to furnish a Certificate of Completion, or pan
thereof, after written request from the Participant, the Agency shall, within ten (10) business
days of written request therefor, provide the Participant with a written statement of the '-
reasons the Agency refused or failed to furnish a Certificate of Completion. The statement
shall also contain Agency's opinion of the actions the Pm'dcipant must tnice to obtnin a
Certificate of Completion. If the reason for such refusal is confined to the immediate
availability of specific items of materials for landscaping or due to the fact that certain
"punch list" list items which would not prevent the safe and reasonable use of the
improvements, as determined by the Agency in its reasonable discretion, are not yet
completed, the Agency shall issue its Certificate of Completion upon the posting of a bond
by the Participant with the Agency in an amount representing a fair value of the work not yet
completed. If the Agency shall have failed to provide such written statement within said ten
(10) business day period, the Participant shall be deemed entified to the Certificate of
Completion.
D. Such Certificate of Completion shall not constitute evidence of complianee
with or satisfaction of any obligation of the Participant to any holder of any deed of trust
securing money loaned to fmanee the improvements, or any pan thereof. Such Certificate of
Completion is not a notice of completion as referred to in the California Civil Code, Section
3093.
LAX2:I26427.9 Final: August L$, 199~
Section 3.1 Uses
The Participant covenants and agrees for itself, its successors, its as~gns, and every
successor in in~ to the Site or any pan thereof, that during construction and until the
covenants hereunder terminate pursuant to Section 3.10, the Participant, and such successors
and such assignees, shall devote the Site to use as an enter~nment facility consisting of the
following: (1) The Opera House; (2) W'rid West Arena; f3) virtual reality theaters; (4)
cabaret/playhouse theaters; (5) *quick draw' and indoor/outdoor exhibitions; (6) restaurants;
C7) theme related retail; C/) Old Town Festival Square; (8) parking facilities; and such uses
as are compatible with and substao~lly similar to such uses.
Section 3.2 Project Nnme to Include "Old Town Temeeula:" Advertlslm, of
General F-vents
Participant shall include the name "OM Town Temecula" in 'the legal and operating
name of the Entertainment F~c/litie~ and in all written and television advertising and
pwmotional materials, and where commercially and artistically practical, radio advertising,
disseminated for the Entertainment Facilities. The Participant's advertising, publicity and
promotional programs shall include, whenever po~le, and appropthte in the Participant's
reasonable judgment, notice of general events, festivals, and retail opportunities available in
the Old Town Area.
Section 3.3 Pro~n'amminp for F, ntertslnment Facilities
Participant shall make every effort to provide diverse programming of a commewially
reasonable nature for the Entertainment Facilities reflecting a cross-section of regional
community entertainment preferences.
Section 3.4 Rent Free Availability of Entertainment Facilities to Certain City
Non-Profit Groups
The Entertainment Facilities, excluding parking, shall be made available rent free for
non-competing public non-profit use by local theater and arts organizations for a minimum of
forty (40) days per year, in accordance with a scheduled approved by the Agency and the
Participant, with such uses being subject to Participant's determination of availability and
conflicts of the venues, which determination shall be exercised in a reasonable manner. Any
time that any one of the Project's theaters or other private facilities is used by an individual
or group for any time on a given day, then such usage shall be counted towards the 40 day
minimum requirement.
Section 3.5 Entertainment Facilities to Provide Fducational Coml~onent
Participant shall include in the operations of the Entertainment Facilities, an
educational component which will provide opportunities for performing arts education for
local area residents.
~c2:n6~27.9 F~-~- ~ xs, l~s -10-
Section 3,6 Rntertnlnment Fnclllties tBHn~ Policies
To the extent permitted by hw, Participant ,~n11 adop~ hiring policies for the
Entertainment Fncilities which provide a prderence to local area residents.
Section 3.7 Old Town Festival SquaFe
A. The Participant shall acquire the land and design, construct, operate and
contwl, a portion of the Site to be known as the *Old Town Festival Square.' The Agency
shall approve the specific size and location of the Old Town Festival Square, which appwval
shall not be unreasonably withheld. The Agency shall approve any change in the size,
location, or use of the Old Town Festival Square other than as set forth in this Section. Such
approval shall not be nnr~-~mmbly withheld provided that an satemate site for the Old Town
Festival Square is available and the satemate is comparable in terms of size, location,
improvements and function to the designated location.
B. The Old Town Festival Square shall be used for: (1) special events related to
the Entertainment Facilities, which may or may not require an ndmi-qsion fee (including
without limitation, wine festivals, shows, nhihits); (2) entertainment; (3) picnics, receptions
and similar activities; (4) landscaped rest areas; or (4) revenue generating activities.
C. The Old Town Festival Square or a portion thereof shall be available for use
without an admission charge at least ten (10) hours per week in accordance with a schedule
appwved by the Agency and Participant, which approvals shall not be unreasonably
withheld.
D. It is anticipated that a portion of the Old Town Festival Square and the Open
House will be situated on street right of way which is owned by the City as the Square is
anticipated to be located between buildings on the parcels comprising the Site and the Open
House will be situated on more than one parcel. It is also anticipated that the City will
vacate such right of way upon the purchase of the surrounding parcels by the Participant. In
the event such property does not belong to the Participant by virtue of the vacation, Agency
agrees to acquire such property from the City in an area not to exceed eight thousand (8,000)
square feet and lease it to the Participant at the annual rent of one dollar 61.00) per year for
fifty (50) years, in accordance with all applicable hws. The parties agree that,- as defined in
Health and Safety Code Section 33433, the fair reuse rental value of such right-of-way
property, following vacation and subject to the limitations of this Agreement, is the rental
value described in this Section.
Section 3.8 At, ency Guidelines for Consideration of Other l~,ntertainment
Related Facilities
A. The Agency and Participant recognize that certain impacts upon the community
could occur ff additional entertainment-related facilities within the City are not carefully
phnned. Therefore, the Agency shall establish administrative guidelines with which all
future entertainment- related development, ,within the City of Temecula must comply, t~idng
into consideration the needs, goals and plans of the Entertainment Facilities and the
community. The Agency will consult in good faith with the Participant prior to proposing
such administrative guidelines and prior to considering future entertainment related facilities
LAX2:~2~ZT.9 P~"' Atom ~S, ~SgS -11-
affecting the Old Town Area. The guidelines may specify the following development
criteria:
1. Architectural design guidelines;
2. Use guidelines which would not only assure con.~t~cy of uses but
also be intended to avoid duplication of uses to in~ure that a variety of complimentary
services are available to the public;
3. Criteth concerning themes, quality of services and products, developed
for entertainment-related businesses;-and
4. Proposed geographic locations for entertainment- related uses, as
defined in the guideline,s, designed to avoid the proliferation of such uses in areas
without adequate traffic capacity, or otherwise unsuitable, including, without
limitation, overhy zoning districts, the requirement for a special use permit, or other
provisions for separation between facilities and incompatible. uses.
B. The parties acknowledge and agree, however, that this Agreement does not
restrict the discretion of the City Planning Commi-~ion, City Council, Redevelopment
Agency Board, or the City or the Agency itself, to approve, approve with conditions, or
deny the proposed guidelines or any proposed entertainment-related project and that any such
project shall be reviewed and considered in accordance with applicable hw.
Section 3.9 Covenants for Non-Di~'rimination
A. The Participant covenants by and for itself and any successors in interest that
there shall be no discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status, age, handicap, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Site, nor shall the Participant itself or any person claiming under or through it establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Site.
B. The Participant shall refrain from restricting the rental, sale or lease of the
Site on the basis of race, color, creed, religion, sex, marital status, handicap, national origin
or ancestry of any person. All such deeds, leases or contracts ~ contain or be subject to
substantially the following nondiscrimination or nonsegregation chuses:
1. In deeds: 'The grantee herein covenants by and for himself or herself,
his or her heirs, executors, administrators and assigns, and all persons claiming under
or through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex, marital
status, handicap, national origin or ancestry in the .sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee
himself or herself or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
IAX2:126427.9 Fml: Augat It, 1995
sublessees or vendees in the land herein conveyed. The foregoing covenants shad run
with the land.'
