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ORDINANCE NO. 631-26
AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF MURRIETA, CALIFORNIA , APPROVING A
DEVELOPMENT AGREEMENT WITH FRENCH VALLEY
CROSSINGS, LP AND PHELAN SERVICE STATION, LP TO
EXTEND THE ENTITLEMENTS FOR THE DEVELOPMENT OF
A COMMERCIAL SHOPPING CENTER AT THE SOUTHWEST
CORNER OF WINCHESTER ROAD (HIGHWAY 79 ) AND
CLINTON KEITH ROAD
Summary: This ordinance adopts a Development Agreement for the construction of a shopping center at the southwest corner of Winchester Road (Highway 79) and Clinton Keith Road to extend the project’s entitlements.
WHEREAS, consistent with Murrieta Municipal Code Section 16.54.040(A)(3), French Valley Crossings, LP, a California limited partnership and Phelan Service Station, LP, a California limited partnership (collectively, “Developers”) proposed to enter into a Development Agreement with the City of Murrieta (“City”) to extend the entitlements for the development of a 37,800 square foot commercia l center and private and public infrastructure on the property (collectively, “Project”) owned by Developers . The Project will include a fueling station , convenience store , car wash , and six other retail uses on an undeveloped lot located on approximately 11.40 acres of land at the southwest corner of Winchester Road Hwy 79 and Clinton Keith Road (APNs 963 -060-079 and a portion of 963 -060-077) in Murrieta, California (“Site”); and
WHEREAS, California Government Code Sections 65864 et seq. (“Development Agreement Law”) and Murrieta Municipal Code Chapter 16.54 (“City Development Agreement Ordinance”) authorize the City to enter into binding development agreements for the purpose of providing an enhanced degree of certainty in the development process for both the property owner/developer and the affected public agency; and
WHEREAS, on September 9, 2020, the City Planning Commission adopted Resolution No. PC-2020-11 approving Tentative Parcel Map (TPM) 35036 (Case No. TPM -2019-1721), a Development Plan (2018-1720), Conditional Use Permit (2018 -1722) and Variance (2020-2039) each as conditioned thereby pursuant to the Conditions of Approval (collectively, “Entitlements”) to approve the development of the Project on the Site . T he City Planning Commission approvals included consideration of previously adopted Environmental Impact Report State Clearinghouse No. 200503 1028 (“EIR”) and the various addendums thereto and adopted an Addendum to the EIR (collectively with previously approved EIR and addenda, “CEQA Approvals”); and
WHEREAS, without the approval of the Development Agreement (“DA”), the Project will expire September 9, 2026. Pursuant to the Developers’ request, the City and Developer s have negotiated and agreed to the DA, attached hereto as Exhibit A, which will extend the term of the Entitlements through September 9, 2036; and
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WHEREAS, the Project will benefit the City by providing new restaurants, retail uses, and a gas station for residents and City visitors to patronize which will generate sales tax payable to the City; and
WHEREAS, at a duly -noticed public hearing on March 25, 2026, the City Planning Commission considered the approval of the DA and a proposed categorical exemption under CEQA (“Categorical Exemption”), and at the conclusion of the hearing and after considering the evidence and arguments submitted by City staff, the Developer s, and all interested parties, found the DA consistent with the goals and policies of the General Plan and the zoning code and adopted Resolution No. P C-2026-01 recommending the approval of the DA and the Categorical Exemption; and
WHEREAS, the City Council held a duly noticed public hearing regarding the DA on April 21, 2026, and considered the recommendation of the City Planning Commission and the evidence, testimony, and arguments submitted by City staff, the Developer s, and all interested parties; and
WHEREAS, the City Council finds and determines that all actions required of City pr ior to approval of the DA by the City Council have been duly and regularly taken and all legal prerequisites of the adoption of this Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MURRIETA, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are hereby incorporated into this Ordinance as set forth herein.
SECTION 2. That, as conditioned, the Project conforms to the regulations contained within Title 16, the Murrieta Development Code, and with the adopted elements of the Murrieta General Plan.
SECTION 3. Based upon the evidence presented, the City Council makes the following findings of fact for the adoption of the DA attached as Exhibit A pursuant to Murrieta Municipal Code Section 16.54.070:
a. The Development Agreement is in the best interests of the city.
The proposed Development Agreement is in the best interests of the City because it provides certainty regarding the continued implementation of a previously approved commercial development that will provide retail services, employment opportunities, and tax-generating uses for the community. The Agreement facilitates the orderly development of the Site by allowing the approved project additional time to proceed while maintaining all previously adopted conditions of approval and development standards. The Development Agreement also benefits the City by encouraging investment in commercial development at a prominent intersection along Winchester Road (State Route 79) and Clinton Keith Road, a key commercial corridor within the community.