2. In leases: 'The lessee he~in covenants by and for himself or herself,
his or her heirs, executors, ~dministraton and ~, and all persons claiming under
or through him or her, and this lease is made and accept~ upon and subject to the
following conditions:
'There shall be no 41~-Timln~tlon against or segregation of any
person or group of persons on account of race, color, creed,
origin in the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the premises herein leased nor shall the
lessee himself or herself, or any person clsdming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, sublessees, subtnxants or vendees in the preraises herein
leased.'
3. In contracts: "There sb~ll be no discrimination against or segregation
of, any person, or group of persons on account of race, color, creed,' religion, sex,
marital status, handicap, ancestry or national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor sb~n the transferee
himself or herself or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the premises."
C. The covenants established in this Section shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its
successors and assigns, the City and any successor in interest to the Site or any pan thereof.
The covenants, contained in this Section ~:all remain in perpetuity.
Section 3.10 Continuation of Covenants
A. Of the covenants which have been established pursuant to this Agreement, the
same shall be deemed to be covenants running with the land for the benefit of the Site, the
Project Area and the Agency in carrying out its statutory responsibilities under California
Redevelopment Act (Health and Safety Code Sections 33000 et sea_.) to implement the
Redevelopment Plan. The burdens of the covenants are imposed on the Site and the
Agency's interests in the Project Area. The covehants contained in this Agreement shall be
binding for the benefit of the Site, the Project Area and the Agency and its successors and
assigns, and such covenants shall run in favor of the Agency for the entire period during
which such covenants shall be in force and effect, without regard to whether the Agency is
or remains an owner of any land or interest therein to which such covenants relate.
B. The covenants described in Article H of this Agreement shall expire upon the
issuance by Agency of a Certificate of Completion as to the Site. The covenants against
LAX2:12M~rT.9 Fimi: ^"S'~ ts, ,ws -13-
discrimination contained in Section 3.09 of this Agreement shall remain in perpetuity. All
other covenants contained in this Agreement, except for the covenants contained in Section
4.6, Participant Payment of Costs of Increased City Services Resulting Fwm the Project, and
Section 4.7, User Charge Upon Tickets Sold, shall expire at the end of the twentieth (20th)
year following issuance of a Certificate of Completion for the Site. The covenants contained
in Sections 4.6, Participant Payment of Costs of Increased City Services, and 4.7, User
Charge Upon Tickets Sold, shall expire at the end of the fiftieth (50) year following the first
performance at a theater on the Site.
C. .The Agency, in the event of any breach of any such covenants, shall have the
right to exercise all of the rights and remedies, and to maintain any actions at law or suits in
equity or other proper proceedings to enforce the curing of such breach. The covenants
contained in this Agreement shall be for the benefit of and shall be enforceable only by the
Agency and its successors.
ARTICLE IV
FINANCING OF lrtYBLIC IMPROVEMENTS AND PAYMF~NTS TO AGENCY
Section 4.1 ReSponsibilities For Financint, Entertainment Facilities and Public
Improvements
A. Participant shall assume sole and full responsibility and all financial risk for
financing the land acquisition, design, construction, and operation of the Entertainment
Facilities (as defined in Section 2.1.A. 1. of this Agreement) and the Public Improvements
defined in Section 2.1.A.2 of this Agreement) and necessary fixtures and equipment. The
Agency shall not assist in the financing of the Entertainment Facilities.
B. Agency shall assume sole and full responsibility and all financial risk for the
land acquisition, design and the construction, expansion or renovation of the (1) Main Street
Bridge Improvements, provided, however, that Agency retains sole discretion to determine
whether to proceed with this improvement, (2) Sixth Street Parking improvements, and (3)
Main Street facades and non-conforming sign removal as more specifically described in
Section 4.2. The budget for these three improvements shall be limited to three hundred
seventy five thousand dollars ($375,000.00) for the Main Street Bridge Improvements, three
hundred seventy five thousand dollars ($375,000.00) for the Sixth Street Parking
Improvements, and two hundred seventy five thousand dollars ($275,000.00) for the Main
Street Facades and Non-Conforming Sign Removal, unless the Agency determines in its sole
discretion that additional monies are available therefore. The design of the improvements
shall take into account the limits of this agreed budget so that the ultimate cost of the design
and construction of the improvements does not exceed the financial limitation.
C. The Western Bypass Corridor will be financed through and built as part of an
assessment district described in Section 4.3 of this Agreement.
Section 4.2 Construction of Public Improvements by Participant
A. In consideration of the payment of the sum of five million nine hundred eighty
seven thousand seven hundred dollars ($5,987,700.00) by the Agency to the Participant, the
LAX2:I26427.9 Final: August 15, 1995 -14-
event the l>articipant elects to finance the Public lmlm~veme~ts by a community fadlities
district, homer, the Agency and Participant shall in good faith negotiate an nmendment to
this AEreement providing for the acquisition of hnd for the Site and the conveyance of said
land to Participant with a value of not more than $5,487,700 upon terms acceptable to both
pardes.
B. Participant ~I1 design the Public Improvements, except for the Western Bypass
Corridor. Agency staff and Participant's design staff shall cooperate in the preparation of the
plans and specifications. Participant sh~!l submit to the Agency plans and specifications for
the Public Improvements. Participant shall pay for the preparation of such plans and
specifications. Agency shall cause the approval by the responsible agencies of the plans and
specifications as expeditiously as possible following submittal.
C. The Public Imt~'ovcments shall be bid in accordance with the provisions of the
Public Contracts Code and applicable hw for public works for cities, including but not
limited to the requirements of performance and labor and material bonds. Participant shall
pay prevniling wages for the construction of the Public Improvements in accordance with
applicable hw.
D. Participant shall be solely responsible for all cost overruns or expenses
incurred in building the Public Improvements in excess of the Agency's contribution of
$5,987,700. Participant shall also be solely responsible for any claims which may be made' ~
by the contractors for the work performed. Further, Participant sbnll be solely responsible
for complying with all requirements for completion of the Public Improvements required by
the land use entitlements for the Project. In the event the bids are less than the Agency's
contribution, the difference between the amount of the bids, including a customary and
reasonable construction management fee, shall be paid to the Agency within thirty (30)
calendar days of notice from the Agency.
E. Agency shall pay the sum specified in Subparagraph A to Participant upon ten
(10) business day's written notice following completion of the following events:
1. The financing for the Entertainment Facilities has closed or the Agency
determines in its sole and unfettered discretion that commitments are in place that
assure the closing; and
2. Participant has fully executed construction agreements for the
conslnction of the Public Improvements, which agreement for the Public
Improvements shall be consistent with the provisions of this Article;
F. Participant shall commence construction of the Public Improvements within
thirty (30) calendar days of receipt of funds unless such time is extended by the Executive
Director of the Agency.
G. In the event this Agreement is terminated prior to the commencement of the
construction of the Public Improvements, Agency agrees to purchase from Participant the
plans and specifications and work in progress for the design of the Public Improvements and
all documents, relnts, calculations, data and other mn.__~ prelxttmt in the course of
designing the Public Improvements ("Design Work"). The purchase shall occur at a time
designated by the Agency within three (3) years from the date of termination of the
Agreement. The purchase price shall be the actual cost of the Design Work not to exceed
five hundred thousand dollars ($500,000.00) which shall be calatlated on the basis of (1) the
actual time incuzred which was reasonably neces~ry to complete the Design Work, (2) the
actual charges which were reasonably necessary to complete the Design Work, and (3) a
schedule of rates and charges submitted to the Agency by the Participant and agreed to by
the Agency's Executive Director on or before the date of this AgreemenL If the schedule of
rates and charges are not approved by the Executive Director prior to the effective date of
this Agreement, Agency shah not be obligated to purchase the Design Work.
Section 4.3 Western Peyimss Assessment m-~riet
A. Agency agrees to cause to be initiated and will diligently pursue the formation
of an n.~sessment district to fund the costs of land acquisition and consmwtion of the Western
Bypass Corridor on or before January 10, 1996 with the issuance of nlses.sment district bonds
on or before March 1, 1996, in accordance with applicable State and federal law.
B. No commercial, industrial or residential strucUtrm on property within the Old
Town Area (as defined in the Old Town Specific Plan) existing as of the date of this
Agreement, shall be n~sessed for the Public Improvements. Future buildings in the Old
Town, whether commercial, industrial, or residential, approved by the City on or after the
date of this Agreement shall also be n~sessed for the Western Bypass Corridor.
C. Participant, on behalf of itseft, its successon and assigns, hereby
acknowledges that development of the Site will have an impact on traffw in the region and
the Site will benefit from the construction of the Western Bypass Corridor and therefore
agrees and offers to participate in, and waives all rights to object to the formation of an
assessment district for the construction of the Western Bypass Corridor.
Section 4.4 Community Facilities District
Agency agrees to cause to be initiated and will diligently pursue the formation of a
community facilities district to assist Participant's obligations to fund the costs of land
acquisition and construction of eligible public facilities in accordance with the procedures of
applicable state and federal hw. Agency shall approve the financing team for the community
facilities district, with input from the Participant.
Section 4.5 Relocation of Persons Displaced by the Project
Participant shall pay such relocation benefits as a~ required by hw. The Executive
Director shall approve all relocation payments and settlements made by the Participant and
all informational and settlement documents prior to use by the Participant in connection with
the administration of the relocation efforts. Participant shall indemnify Agency pursuant to
Section 2.4 for any payments, obligations, or litigation which may arise out of or be related
to any actions or inactions relating to the relocation requirements of this Agreement.
Z-AX2:X26427.9 Fin~ /aVatIs, 199s -16-
Section 4.6 User Chart, e Upon Tickets Sold
A. In order to assist the Participant's private financing of the Entertainment
Facilities with a committed revenue source and to assist the Agency and the City with
expenses each will incur with respect to this Project and its impact upon the community, the
panics hereby agree to establish and maintain a user charge upon each ticket sold for the
Project in the amount of eight and three quarters percent (8 3/4%) of the face amount of
each ticket sold for events on the Site (hereinafter *User Charge*).
1. The User Charge, shall not be considered a tax or fee of the Agency or
City, and may be committed or pledged by the Participant to the financing for, or the
refmancing of, the Entertainment Facilities, if necessary to make up the difference
between the costs of the Project and the available revenues from the Project, for a
period of thirty five (35) years from the date of the closing of the financing of the
Entertainment Facilities.
2. Following the period of thirty five (35) years from the date of the
closing of the financing of the Entertainment Facilities, a portion of the User Charge
shall be paid to the Agency as follows:
(a) Beginning in the thirty sixth 06th) year and concluding at the
end of the fiftieth (50th) year from the date of the closing of the financing of
the Entertainment Facilities, Participant shall pay to the Agency the amount of
the User Fees received up to two million dollars ($2,000,000.00) per year,
subject to the increase in this amount set forth in Subparagraph 2.(c);
(b) During such period, Participant shall retain the amount of the
User Fees received in excess of $2,000,000 per yea~;
(e) Beginning in the thirty seventh year (37th) year and each
succeeding year thereafter, the amount of the $2,000,000 limititation shall be
increased by a percentage equal to the average increase in ticket prices for
events on the Site during the prior year.
B. The operation of this Section and the collection of the User Fees shall be
Suspended for such period of time as there is in effect a valid admissions tax upon tickets or
admissions to the events on the Site imposed by State or local authorities.
Section 4.7 Participant Payment of Costs of Increased City Services Resulting
From the Project
A. Participant agrees to design the Project and implement operational programs
for the Project so as to reduce the impact of the Project upon City services, as more
specifically set forth in the Scope of Development. Despite these design and operational
programs, it is possible that the Project could ereate the need for new and additional City
services at costs greater than the public revenues generated by the Project. Recognizing this
possibility, Participant therefore agrees to meet and confer with the City and the Agency on a
monthly basis to determine the need for new and additional City services related to the
LAX2:126427.9 Fkml: A~,utl 15, 1995
Project and the costs of such services and Participant and Agency agree to negotiate the
issues described in this Section in good faith.
B. Parti~t agnzs to pay to the Agency monthly, for x~imbment to the
City, an mount equal to the di~erence between the actual costs of c~ty sendc~ resulting
from the operation of the Project ('City Service Costs") and the revenue received by the City
and the Agency from the Sit~ ("Project Revenues") pursuant to the nn'ms of this Section
(hereafter "Panicipant's himb~ment Payment"). The Participant's Reimbursement
Payment shall continue for a period of forty (40) years from the date of the first performance
at the Entem!nment Facilities.
C. During the tint six month peziod fonowin_g the issuance of the Certificate of
Completion, representatives of the Agency and Participant shall meet and confer in good/
faith each month to determine (1) the City Sentice Costs for the month, (2) the methods by
which the operations of the Project can reduce any such impacts, C3) the Participant's
Reimbursement Payment for the month. The Participant shall pay to the Agency the
Participant Reimbursement Payment far the month. Participant ~h~]l pay the amount due to
the Agency not later than the 20th day of the month, or the next s~wceetllng business day
thereafter, and the Agency shall thereafter transfer such amount to the City. A late charge in
the amount of one and one haft percent (1.5 % ) of the amount due shall be imposed if not
received by said date and said late charge shall continue each month until the full amount of
the Participant Reimbursement Payment is paid.
D. At the end of the first six (6) month period of operation, and at the end of
each six (6') month period thereafter, representatives of the Agency, City and Participant
shall meet and confer in good faith to determine the monthly Participant Reimbursement
Payment based upon City Service Costs and Project Revenues during the preceding six month
1. The municipal services to be considered in determining City Service
Costs are: (1) Police services; (2) fire and paramedic services; (3) Participant's
proportionate share of a pavement management and street maintenance cost of the
streets adjacent to the Site based upon the trips to and trips generated from the Site to
other traffic on the streets adjacent to the Site.
2. The revenues which shall be considered in determining Project
Revenues shall be: (1) Transient occupancy tax revenue actually received by the City
from the Site and any hotel built on the Westside Area, as defined in Section 1.3,
whether or not owned by Participant; (2) sales tax revenue actually received by the
City from the Site; and (3) tax increment revenues actually received by the Agency
from the Site. No other sources of revenue from the Entertainment Facilities or the
Site shall be considered in this analysis.
3. Participant shall receive a credit of Project Revenues for future six
month periods ff in any one six month period Project Revenues exceed the City
Senrice Costs.
LAX2:I~ZT.9 F~d. ^~=m iS, 199S -18-
4. The detn'minstion of the revised Parlicitmnt Reimbursement Payment
shall be completed on or before the tenth (lOth) business day following the end of the
5. In the event the representatives of the Participant and the Agency Staff
do not agree upon the mount of the Participant's Reimbursement Payment for next
the six month period prior to the tenth (lOth) business day following the end of each
sixth month period, the respective positions of the ParlicitMmt and Staff shall be
present~ to the a neutral arbitrator for a decision as to the appropriate mount of the
Parficipant's Reimbursement Payment for the succeecling six month period. The
]~.,l~u sh~ll agr~ upon an arbitrator, but if the parties cannot agree upon a neutral
arbitrator, a retired judge shall be selected by the ludicial Arbitration and Mediation
Service to decide the matter. The fees and expenses of the arbitrator shall be divided
evenly between the parties.
6. The Partleipant's Reimbursement Payment for the preceding six month
period shall not be altered regardless of the revisio~ to the Participant's
Reimbursement Payment for the next six month period.