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Implementation of the approved commercial center will contribute to the City’s economic base through the provision of retail services and the generation of sales tax and other local revenues that support municipal services. By providing development certainty while preserving the City’s regulatory authority through the existing conditions of approval and applicable municipal regulations, the Development Agreement promotes economic development, supports the City’s long -term planning objectives, and therefore serves the best interests of the City.
b. The Development Agreement is consistent with the objectives, policies, general land uses, and programs of the general plan, any applicable specific plan, and this development code.
The proposed Development Agreement is consistent with the objectives, policies, general land uses, and programs of the Murrieta General Plan and the provisions of the Murrieta Development Code because the Agreement does not modify the Project, land use designation, zoning classification, or development standards applicable to the Site. The Development Agreement only extends the duration of previously approved entitlements from 2020 for the French Valley Crossings commercial center, which were approved by the Planning Commission after a comprehensive review for consistency with the General Plan and Development Code.
c. The Development Agreement is compatible with the surrounding development .
The Site is designated Commercial in the Murrieta General Plan and zoned Regional Commercial (RC) under the Development Code. The Project, consisting of a commercial retail center including fueling, retail, and service uses, was previously determined to be consistent with these designations and applicable development standards. The Development Agreement does not alter those approvals and therefore maintains consistency with the City’s adopted land use framework and regulatory requirements.
The Agreement facilitates the development of the Project which is located at a significant regional travel intersection in southwest Riverside County - Clinton Keith Road and Winchester Road. The east side of Winchester Road at Clinton Keith Road was the developed under the jurisdiction of Riverside County and includes similar commercial development such as fast food restaurants, a neighborhood commercial center consisting of a Stater Brothers grocery store, CVS Drugstore, Starbucks, and other ancillary retail uses like banks, gas stations, and smaller industrial and office buildings. The Development Agreement facilitates similar retail and commercially oriented uses and is therefore compatible with surrounding development.
d. The Development Agreement will not adversely affect public health, safety, or welfare.
The proposed Development Agreement is internally consistent with the provisions of the Murrieta Development Code because it implements the procedures and authority established in Murrieta Municipal Code Chapter 16.54, which allows the City to enter into development agreements consistent with State law. The Agreement extends the duration of the previously approved entitlements while maintaining all applicable Development Code standards and regulations governing the project. Further, t he Agreement facilitates the orderly development of the Site by allowing the approved
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project additional time to proceed while maintaining all previously adopted conditions of approval and development standards. The Project also does not increase the severity of any environmental impacts not previously known.
The proposed Development Agreement will not adversely affect the public health, safety, or general welfare because it does not modify the approved project, increase development intensity, or introduce new land uses beyond those previously evaluated and approved by the City. The Development Agreement solely extends the duration of previously approved entitlements for the French Valley Crossings project.
Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15162, the City has determined that none of the conditions requiring preparation of a subsequent or supplemental environmental document have occurred. There are no substantial changes to the project, no substantial changes in the circumstances under which the project is undertaken, and no new information of substantial importance that would result in new significant environmental impacts or a substantial increase in the severity of previously identified impacts.
The previously certified 2005 Environmental Impact Report for the Marquis/Westmar Commercial Project (SCH No. 2005031028), together with subsequent addenda prepared for the French Valley Crossings project, adequately evaluated the environmental effects of the approved development, including those related to public health, safety, and welfare. The Development Agreement does not alter those conclusions, and all previously adopted mitigation measures and conditions of approval remain applicable.
Accordingly, the approval of the Development Agreement resulting in an extension of the entitlement period for 10 additional years will not affect public health, safety, or welfare.
SECTION 4. Based upon all oral and written reports and presentations made by City staff and members of the public, including any attachments and exhibits, the City Council hereby finds that the proposed approval of the DA and the construction of the Project does not require further analysis under the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.) ("CEQA"), pursuant to CEQA Guidelines 151 62, because the DA does not alter the approved Project and is only extending the term of the Entitlements which were previously analyzed under CEQA and said CEQA analysis remains adequate because no new environmental impacts will be created as a result of the approval of the DA.
SECTION 5. The City Manager and City Clerk, and their designees, are authorized and directed to take such actions and execute such documents and certifications as may be necessary to implement and affect execution, recordation and enforcement of this Ordinance and the DA.
SECTION 6. Pursuant to Government Code Section 65868.5, the City Clerk of the City shall record a copy of said DA with the County Recorder within 10 days after the City signing the DA.