7. In the event that a revised Participant Reimbursement Payment has not
been determined pursuant to this subsection by the first day of a new six month
period, the each party shall notify the other of the mount it believes is appropriate
for the new payment. Participant ~nll pay to the Agency an mount equal to the
mount of the new payment which is not in dispute. Upon resolution of the proper
mount of the new payment for the next period, the Participant shrill promptly pay
such mounts, if any due the Agency in accordance with the determination of the
monthly mount for the new period.
E. Following the initial six month period from issuance of the Certificate of
Completion, the Agency shall submit an invoice to the Participant on the first business day of
each month in the mount of the Participant's Reimbursement Payment for the new period as
determined by Subsection D. Participant sbnll pay the mount due to the Agency not later
than the 20th day of the month, or the next s. cceecling business day thereafter, and the
Agency shall thereafter Wansfer such mount to the City. A late charge in the mount of one
and one half percent (1.5 % ) of the mount due slmll be imposed if not received by said date
and said late charge shall continue each month until the full mount of the Participant
Reimbursement Payment is paid.
Seaion 4.8 Re'nnbursement of Participant and Agency Costs Incurred Prior to
Close of F'mnnelng
A. The financing of the Entertainment Facilities may provide for the
reimbursement to Participant of Participant's actual costs paid for development of the Project
and acquisition of the Site prior to the close of the financing including, without limitation:
(1) The cost of architectural, engineering, legal and design fees and other related consuttnnt's
fees; ('2) performance and completion bond premiums; (3) propen3r taxes and insurance; and
(4) option payments, purchase payments, escrow and closing fees, and relocation benefits
paid for acquisition of land for the Site.
B. The flnnncing of the Entertainment Facilities or the financing of the Public
Improvements by the Participant shall also provide for the reimbursement to the Agency and
the City of the full amount of all fees and costs which the Agency or the City have paid to
Burke, W'tlliams & Sorerisen and to PIVIW Associates, Inc. in connection with the Project,
and such other third party out of pocket costs which the Agency or the Staff has inatrred in
connection with its obligations pursuant the Memorandum of Understanding between the
parties dated January 31, 1995.
ARTICLE V
GENERAL PROVISIONS
Section ~.1 Notices. fknmnnds and Communlention~ Amonl, the Panics
Written notices, demands and communications among the Agency and the Participant,
shall be sufficiently given by personal service or dispatched by x~istered or certified mail,
postage prepaid, return receipt requested, to the principal offices of the Agency or the
Participant described in Section 1.4. Such written notices, demands and communications
may be sent in the same manner to such other addresses as either party may from time to
time designate by mail as pwvided in ~ Section. Notice shall be deemed to have been
received as of the date received in the office of a party as evidenced by the date on the
receipt.
Section 5.2 Conflicts of Interest
The Participant waxrants that it has not paid or given and will not pay or give any
officer, employee or agent of the City or Agency any money or other consideration for
obtaining this AgreemenL
Section 5.3 Loenl. State and Federal Laws
The Participant shall carry out the provisions of this Agreement in conformity with all .
applicable local, state and federal hws and regulations, including, without limitation, the
such hws and regulations pertaining to the payment of prevailing wages which might be
applicable to its obligations.
Section 5.4 Taxes. Assessments. Encumbrances and Lien~
The Participant shall pay when due all real estate taxes and assessments on that
portion of the Site owned by the Participant.
Section 5.5 Enforced Delay: Extension of Tunes of Performance
A. In addition to specific provisions of this Agreement, performance by either
party hereunder shall not be deemed to be in default, and all performance and other dates
specified in this Agreement shall be extended, where party seeking the extension has acted
diligently and delays or defaults are due to events beyond the reasonably control of the party
such as but not limited to: war; insurrection; strikes; lockouts; riots; floods; earthquakes;
fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; intergalactic invasion; lack of tmnmpomtion; litigation; unusually severe
weather;, act of government (except such shall exclude the City or the Agency from using its
own acts, repectively, as a force majeur); change in law (exr. luding the City or Agency from
enacting or changing laws which excuse lserformance of the~ respective obligations); or any
other causes beyond the control or without the fault of the party claiming an extension of
time to perform.
B. Notwithstanding anything to the contrary in this Agreement, an extension of
time for any such cause shall be for the period of the enforced delay and shall commence to
run from the time of the commencement of the cause, if notice by the party claiming such
extension is sent to the other party within thirty (30) days of the commencement of the cause.
C. T'tmes of performance under this Agreement may also be extended in writing
by the mutual agreement of the Executive Director of the Agency and the ParticipanL
Section 5.6 Non-Habillty of Officiak and Employees of the AI,ene, y
No member, offtcial or employee of the Agency or the City :.shah be personally liable
to the Participant, or any successor in interest, pursuant to the provisions of this Agreement,
nor for any default or breach by the Agency.
Section 5.7 In~.ction of Bookq and Records
Each party has the fight to inspect, at reasonable times, the books and records of the:.
other pertaining to the Site as pertinent to the purposes of this Agreement upon 24 prior
hours written notice to Participant.
ARTICLF. VI
DEFAULTS AND RI~M!~'~T!~,~
Section 6.1 Defaults - General
A. Subject to the extensions of time set forth in Section 5.3, failure or delay by
either party to perform any term or provision of this Agreement constitutes a default under
this Agreement. A party claiming a default (claimant) shall give written notice of default to
the other party, specifying the default complained of.
B. The claimant shall not terminate this Agreement pursuant to Section 6.7,
institute proceedings against the other party nor be enti~ed to damages if the other party
within fourteen (14) days from receipt of such notice immediately, with due diligence,
commences to cure, correct or remedy such failure or delay and shall complete such cure,
correction or remedy within thirty (30) days from the date of receipt of such notice. Such
cure, correction and remedy shall include payment of any costs, expenses (including attorney
fees) or damages incurred by the non-defaulting party resulting from the default or during the
period of default. In the event the default is caused by the act or omission of a lessee of the
Participant, Participant shall be deem to be curing the default ff the lessee's lease provides
for compliance with the terms of this Agreement and Participant is diligently pursuing its
LA~:n64~.9 F~'~' A.S--t as, am -21-
remedies under the lease to cure the default and completes such cure within the time allowed
by this Agreement.
Section
leral Action~
A. Institution of Y ~qal Actions
Any legal actions related to or ari.~ing out of this Agreement must be instituted in the
Superior Court of the County of Riverside, State of California, in an appropriate municipal
court in that county, or, if federal jurisdiction exists, in the Federal District Court in the
Central District of California, Eastenx Division. In the event such litigation is ~ed by one
party against the other to enforce its rights under this Agreement, the prevailing party, as
determined by the Court's judgment, shall be en~~ed to reasonable attorney fees and
litigation expensu for the relief granted.
B. Agplicablc f ~w
The hws of the State of California ~nll govern the in~on and enforcement of
this Agreement.
Section 6.3 Rights and Remedies Are Cumulative
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other
rights or remedies for the same default or any other default by the other party.
Section 6.4 Inaction Not a Waiver of Default
Any failures or dehys by either psny in asserting any of its rights and remedies as to
any default shall not operate as a waiver of any default or of any such rights or remedies, or
deprive either such party of its right to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any such rights or remedies.
Section 6.S Damares
If a default is not fully cured by the defaulting party as provided in Section 6.1, the
defaulting party shall be liable W the other party for any damages caused by such default,
and the nondefaulting party may thereafter (but not before) commence an action for damages
against the defaulting party with respect to such default.
Section 6.6 Specific Performance
If a default under this Agreement is not fully cured by the defaulting party as
provided in Section 6.1, the nondefaulting party at its option may thereafter (but not before)
commence an action for specific performance of terms of this Agreement.
Section 6.7 Remedies and ]t|mhts Prior to the Close of Finnncin*
A. Termination by the P~rtici~nt
Prior to the close of the financing of the Entertainment Facilities or the Public
Improvements or prior to the issuance of bonds for the Assessment District for the Western
Bypass Corridor, the Participant may tm-minate this Agreement and its obligations hereunder
(subject to Paragraph D below) in the event that:
1. The Agency defaults in the performance of any material obligation
hereunder and such faihtre is not cur~ within the time required by this Agreement;
or
2. Participant does not obtain financing for the Entertainment Facilities on
terms and conditions satisfactory to Participant, and Participant returns the mount, if
any, provided to Participant in accordance with Section 4.2 with interest in the
mount of the interest paid on deposits in the Local AgencyInvestment Fund of the
State of California during the period the Participant held the funds, in which case this
Agreement shall be rescinded in its entirety.
B. Termination by the A~ency
Prior to the close of the financing for the Entertainment Facilities or the Public
Impwvements, whichever occurs first, the Agency may terminate this Agreement and its
obligations thereunder (subject to Paragraph D below) for any of the following reasons:
1. The Participant (or any hwful successor in interest) assigns or attempts
to assign the Agreement or any rights therein or in the Site in viohtion of this
Agreement; or
2. The Participant defaults in the performance of any material obligation
hereunder and such failure is not cured within the time required by this Agreement.
C. Procedure for Termination
In order to terminate this Agreement prior to conveyance of the Site to Participant for
any reason set forth in Paragraph A or B above, the party proposing to terminate shall
deliver written notice of its intent to do at least fifteen (15) days prior to the proposed date of
termination and stating the reasons for termination. The party pwposing to terminate the
Agreement may withdraw the proposed termination or extend the effective date at any time
prior to the effective date of the termination.
D. Consequences of Termination
In the event of termination of this Agreement in accordance with this Section, each
party shall have retain any rights or recourse it may have against the other, except in the
event of a termination in accordance with Paragraph A.2. above.
IAX2:126427.9 Final: August 15, 1995
Section 6.8 Condjtion~ Precedent to Partic~nt's Ohligation~
Participant's obligations under this Agreement are conditioned upon the satisfaction or
the waiver, in Panicipant's sole and absolute discretion, of thc following conditions
pr~lent on or before August 31, 1996:
1. The Agency 8hn]! not be in default in the performance of any material
obligation under this Agreement and such failure is not Cth-~ within any applicable
2. Participant has obtained financing for the Entertainment Facilities upon
terms and conditions reasonably satisfactory to Participant;
3. Agency has obtained, and such tim& shall be available to Participant,
financing for the acquisition and consmlction of the Public Improvements, including
the Western Bypass Corridor, to the reasonable satisfaction of Pafficipant;
4. Participant has obtained the parcels for the Site; and
iS. Participant has obtained all necessary governmental permits and
approvals necessary to perform its obligations under this AgreemenL
In the event any of the foregoing conditions precedent have not been satisfied or waived as
provided above, Participant and Agency shall be relieved of all further rights and obligationS
under this Agreement, except for (i) the Agency's obligation to refund a portion of the design
and construction cost for the Public Improvements as more particu~ly described in Section
4.2.G. shall continue in full force and effect, (ii) Participant shall return the mount, if any,
provided to Participant by Agency under Section 4.2 with interest in the mount of interest
paid on deposits in the Local Agency Investment Fund of the State of California during the
period the Participant held the funds, ('fii) the indemnification provisions of Section 2.4.A.
and B., and (iv) such other provisions as are intended to survive termination of the
Agreement. Notwithstanding the foregoing, Participant shall have all of its available rights
and remedies under this Agreement, at law or in equity in the event Participant terminates
this Agreement as a result of an Agency's default in the performance of any martial
obligations under this Agreement.
ARTICLE VII
SPECIAL PROVISIONS
Section 7,1 Submission of Documents to the Aeency for Approval
Whenever this Agreement requires the Participant to submit plans, drawings or other
documents to the Agency for approval, which shall be deemed approved if not acted on by
the Agency within the specified time, said plans, drawings or other documents shall be
accompanied by a letter stating that they are being submitted and will be deemed approved
unless rejected by the Agency within the stated time. If there is no time specified herein for
such Agency action, the Participant may submit a letter requiring Agency approval or
LAX2:I264ZT.9 Fh-~- ~z~,t B, ~995
rejection of documents within thirty 00) days after submit_don to the Agency or such
documents shall be deemed approved.
Section 7.~ Real ~te Commk~jon
Participant shall pay all claims of broken's, agents or finden, licensed or erallcensed,
and all claims of real estate or other consultants which exist or may arise with respect to the
acquisition of the Site. Agency shall not be liable for any such fees and Participant shall
indemnify Agency, its offica~, employees and agents, from any and all costs, liabilities or
judgments, including attorneys' fees, hatned in defending or paying any such claims.
Agency agrees that it will not incur, and represenU that it has not incurred, claim of
broken, agents or finden, consultants and other professionals with respect to the acquisition
of the Site, except as described in Section 4.8.B.
Section 7.3 Entire At, reement. Waivers & General
A. This Agreement is executed in duplicate originals, each of which is deemed to
be an original. This Agreement includes pages 1 through 29 and Exhibits 1 through 4,
which constitutes the entire understanding and agreement of the parties.
B. This Agreement integrates all of the terms and conditions mentioned herein or
incidcntal hereto, and supersedes all negotiations or previous agreements between the parties
or their predecessors in interest with respect to all or any part of the subject matter hereof,
including but not limited to the Memorandum of Understanding between the parties dated
January 31, 1995. The Memorandum of Understanding between the parties dated January
31, 1995 is hereby terminated and of no further force and effect.
C. All amendments hereto must be in writing executed by the appropriate
authorities of the Agency and the Participant.
D. Both Parties axe sophisticated parties with respect to the matters contained
herein and each have participated with counsel in the drafting of this Agreement.
Section 7.4 Th-ne For Acceptance Of At, reement By A~ency
This Agreement, when executed by the Participant and delivered to the Agency, must
be authorized, executed and delivered by the Agency on or before thirty (30) days after
signing and delivery of this Agreement by Participant or this Agreement shall be void, except
to the extent that the Participant shall consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement. The date of this Agreement shall be
the date when it shall have been signed by the Agency.
LAX2:126427.9 Find: Augtat 1~. 1995 -2~-
IN WYFNESS WffERF~F, the Agency and the Participant have signed this
Agreement as of the date farst written above.
REDEVELOPlViF~NT AGENCY OF THE
CITY OF TEMECULA
By:
RONALD J. PARKS
Chairperson
ATFEST:
JUNE S. GRF~F~K
Secretary
APPROVED AS TO FORM:
PETER M. THORSON
General Counsel
T.Z.B.G, INC.
LAX2:I25427.9 Fim~ Augnat 1~, 1995
ALL=pURpOSE ACKNO~¥t-~DGMPNT
State of California )
Cotlnty of Riverside )
~ August 16 , 1995, before me,
appealed Zev Buffman
Susan W. Jones
[]
personally known to me -OR-
proved to me on the b-~i. of satisfactory evidence to be the person(s) whose name(s)
Ware subscribed to the within instnnnent and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Wimess my hand and official seal.
COMM. ,~ I
PUbliC -- COlfOil110 OF
1,
CAPACITY CLAIMmn
BY SIGNER
[]
tunaDUAL(S)
OFMCER(S) CrrrLE[s]):
President
[]
[]
[]
[]
[]
[]
PARTNER(S)
ATtORNEY-IN-FACT
TRUSTEE(S)
SUBSCRIBING WH'NF_SS
GUARDIAN/CONSERVATOR
OTI~ER:
Chairperson
SIGNER IS REPRF. SEN'lqNG:
Name of person(s) or entity(ies):
T.Z.B.G., Inc.
LUU:n~.9 F~" ^~ u, lws -27-
P, YJ---PURPOSE ACKNOWLI~3'~G~
State of California
County of
, 1995, befor~ me,
[]
[]
personnlly known to me -OR-
proved to me on the bn,~i_~ of satisfacto~ evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Wimess my hand and official seal.