SECTION 7. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent
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jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each and every section, subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 8. This Ordinance shall become effective on the thirty -first (31st) day after its passage and adoption, and within fifteen (15) days after its final passage and the City Clerk shall cause it to be posted and published in a newspaper of general circulation, printed, published and circulated in the City in the manner required by law and shall cause a copy of this Ordinance and its certification, to be entered in the Book of Ordinances of the City.
PASSED AND ADOPTED this ___ day of ________, 2026.
Jon Levell, Mayor
ATTEST:
Cristal McDonald, City Clerk
APPROVED AS TO FORM:
Tiffany J. Israel, City Attorney
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )§
CITY OF MURRIETA )
I, Cristal McDonald, City Clerk of the City of Murrieta, California, do hereby certify that the foregoing Ordinance No. 631-26 was duly passed and adopted by the City Council of the City of Murrieta at the regular meeting thereof, held on the ___th day of _______, 2026, and was signed by the Mayor of the said City, and that the same was passed and adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Cristal McDonald, City Clerk
I, Cristal McDonald, City Clerk of the City of Murrieta, California further certify that Ordinance No. 631-26 was duly published according to law and the order of the City Council of said City and the same was so published in Press Enterprise, a newspaper of general circulation on the following date(s):
Introduced Ordinance:
Adopted Ordinance:
In witness whereof, I have hereunto subscribed my name this __ day of ______________, 2026.
Cristal McDonald, City Clerk
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Murrieta
One Town Square
Murrieta, CA 92562
Attention: City Clerk
APN: 963-060-086 (Space Above For Recorder’s Use)
Exempt from Recording Fees pursuant to Government Code Section 27383
DEVELOPMENT AGREEMENT
between
CITY OF MURRIETA,
a California general law city and municipal corporation and
French Valley Crossings, LP
a California limited partnership
and
Phelan Service Station, LP
a California limited partnership
Reference dated as of __________, 2026
TABLE OF CONTENTS
Page
French Valley Development Agreement -i-
RECITALS ..................................................................................................................................................1
1. DEFINITIONS AND EXHIBITS. ...................................................................................................2
1.1 Definitions............................................................................................................................2
1.2 Exhibits. ...............................................................................................................................6
2. GENERAL PROVISIONS. .............................................................................................................6
2.1 Binding Effect of Agreement. ..............................................................................................6
2.2 Term. ....................................................................................................................................7
2.3 Assignment and Transfer. ....................................................................................................7
2.4 Voluntary Amendment or Cancellation of Agreement. .......................................................7
2.5 Termination. .........................................................................................................................7
2.6 Representations and Warranties. ..........................................................................................8
2.7 Notices. ................................................................................................................................9
3. DEVELOPMENT OF THE PROPERTY. .....................................................................................10
3.1 Vested Right to Develop. ...................................................................................................10
3.2 Effect of Agreement on Land Use Regulations; Development Exactions; Development Plan; Submittal of Subsequent Development Approvals. ...........................10
3.3 Intentionally Omitted. ........................................................................................................11
3.4 Timing of Development; Public Improvements Phasing. ..................................................11
3.5 Changes and Amendments to Existing or Subsequent Development Approvals. .............11
3.6 Reservations of Authority. .................................................................................................12
3.7 Subsequent Development Approvals. ................................................................................12
3.8 Modification or Suspension by State or Federal Law. .......................................................13
3.9 City Acquisition of Offsite Real Property Interests for Public Right of Way Purposes. ............................................................................................................................13
3.10 Legally Binding Contract; Enforceability. .........................................................................13
3.11 Future Use of CEQA Approvals. .......................................................................................13
3.12 Extension of Term of Map and Other Development Permits. ...........................................14
4. PUBLIC BENEFITS. .....................................................................................................................14
4.1 Project Objectives. .............................................................................................................14
4.2 Credit/Reimbursement for Offsite Improvements. ............................................................15
4.3 Offsite Improvements. .......................................................................................................15
5. OPERATING MEMORANDUM. .................................................................................................15
6. REVIEW FOR COMPLIANCE. ...................................................................................................15
6.1 Periodic Review. ................................................................................................................15
6.2 Procedure. ..........................................................................................................................16
6.3 No Waiver. .........................................................................................................................16
6.4 Proceedings for Modification or Termination. ..................................................................16
6.5 Hearing on Modification or Termination. ..........................................................................16
6.6 Certificate of Agreement Compliance. ..............................................................................17 Page
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7. NO CROSS-DEFAULTS. .............................................................................................................17
8. DEFAULT AND REMEDIES. ......................................................................................................17
8.1 Remedies in General. .........................................................................................................17