SIGNATURE OF NOTARY
[l
[1
m'DrVmUAL(S)
OmCE~(S) (TXTLE[S]):
CAPACITY CLAIMED
BY SIGNER
[]
[]
[]
[]
[]
[]
PARTNER(S)
ATTORNEY-IN-FACT
TRUSTEE(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
OTHER:
Chairperson
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies):
LAn:n64ZT.9 F-,-.- August xs, ~sss -28-
AII.-PURPO SE ACKNOVv't-~T~G1V~:NT
State of California
County of
,1995, befor~ me,
[]
[]
persovnlly known to me -OR-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executt~! the same in his/her/their authorized capacityCxes), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SIGNATtIRE OF NOTARY
[1
[1
XND~U~S)
OXq=XCE~(S) CnTL~[S]):
CAPACITY CI~
BY SIGNEI~
[]
[]
[]
[]
[]
[]
PARTNER(S)
ATFORNEY-IN-FACT
TRUSTEE(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
OTHER:
Chairperson
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies):
LAX2:I26427.9 Final: August 1t, 1995
ALL-PURPOSE ACKNOWI-~'THSMmNT
Stat~ of California
County of
,1995, before me, , personally
[]
[1
personally known to me -OR-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/~he/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the insU'ument.
Wimess my hand and official seal.
[1
[1
m'DrVmUAL(S)
OmCER(S) CrrrLE[s]):
SIGNATURE OF NOTARY
CAPACITY CIAI1V~D
BY SIGNER
[1
[1
[1
[1
[1
[]
PARTNER(S)
A'ITORNEY-IN-FACT
TRUSTI:J::-(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
OTI~R:
Chairperson
SIGNER IS REPRF~ENTING:
Name of person(s) or entity(ies):
t. AX2:Z2642~.9 F~-~- Aunt ~, t99s -30-
A Y J-PURPOSE ACKNOW't-~r~GI~fF-NT
Sm~ of Calllomb
County of
,1995, before me,
[]
[]
personally known to me -OR-
pwved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Wimess my hand and official seal.
SIGNATURE OF NOTARY
LAX2:I264TI.9 Fial: ~ ~s, l~ -31-
EXHIBIT NO. 1
SITE MAP
MASTER CONDITIONAL USE PERMIT
EXHIBrr NO. 1A
./
SITE MAP
~rBSTSIDB SPECIFIC PLAN
EXHH~lT NO. 2
T,I~vAT, DESCRIFFION OF ~
The area of the Project Site is bounded by the following:
Beginning at the cert~rline of Rancho California Road and the westerly City
Limits; thence, southeasterly along the City Ijrnit line to its intersection with
the centerline of lntenta~ 1S to the centerline of Rancho California Road;
thence, westerly along the centerline of Rancho California Road to the Point of
Beginning.
Approved by:
AGENCY:
By
yfman
uau:m6427.9 F--,. ^uvg u, ~99s -32=
s~:xHsBIT NO. 3
DV-~CRIFrlON OF PURl oIC ~IPRO~
The public impwvements described herein shall include the land acquisition, design,
and construction of the facilities and shall include all associated and incidental facilities
which may or may not be specifically identified within the description.
1, Renovation and t:.Xpansion of Old Town First Street.nridge:
a. Pre-limin~ry design of First Street to its connection with Western
Bypass Corridor to include a Bridge over Murrieta Creek.
b. Obtaining all the permits and approvals which may be required,
including City of Temecula, U.S. Army Corp of Engineers, California Department of
Fish and Game, U.S. Department of Fish and Wild Life, Riverside County Flood
Control and any other permits and appwvals as may be required.
c. Final design and construction of facilities as said design is approved by
the reviewing agencies to include First Street from its intersection with Fwnt Street to
Western Bypass Corridor.
d. Design and construction of all utilities as may be required by the
various utility companies to provide the required services to the proposed development.
2. Old Town Gateway 1 ~ndscaping Pr0j~:
a, Provide trees and other hndscapeing along the westside of Front Street
between Front Street and (Murietta Creek) from Rancho C~lifomia Road to the Post
Office, Street tree phcement shall be in conforrnance with the Old Town Specific
Acquire the necessary right-of-way
Submit the Landscape Plan to the Planning Depmment for review and
d. Cons~uct and install the landscaping in accordance with the Landscape
Plan as appwved.
Old Town Demonstration Block. including the Front Street RepairsfUpFades.
Fwnt Street Reconstruction. Miscellaneous Street Impwvements:
a. The area of impwvement shall include First Street and Main Street.
b. Provide a conceptual design and submit to Planning Department for
review and approval for the following:
LAX2:126427.9
l-~dscaping and Lighting;
Public signage, including Gateway entry sign, directional signs,
and street name polesigns; and
Street improvements to include curb, gutter, sidewalk
Cooardw~nc), paving, streetlighting with sound system, street
furniture to include wood benches, Wash recepticles, newspaper
nck~, mailboxes, bus shelten, phone booths, and drinking
fountains, all in general conformance with the Old Town
Specific Plan, and Circulation Element of the General Plan.
c. Prepare the necessary.plans, specifications for the above scope of work
and submit for review by the City and other interested parties as may be necessary.
d. Construct the facilities as per approved plans.
e. Topography for all of the Old Town shall be provided to facilitate
design and to eliminate potential future drainage problems.
4. Old Town Sewer Improvements:
a. Determine, based on the Ultimate Plan, "Old Town Specific Plan" and
Westside Specific Plan, including Entertainment Facilities, the location of existing and
need for upgrading sanitary sewer facilities, and any new sanitary sewer facilities.
b. Present the report to the I:~t~rn Municipal Water District (EMWD)
and the City for review and appwval.
c. Design the facilities for the Sanitary Sewer Improvements based on the
approved report.
d. Obtain any right-of-way that may be necessary to construct said
improvements.
e. Construct said improvements to the satisfaction of EMWD.
5. Old Town Water System:
a. Determine, based on the Ultimate Plan "Old Town Specific Plan",
Westside Specific Plan and the Entertainment Facilities, the location of existing water
systems, the needed upgrading, and needed new water facilities.
for review.
Present the report to Rancho C~]~ornia Water, City and Fire Marshall
agencies.
Design the facilities as needed and obtain approval by the above
d. Obtain the necessary right-of-way for the proposed improvements.
LAX2:126427.9 Pistol: A~.ust 1t, 199~ -34-
e. Construct said improvements to the ntisfaction of Rancho California
Water District.
6. Storm r~r~in Improvements:
a. Determine the adequacy of the storm drain system as proposed in the
Old Town Specific Plan, i.e., 3rd and 6th Street storm drains, 1-15 to Murrieta
Creek.
b. Design said improvements and obtain all necessary permits for the
installation of said improvements. Permits may include but not be limited to Rivehide
County Flood Control District, U.S. Army Corp of Engineers, California Department
of Fish and Game, and Caltrans.
c. Construct the improvements in accordance with the approvals of all the
above agencies including the City.
d. Provide for the necessary facilities along these systems to accept local
drainage.
7. M~in Street Bridge i~ents
a. Design improvements to the Main Street Bridge to accommodate its use
as a pedestrian bridge and obtain approvals of City and any other necessary agencies.
b. Construct said improvements.
8. Sixth Street Parking improvements
Construct up to seventy C70) parking spaces on the Site which the Agency
owns at Sixth Street and Front Street.
9. Main Street facades and non-conforming sign removal
a. Implement a program for assistance to property and business owners
for the improvement of facades and the removal of non-conforming signs.
LAX2:I2MT].9 Fmsl: ~ 15, 199~ -3~-
k;XBIBIT NO. 4
FORM OF CERTIFICATE OF COMPLETION
Recording Requested by and
T.Z.B.G., Inc.
,California__
CERTIFICATE OF COMPt-ETION
THE R~BEVELOPMENT AGENCY OF THE CITY OF TEMECULA DOES
HEREBY FIND, DETERMINE AND DECLARE THAT:
1. The Board of Directon of the Redevelopment Agency does hereby find that:
A. On ,1995, the Redevelopment Agency of the City of
Temecula ('Agency") and T.Z.B.G, Inc.("Participont") entered into an
Owner-Participation Agreement ("Agreement*) affecting the real ~ described on
Exhibit *A * which is attached hereto and incorporated by this reference; and
B. The Agreement requires the Participant to construct certain Public
Improvements as defined in the Agreement and for Agency to furnish the Participant with
a Certificate of Completion upon completion of the Public Improvements, which certificate
shall be in such form as to permit it to be recorded in the Recorder's Office of the
Riverside County; and
C. Pursuant to said Agreement such certificates shall be conclusive determination
of satisfactory completion of the Public Improvements required by the Agreement; and
D. The Agency has conclusively determined that the construction of the' Public
Improvements have been satisfactorily completed as required by the Agreement.
2. As pwvided in said Agreement, the Agency does hereby certify that the construction
of the Public Improvements as required by the Agreement have been fully and satisfactorily
completed;
3. This Certificate of Completion does not constitute evidence of compliance with or
satisfaction of any obligation of the Participant to any holder of any deed of trust on the Site.
This Certificate of Completion is not a notice of completion as referred to in Section 3093 of
the California Civil Code.
4. Nothing contained in this instrument shall modify in any other way any other
provisions of said Agreement.
-36-
IN WITNESS WHEREOF, the Agency has executed this Certificat~ as of
,19__.
REDE~J~O~ AGENCY OF THE
CITY OF TI~tECIJ]~
By:
ATi'EST:
JUNE S. GPF-EK
Secretary
APPROVED AS TO FORM:
PETER M. THORSON
General Counsel
LAX2:I26~27.9 Final: A~ast IS, 1995
,,s. 1L=PURPOSE ACKNOV~rt -I~rf~GM'ENT
Stat~ of California
County of
, 1995, before m,
, pmonally
[]
[]
personally known to me -0R-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(lea), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
[]
[]
n~DraDUAL(S)
OmCER(S) CrrrL~[s]):
CAPACITY CLAIMI:~
BY SIGNER
[]
[]
[]
[]
[]
[]
PARTNER(S)
ATTORNEY-IN-FACT
TRUSTEE(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
OTHER:
Chairperson
SIGNER IS RF-PKESENTING:
Name of person(s) or entity(ies):
TABLE OF CONTENTS
pAGE
ARTICLE I
Section 1.1
Section 1.2
Section 1.3
Section 1.4
A.
B.
Section 1.5
Section 1.6
ARTICLE II
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
Section 2.7
ARTICLE HI
Section 3.1
Section 3.2
SUBJECT OF AGRI~-MI:~NT ........................ 2
Purpose of Agreement ............................ 2
The Redevelopmerit Plan ........................... 3
The Site ..................................... 3
Parties to the Agreement ........................... 4
The Agency .................................. 4
The Participant ................................. 4
Prohibition Against Change in Participantship,
Management and Control of Participant .................. 4
Contract Documents ............................. 5
DEVFJIDPlVtF~NT OF THE SITE ..................... 5
Scope of Development ............................ 5
Construction Schedule ............................ 6
Project Parking Facilities .......................... 6.
Indemnity and Insurance ........................... 6
City and Other Governmental Agency Permits .............. 8
Antidiscrimination During Construction .................. 8
Certificate of Completion .......................... 9
USE OF THE SITE ............................. 10
Uses ...................................... 10
Project Name to Include 'Old Town Temecula;'
Advertising of General Events ...................... 10
LAX2:I264T/.9 Final: August 1f, 1995 -i-
Section 3.3
Section 3.4
Section 3.5
Section 3.6
Section 3.7
Section 3.8
Section 3.9
Section 3.10
ARTICLE IV
Section 4.1
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
Section 4.8
ARTICLE V
Section 5.1
Section 5.2
Programming for Entertainment Facilities ............... 10
Rent Free Availability of Entertainment Facilities
to Certain City Non-Profit Groups .................... 10
Entertainment Facilities to Provide Educational
Component .................................. 10
Entertainment Facilities Hiring Policies ................. 11
Old Town Festival Square ......................... 11
Agency Guidelines for Consideration of Other
Entertainment Related Facilities ..................... 11
Covenants for Non-Discrimination .................... 12
Continuation of Covenants : 13
FINANCING OF PUBLIC IMPROVElVIF-NTS
AND PAYlV!F~NTS TO AGENCY .................... 14
Responsibilities For Financing Entertainment
Facilities and Public Improvements ................... 14
Construction of Public Improvements by Participant ......... 14
Western Bypass Assessment District ................... 16
Community Facilities District ...................... 16
Relocation of Persons Displaced by the Project ............ 16
User Charge Upon Tickets Sold ..................... 17
Participant Payment of Costs of hereased City
Services Resulting From the Project ................... 17
Reimbursement of Participant and Agency Costs
Incurred Prior to Close of Financing .................. 19
GENERAL PROVISIONS ......................... 20
Notices, Demands and Communications Among
the Parties .................................. 20
Conflicts of Interest ............................. 20
LAX2:I21M27.9 Final: August 15, 1995 -ii-
Section 5.3
Section 5.4
Section 5.5
Section 5.6
Section 5.7
ARTICLE VI
Section 6.1
Section 6.2
A.
B.
Section 6.3
Section 6.4
Section 6.5
Section 6.6
Section 6.7
Ae
B.
C.
D.
Section 6.8
ARTICLE VII
Section 7.1
Section 7.2
Local, State and Federal Laws ...................... 20
Taxes, Assessments, Encumbrances and Liens ............. 20
Enforced Dehy; Extension of Times of Performance ......... 20
Non-liability of Officials and Employees of the Agency ....... 21
Inspection of Books and Records ..................... 21
DEFAULTS AND REMEDIES ..................... 21
Defaults-General ............................. 21
22
Legal Actions ................................
Institution of Legal Actions ........................ 22
22
AppLicable Law ...............................
Rights and Remedies Are Cumulative .................. 22
Inaction Not a Waiver of Default ..................... 22
Damages ................................... 22
Specific Performance ............................ 22
Remedies and Rights Prior to the Close of
23
Financing ...................................
Termination by the Participant ...................... 23
Termination by the Agency ........................ 23
Procedure for Termination ...... ' ................... 23
Consequences of Termination ....................... 23
Conditions Precedent to Participants ObLigations ........... 24
SPECIAL PROVISIONS .......................... 24
Submission of Documents to the Agency for
Approval ................................... 24
Real Estate Commission .......................... 25
LAX2:126427.9 Final: Auguat 15, 199~ -Ill-
Section 7.3
Section 7.4
Entire Agreement, Waivers & General ................. 25
Time For Acceptance Of Agreement By Agency ........... 25
LAX2:126427.9 Final: August 15, 1995
SUMMARY I~ORT
OF THE
OWNER PARTICIPATION AGIH~fENT
BY AND BE'E~V~:~I THE
R~'~EVELOPMENT AGENCY OF THE. CrFY OF TEMECULA
T.Z.B.G., INC., A CALwORNIA CORPORATION
AUGUST 15, 1995
INTRODUCTION
This summary report has been prepared by the Temecula Redevelopmeat Agency
("Agency") in order to describe the proposed Owner Participation Agreement
("Agreement") between the Agency and T.Z.B.G., Inc., a California Corporation
("Participant").
This summary report and the proposed Agreement have been made available for public :'
inspection at the time of first publication of the notice of hearing for the Agreement.
H. PROJECT DESCRIPTION
The proposed Project to be constructed by Participant on the Site consists
components, the *Entertainment Facilities" and the "Public Improvements."
of two
The Entertainment Facilities are described as follows: (1) The Open House; (2) Wild
West Arena; (3) virtual reality theaten; (4) cabaret/playhouse theaters; (5) "quick draw"
and indoor/outdoor exhibitions; (6') restaurants; (7) theme related retail; (8) Old Town
Festival Square, and (9) parking facilities.