8.2 Specific Performance. ........................................................................................................18
8.3 Release. ..............................................................................................................................18
8.4 City’s Termination of Agreement or Exercise of Other Remedies Upon Developer’s Default. ..........................................................................................................18
8.5 Developer’s Termination of Agreement or Exercise of Other Remedies Upon City’s Default. ....................................................................................................................19
8.6 Informal Resolution. ..........................................................................................................19
9. THIRD PARTY LITIGATION. ....................................................................................................19
9.1 Defense of Third Party Litigation. .....................................................................................19
9.2 Extension of Term. .............................................................................................................19
10. MORTGAGEES. ...........................................................................................................................20
10.1 Mortgagee Protection. ........................................................................................................20
11. INSURANCE; INDEMNIFICATION. ..........................................................................................20
11.1 Insurance. ...........................................................................................................................20
11.2 Indemnification. .................................................................................................................22
12. MISCELLANEOUS PROVISIONS. .............................................................................................23
12.1 Recordation of Agreement. ................................................................................................23
12.2 Entire Agreement. ..............................................................................................................23
12.3 Estoppel Certificates. .........................................................................................................24
12.4 Severability. .......................................................................................................................24
12.5 Interpretation and Governing Law. ....................................................................................24
12.6 Section Headings. ..............................................................................................................24
12.7 Singular and Plural. ............................................................................................................24
12.8 Including. ...........................................................................................................................24
12.9 Time of Essence. ................................................................................................................24
12.10 Calendar Periods. ...............................................................................................................24
12.11 Waiver. ...............................................................................................................................24
12.12 No Third Party Beneficiaries. ............................................................................................25
12.13 Permitted Delays. ...............................................................................................................25
12.14 Successors in Interest. ........................................................................................................25
12.15 Counterparts. ......................................................................................................................25
12.16 Jurisdiction and Venue. ......................................................................................................25
12.17 Project as a Private Undertaking. .......................................................................................25
12.18 Further Actions and Instruments. .......................................................................................25
12.19 Eminent Domain. ...............................................................................................................26
12.20 Attorneys’ Fees. .................................................................................................................26
12.21 Authority to Execute. .........................................................................................................26 French Valley Development Agreement -1-
DEVELOPMENT AGREEMENT
(French Valley Crossings)
This Development Agreement (as further defined in Section 1.1, “Agreement”) is entered into between the CITY OF MURRIETA, a California general law city and municipal corporation (as further defined in Section 1.1 “City”); and French Valley Crossings, LP, a California limited partnership and Phelan Service Station, LP a California limited partnership, as tenants-in-common (collectively, and as further defined in Section 1.1 , “Developer”). This Agreement is dated as of _____________, 2026 for reference only. This Agreement will not become effective until the “Effective Date” (defined in Section 1.1). City and Developer are entering into this Agreement in reliance on the facts set forth in the Recitals, below.
RECITALS
A. Developer owns approximate ly 10.153 acres of land located west of Winchester Road Hwy 79 and south of Clinton Keith Road in the City of Murrieta, California (APN 963-060- 086) (“Property”) legally described on the attached Exhibit A and depicted on the attached Exhibit B (“Site Plan ”). Developer intends to develop the Project (defined below) on the Proper ty. A portion of the Property was acquired by Developer from City as documented in Certificate of Compliance with the California Subdivision Map Act dated April 1, 2025 and recorded on April 7, 2025 in the official records of Riverside County as Instrument No. 2025-0102672.
B. On September 9, 2020, the City Planning Commission adopted Resolution No PC- 2020-11 with respect to the Property, approving Tentative Parcel Map (TPM) 35036 (Ca se No.
TPM-2019-1721), a Development Plan (DP-2018-1720), Conditional Use Permit (2018-1722) and Variance (VAR-2020-2039) each as conditioned thereby pursuant to the Conditions of Approval.
The foregoing development approvals authorized a nine (9) parcel map to b e developed with a 37,800 square foot commercial center including 7 buildings and private and public infrastructure on the Property. Developer intends to construct a fueling station, a convenience store, a car wash and six other retail uses on the Property including fast food restaurants, fast casual restaurants and restaurants with drive -thrus, in up to three phases ( as further defined in Section 1.1, “Project”).
The Planning Commission approval included consideration of previously adopted Environmental Impact Report State Clearinghouse No. 2005031028 (“ EIR”) and the various addendums thereto and adopted an Addendum to the EIR in 2020 (collectively with previously approved EIR and addenda, “CEQA Approvals”).
C. On September 15, 2021, the City of Murrieta Planning Division acted administratively to approve Substantial Conformance (SC) 2021-2294 with respect to Parcel 2 of approved TPM 35036 to permit a vehicle fueling station thereon as conditioned and to reaffirm the effectiveness of the other Development Approvals, including the Conditions of Approval.