Demonstration
reconstruction,
improvements;
improvements.
The Public Improvements are de.sc~bed as follows: (1) renovation and expansion of the
Old Town First Street Bridge; ('2) Old Town Gateway landscaping; (3) Old Town
Block, including Front Front Street
and miscellnneous street Town sewer
(5) Old Town water improvements; and (15) Old Town storm drain
improvements;:, (4) Old
The Public Improvements are estimated to cost $5,987,700 and are to be constructed by
Participant in exchange for a contribution by Agency in a likz amount. Agency funds,
equal to the estimated cost of the Public Improvements, are programmed within the
Capital Improvements Project budget for FY 95/96 adopted by the City Council on July
11, 1995.
Additional public improvements consist of the Main Street Bridge Improvements (at the
Agency's discretion), Sixth Street Parking Improvements and Main Street Facades and
Non-conforming Sign Removal. The estimated costs for these additional public
improvements are $1,025,000 and will be paid for by the Agency. Agency funds, equal
to the estimated cost of the Public Improvements, are programmed within the Capital
Improvements except for the Main Street Bridge, Project budget for FY 95196 adopted
by the City Council on July 11, 1995.
The Project is to be developed within contwis established in the land use cnfi~cmcnts
approved by the City and as required by the Temecula Municipal Code and related hws
governing municipal planning, zoning and subdivision.
m. PROJECT LOCATION
The Entertainment Facilities and the Public Improvements will be located within two
areas described as the 'Old Town Area' and the *Westside Area.'
The Old Town Area is described as *Tourist Core Retail* on the Proposed Land Use
Districts Map of the Old Town Specific Plan approved by Ordinance No. 94-05 of the
City Council of the City of Temecula on February 22, 1994, which is on file in the
office of the City Clerk. The 'Westside Area' is generally located southwesterly of the
Old Town Area and described on the Study Area Map of the Westside Specific Plan
appwved by Ordinance No. 95-08 of the City Council of the City of Temecula on June
27, 1995 which is on ~e in the office of the City Clerk. The Old Town Area and the
Westside Area are specifically described and depicted on Exhibit No. 1 and Exhibit No.
2. The Old Town Area portion of the site is located within the Temecula Redevelopment
3
Project Area 1988-1. The Westside Area portion of the site is located just outside of the
Project Area and will be physically and economically integrated within the Old Town
IV. PARTICIPANT ]~F-~PONSIBILITIES
The following is a summary of Participant's responsibilities under the proposed Owner
Participation Agreement:
The Participant shall assume sole and full responsibility, and all financial risk for
~nan~g the design, construction and operation of the Entertainment Facilities
and the Public Improvements.
Neither the City nor the Agency shall assist in the financing of the Entertainment
Facilities through "conduit financing" or any other means.
In consideration of the payment of the sum of $5,987,700 by Agency to the
Participant, Participant shall design, acquire land, construct and install all of the
Public Improvements, as defined, at its sole risk, cost and expense.
The funding of the Western Bypass Corridor shall be by an assessment district.
Participant agrees to participate in and waives all rights to object to the formation
4
of an assessment district for the Western Bypass Corridor.
Participant shall be solely ~le for all cost overruns or expenses incurred
in building the Public Improvements in excess of the Agency's contribution of
$5,987,700. Should the actual bid and a reasonable and customary construction
management fee result in costs less than $5,987,700, Participant sbn~ reimburse
Agency the difference between actual costs and $5,987,700.
All Public Improvements shall be bid in accordance with the provisions of the
Public Contracts Code and applicable hws; Participant shall pay prevniling
wages for the Public Improvements in accordance with applicable hws.
Participant is solely res~nsible for complying with all requirements for
completion of the Public Improvements required by the land use entitlemenu for
the Project.
Participant agrees to reimburse the actual costs of the City and Agency incurred
in connection with the Project from the financing for the Entertainment Facilities
and/or the Public Improvements with the exception of City and/or Agency staff
time.
H. Participant agrees to the establishment and maintenance of a user charge of 8-
5
3/4 % of the face mount of each ticket sold for Entertainment Project events to
be used for financing the Project for a period of thirty five (35) years. Following
the period of thirty five (35) years from the date of closing of the financing of the
Eutert~nment F~ciHties, an annual fee of $2,000,000 adjusted annually by the
average ticket price adjustment shall be paid to the Agency for an additional 15
years.
The Participant shall include the name 'Old Town Temecula* in the legal and
operating name of the Ente~inment Facilities, in all written and television
advertising and promotional ~, and where commercially practical, radio
adve~ising.
Participant shall: (1) provide the Entertainment Facilities rent free for non-
competing public non-profit use for a minimum of forty (40) days per year;, (2)
include an educational component which will provide opportunities for performing
arts education for local area residents; and (3) make every effort to pwvide
diverse programming reflecting a cross-section of community preferences.
To the extent Innfitted by hw, Participant shall adopt hiring policies for the
Entertainment Facilities which pwvide preference to local area residents.
L. Participant agrees to pay costs of increased City services relating to police, fire
and street maintenance of adjacent streets, if any, resulting from the
Entertainment Project which exceed the public revenues generated dixectly by the
Site in the form of Wansient occupancy taxes, sales taxes, and property tax
M. Participant sb~-l] pay all relocation benefits as required by law.
V. AGENCY RESPONSIBH~ITIES
The following is a summary of the Agency's responsibilities under the terms of the
Agreement:
Agency shall pay the sum of $5,987,700 upon ten days written notice following
a determination by the Agency in its sole and absolute discretion that:
(z)
The financing for the Entertainment Facilities has closed or commitments
are in place assuring the close of financing; and
(2)
Participant has fully executed agreements for the construction of the
Entertainment Facilities and the Public Improvements.
In the event the Paxticipant elects to finance the Public Improvements through a
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community facilities district the Agency and Participant shall negotiate an
amendment to the Agreement to provide for Agency's payment of S5,987,700 for
land acquisition for Participant assuming responsibility for the Public
Impwvements.
Be
Agency will construct additional public improvements consisting of the Main
Street Bridge Improvements (at the discretion of the Agency), Sixth Street
Parking Improvements and Main Street Facades and Non-conforming Sign
Removal at an estimated cost of $1,025,000.
Agency will cause to be initiated and will diligently pursue the formation of a
community facilities district to assist the Participant in financing eligible public
facilities, such financing to be secured solely by property owned by Participant.
Participant shall be solely responsible for all costs of the financing.
Agency agrees to the establishment and maintenance of a user charge of 8-3/4 %
of the face amount of each ticket sold for Entercainment Project events to be used
by Participant to finance the Project for a period of thirty five (35) years.
Without restricting the discretionary powers of the City Planning Commission,
City Council, or Redevelopment Agency, Agency agrees to consult in good faith
with Participant prior to proposing administrative guidelines governing future
entertainment related development and prior to considering future entertainment
related facilities affecting the Old Town Area.
Agency agrees to negotiate with Participant in good faith for the adoption of a
Parking Management Plan for the Old Town Area.
Agency shah assist Participant in obtaining prompt and expeditious processing of
its permit applications on a "fast track" basis...
City will vac~ a portion of street fight of way for the between parcels of the
Site, and it is expected that Patlicipant will own the fight of way upon vac~on.
In the event Participant does not end up owning the fight of way, Agency shall
acquire from the City street fight of way to be vacated in an area not to exceed
8,000 square feet and lease it to Participant for $1.00 per year ff necessary for
the Old Town Festival Square component of the Project. The reuse value of the
area to be acquired and leased will be minimal given the restriction upon the use
as set forth in the Agreement.
Agency will diligently pursue the formation of an assessment district to fund the
costs of land acquisition and construction of the Western Bypass Corridor on or
before January 10, 1996 with the issuance of bonds on or before March 1, 1996.