D. Developer submitted an additional substantial conformance request (SC -2023- 0003) in 2025 to extend the time period for the Development Approvals described above and to modify building sizes and uses. SC-2023-0003 was approved by the City on February 12, 2026.
E. City is authorized under Section 7 of the California Constitution and Government Code Section 65864, et seq. (“Development Agreement Law”) to enter into binding development French Valley Development Agreement -2-
agreements with persons having legal or equitable interests i n real property for the development of that property.
F. Developer has applied to City for approval and enactment of this Agreement in order to preserve the Development Approvals for the Property while addition al development approvals are under consideration and to permit adequate time for phasing and cons truction following such approvals. The City Planning Commission (“Planning Commission”) and the City Council (“City Council”) have conducted public hearings and have found that this Agreeme nt is consistent with City’s General Plan (“ General Plan ”), including the General Plan Land Use Element.
G. On ________, 2026, the Planning Commission made CEQA findings and adopted Resolution No.____-__ recommending that the City Council approve an ordinance approving this Agreement.
H. On ________, 2026, the City Council made CEQA findings and adopted Ordinance No.____-__ (“Enacting Ordinance”), which approved this Agreement.
I. By adopting the Enacting Ordinance, the City Council elected to exercise its governmental powers with regard to the Development of the Pro perty to assure that previously approved map, permits and entitlements for the Project remain in effect to permit development of the Project as approved by the City. This Agreement binds City and future Cit y Councils and limits the City Council’s future exercise of its police power s in exchange for the public benefits conveyed by Developer to the City. This Agreement has been found by the City Council to be fair, just and reasonable and in the best interests of City’s citizens and the health, safety and welfare of the public.
J. All of City’s prior actions and approvals with regard to this Ag reement complied with all applicable legal requirements related to notice, public hearings, findings, votes, and other procedural matters.
K. The Development of the Property in accordance with this Ag reement will provide substantial benefits to City. This Agreement eliminates uncertainty in planning and provides for the orderly development of the Property, ensures the progressive installat ion of necessary public improvements to serve the Project, and serves the purposes of the Development Agreement Law.
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following initially capitalized terms used in this Agreement have the following meanings:
“Agreement” means this Development Agreement and all attachments and exhibits thereto. “Annual Monitoring Report” has the meaning ascribed to the term in Section 6.1. “Applications” has the meaning ascribed to the term in Section 3.7.b.
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“CEQA” means the California Environmental Quality Act, codified at Pub lic Resources Code Section 21000 et seq. and the CEQA Guidelines, 14. C.C.R. Section 15000 et seq. “CEQA Approvals” has the meaning ascribed to the term in Recital B. “Certificate of Agreement Compliance ” or “ Certificate” has the meaning ascribed to the term in Section 6.6.
“Certificate of Occupancy ” means a document issued by City’s Building Department, certifying a building’s compliance with applicable building codes and othe r laws, and indicating it to be in a condition suitable for occupancy.
“City” means the City of Murrieta, a California general law city and municipal corporation, its successors and assigns, and its related or subordinate boards, commissions, and entities. “City Council” means the City Council of the City of Murrieta. “Claims or liabilities” has the meaning ascribed to the term in Section 11.2(a). “Conditions of Approval” means the Conditions of Approval attached as Exhibit C to this Agreement and incorporated herein by this reference.
“Developer” is defined in the preamble to this Agreement and the respec tive successors and assigns of each of French Valley Crossings, LP, Phelan Service Station, LP and B.I. B riggs, LLC, provided that the term Developer shall not include any End User. “Developer Transferee” shall mean a Person to which Transferor has conveyed fee title to a portion of the Property and has assigned the obligations under this Agreeme nt as further described in Section 2.3.
“Development” means the subdivision and improvement of the Property for the purposes of constructing or reconstructing the public and private structures , improvements and facilities comprising the Project, including: grading; the construction or reconstruction of infrastructure and public and private facilities related to the Project, whether located within or outside the Property; the construction or reconstruction of buildings and structures; and, the installation of landscaping. “Development” does not i nclude the maintenance of any building, structure, improvement or facility after its construction and completion.
“Development Agreement Law” has the meaning ascribed to the term in Recital E. “Development Approvals” mean all site -specific (meaning specifically applicable to the Property only and not generally applicable to some or all other properties within the City) plans, maps, approvals, permits and other entitlements applicable to the De velopment of the Propert y, including: specific plans and specific plan amendments; tentative and final subdivision and parcel maps; conditional use permits, public use permits and site plans; zoning; variances; and, grading and building permits. The term De velopment Approvals does not include (i) rules, regulations, policies, and other enactments of general application within the City author ized to be applicable
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to the Property pursuant to this Agreement, or (ii) any matte r where City has reserved authority under this Agreement.
“Development Exactions” mean any monetary or non -monetary exaction or mitigation measure, including a Development Impact Fee, imposed by City in connection with a Development Approval or in connection with the granting of any other right, privilege or approval pertaining to the Project, including requirements for land dedication or for public c onstruction either within or outside the Property.
“Development Impact Fee” means a monetary payment authorized by Government Code Section 66001, et seq., imposed legislatively on a broad class of development projects. The City may apply subsequently adopted development impact fee increases to development of the Property provided the same are lawfully imposed, are applied uniformly to development either throughout the City or within a defined area of benefit that includes the Property, are not applied on an ad hoc basis solely to the Project, and do not physically prevent development of the Property for the uses and to the density and intensity of development set forth in this Agreement. “Development Plan” means the proposed plan for Development of all or a portion of the Property pursuant to the Existing Development Approvals and Subsequent D evelopment Approvals, in accordance with the Existing Land Use Regulations and applicable Subsequent Land Use Regulations, subject to the Reservations of Authority. “Director” means the Director of Development Services.
“Effective Date” means the date which is thirty (30) days following the second reading and adoption of the Enacting Ordinance.
“EIR” has the meaning ascribed to the term in Recital B. “Enacting Ordinance” has the meaning ascribed to the term in Recital H. “End User” means any Person that acquires or leases a parcel within the Property with the intent to operate a retail or wholesale business thereon, provided that, unless otherwise determined by Developer, an “End User” shall not be a Developer Transferee. “Existing Development Approvals” mean all Development Approvals approved o r issued by City prior to adoption of the Enacting Ordinance, including the Development Approval s described in Recitals B through D, Recital G and Recital H. “Existing Land Use Regulations” mean all Land Use Regulations in effect as of the second reading and adoption of the Enacting Ordinance as the same may have been modified or superseded pursuant to the Existing Development Approvals or this Agreement. “General Plan” has the meaning ascribed to the term in Recital F. “Including” or “including” has the meaning ascribed to the term in Section 12.8.
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“Land Use Regulations ” mean all ordinances, resolutions, codes, rules, regulations and official written policies of the City and/or any subsidiary district of the City and/or any joint powers authority or council of governments of which the City is a member which affect, govern, or apply to land development and use of the Property, including those governing: the permitted use of land; the density or intensity of use; subdivision requirements; the maximum height and size of proposed buildings; Development Ex actions; design, improvement and construction standards and specifications applicable to the Development of the Property; and the reservation or dedication of land for public purposes, all as may be modified or supplemented p ursuant to this Agreement. “Land Use Regulations” do not include any ordinance, resolution, code, rule, regulation or official policy governing: the conduct of businesses, professions, and occupations; taxes and assessments; the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; or the exercise of the power of eminent domain. “MMRP” means the mitigation monitoring and reporting program for assessing and ensuring compliance with required mitigation measures, which was approved by the City in conjunction with the Planning Commission’s approval of the Existing Development Approvals. “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust, or any other security-device lender, and their successors and assigns. “Notice” has the meaning ascribed to the term in Section 2.7.a. “Offsite Property” has the meaning ascribed to the term in Section 3.9. “Operating Memorandum” has the meaning ascribed to the term in Section 5. “Parties” mean City and Developer, collectively.
“Party” means either City or Developer, individually.
“Permitted Delay” means delays in a Party’s performance due to: changes in local, state or federal laws or regulations; strikes; delays caused by governmen tal agencies in processing and issuing permits and approvals; third party litigation, a development moratorium (including a water or sewer moratorium) or the actions of other public agencies t o prohibit Development of the Property; civil commotion, fire, acts of God, war, lockouts, riots, floods, ea rthquakes, epidemic, quarantine, freight embargoes, and/or failure of contractors to perform; any third-party court action to set aside or modify the Development Approvals; or, other ci rcumstances beyond a Party’s reasonable control and which substantially interfere with eith er Party’s ability to perform its obligations under this Agreement. “Permitted Delays” do not include delays attri butable to Developer’s inability to obtain funds or financing or due to changes in market conditi ons or demands, whether or not foreseeable as of the Effective Date. “Person” means and refers to any association, corporation, governmental entity or agency, individual, joint venture, joint -stock company, limited liability company, partnership, trust, unincorporated organization, or other entity of any kind, including City and Developer. “Planning Commission” means the Planning Commission of the City of Murrieta.
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“Project” means the Development of the Property in accordance with the Development Plan as further described in Recital B, as the Development Plan may be further defined, enhanced or modified in accordance with this Agreement.
“Property” has the meaning ascribed to the term in Recital A. “Reservations of Authority” mean the rights reserved to City under Section 3.6. “Site Plan” has the meaning ascribed to the term in Recital A. “Subsequent Development Approvals” mean all Development Approvals approved by City subsequent to the Effective Date in connection with development of the Property that are adopted in accordance with the Development Plan or in accordance with Subsequent Land Use Regulations adopted consist ent with the requirements of this Agreement, including the Re servations of Authority.
“Subsequent Land Use Regulations” mean all Land Use Regulations adopted and effective after the Effective Date that are adopted in accordance wit h the Development Plan and the requirements of this Agreement, including the Reservations of Authority. “Term” has the meaning ascribed to the term in Section 2.2. “Transfer” has the meaning ascribed to the term in Section 2.3. “Transfer Property” has the meaning ascribed to the term in Section 2.3. “Transferor” has the meaning ascribed to the term in Section 2.3.
Other initially capitalized terms used in this Agreement but n ot otherwise set forth in Section 1.1, above, will have the meaning given to those terms where they first appe ar in this Agreement.
1.2 Exhibits. The following documents are attached to a part of this Agreement:
Exhibit A Legal Description of Property
Exhibit B Site Plan
Exhibit C Conditions of Approval
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is made subject to this Agreement and the Development of the Property may be carried out in accordance with this Agree ment. The benefits and burdens of this Agreement touch and concern the Property and bind Developer and all future owners of all or any portion of the Property.
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2.2 Term. The term (“Term”) of this Agreement will commence on the Effective Date and will expire on the tenth (10th) anniversary of the Effective Date , unless terminated sooner by operation of some other provision of this Agreement or extended in accordance with Section 9.2.
2.3 Assignment and Transfer . Developer may sell, lease, license, hypothecate, transfer, or assign (any or all of the foregoing, individually and collectively, “ Transfer”) the Property and in connection therewith assign this Agreement in whole or in part to any Person at any time provided that no partial Transfer may violate the Subdivision Map Act, Government Code Section 66410, et seq.); provided that any Transfer shall be subject to City’s reaso nable review and approval, including a review of any unmet conditions of development, which approval shal l not be unreasonably withheld and provided further that no assignment of its rights and interests under this Agreement to a Person may be made by Developer unless made together w ith the Transfer of all or a part of the Property (“Transfer Prop erty”). City’s City Manager’s approval or disapproval must be by Notice and must be given within thirty (30) days after the Transferor submits Notice to City’s City Manager describing the propose d Transfer and the proposed Developer Transferee. If City fails to provide Notice within the thirty (30) day period, then City’s approval will be deemed to be irrevocably given and the Transferor and Developer Transferee may rely on City’s deemed approval.
Following any Transfer to a Developer Transferee, the Developer Transferee shall assume in writing all obligations of the transferor Developer (“ Transferor”) pertaining to the Transfer Property and shall be the “Developer” with respect to the Transfer Property and the portion of the Project developed or to be developed thereon (including satisfaction of conditions of approval and other entitlement requiremen ts with respect thereto) and once said writing has been reco rded against the Transfer Property, Transferor thereupon automatically shall be released from any and all obligations under this Agreement with respect to the Tran sfer Property arising from and after the date of the Transfer. If requested by Transferor, the City shall promptly memorialize such release in writing in recordable form. Notwithstanding the foregoing, no End User shall have any rights under this Agreement and Transferor shall, notwithstanding the sale or leas e of any parcel comprising a portion of the Property to an End User continue to be responsi ble to perform all obligations under this Agreement with respect to each parcel owned or leased by an End User following such Transfer.
2.4 Voluntary Amendment or Cancellation of Agreement. This Agreement may be voluntarily amended or cancelled in whole or in part only with the written conse nt of City and all Persons holding fee title to that portion of the Property to which the amendment or cancellation will apply. The amendment or cancellation process must comply with Government Code Section 65868.
This Section 2.4 does not limit the operation of Government Code Section 65869.5.
2.5 Termination. This Agreement will automatically terminate upon the occurrence of any of the following events:
a. The expiration of the Term.
b. The entry of a final judgment setting aside, voiding or annulling the City Council’s adoption of the Enacting Ordinance.
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c. The adoption of a referendum measure overriding or repealing the Enacting Ordinance.
d. The completion of the Project, as evidenced by the issuance of al l required Certificates of Occupancy for the Property and the acceptance of all required public dedications. e. Upon a Party’s election to terminate this Agreement in accordance with Section 8.4 or Section 8.5. If the terminating Party under Section 8.5 does not own the entirety of the Property, then the termination will apply only to that portion of the Property owned by the terminating Party.
2.6 Representations and Warranties.
a. City represents and warrants to Developer, as follows:
i. City is a public body, corporate and politic. City is authorized to enter into this Agreement pursuant to Government Code Section 65864, et seq., and the execution and delivery of this Agreement by City has been fully authorized by all re quisite actions on the part of City.
ii. City’s execution and delivery of this Agreement and City’s performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a party or by which it is bound. iii. City has not received any notice of, or knows of any basis for, any actual or pending litigation or proceeding by any Person against City with respect to the Property or this Agreement.
b. Developer represents and warrants to City, as follows:
i. Developer is either the owner of fee simple title to the Pr operty or has an equitable interest in the Property, including an option to purchase the Property. ii. Developer’s execution and delivery of this Agreement and Developer’s performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by whic h it is bound.
iii. Developer is not the subject of bankruptcy or receivership proceedings and is not insolvent.
iv. Developer has not received any notice of, or knows of any basis for, any actual or pending litigation or proceeding by any Person against Developer with respect to the Property or this Agreement.
v. Each entity that constitutes the Developer is a duly organized limited partnership established within and in good standing under the laws of the State of Cali fornia, as applicable, and is authorized to do business in the State of California. The execution and delivery
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of this Agreement by Developer has been fully authorized by all requisite a ctions on the part of Developer.
2.7 Notices.
a. As used in this Agreement, the term “ Notice” means any request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other requi red or permitted communication.
b. All Notices must be in writing and will be considered given:
i. When delivered in person to the recipient named below. ii. On the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope, postage prepaid, as either registered or certified mail, return receipt requested.
iii. On the date of delivery shown in the records of a reputable delivery service (e.g. UPS or Federal Express).
c. All Notices must be addressed as follows:
City:
City of Murrieta
One Town Square
Murrieta, CA 92562
Attn: Justin Clifton, City Manager
Email:
[email protected]
With a copy to:
City of Murrieta
One Town Square
Murrieta, CA 92562
Attn: Scott Agajanian
Email:
[email protected]
With a copy to:
Aleshire & Wynder, LLP
1 Park Plaza, Suite 1000
Irvine, CA 92614
Attn: Tiffany J. Israel, City Attorney
Email:
[email protected]
If to Developer:
French Valley Crossings LP
Phelan Service Station, LP
c/o J & T Management
P.O. Box 1958 or (for overnight
deliveries) 139 Radio Road
Corona, CA 92879
Attn: Jack Kofdarali
Email:
[email protected]
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With a copy to:
Hepner & Myers LLP
1241 Johnson Avenue, Suite 360 San
Luis Obispo, CA 93401
Attn: Amanda Myers
Email:
[email protected]
d. Either Party may, by Notice given at any time, require subsequent Noti ces to be given to another Person or to a different address, or both. Notices given b efore receipt of Notice of change of address will not be invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Vested Right to Develop. Subject to the terms of this Agreement, Developer has the legally vested right to develop the Property in accordance with, and to extent of, t he Development Plan, the Development Approvals, the Existing Land Use Regul ations, applicable Subsequent Development Approvals, applicable Subsequent Land Use Regulat ions, and this Agreement. Except as otherwise provided in this Agreement, the p ermitted uses of the Property shall include, without limitation, construction of 34,560 sq ft of commercial buildings on seve n pads accommodating a full -service car wash (5,724 sq ft), four multi -tenant retail buildings with end-cap drive-thru restaurants (totaling 19,590 sq ft), two drive-thru “fast food” restaurants (6,060 sq ft), a convenience store (3,186 sq ft), a gas stati on and installation of all improvements and infrastructure reasonably incident thereto, including as set fo rth in Section 3.5, and the density or intensity of use of the Property and the maximum height and size of proposed buildings shall be as set forth i n the Development Plan. Provisions for reservation or dedication of land for p ublic purposes applicable to the Property shall be those set forth in the Existing Development Approvals and in any Subsequent Development Approvals approved by Developer and the City.
3.2 Effect of Agreement on Land Use Regulations; Development Exact ions; Development Plan; Submittal of Subsequent Development Approvals. a. Except as otherwise provided under the terms of this Agreement, including the Reservations of Authority, (i) the rules, regulations, and official policie s governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to the Development of the Property shall be the Existing Land Use Regulations and (ii) no amendment, revision of, or addition to the Development Plan that would affect the Project or increase the obligations or decrease the rights of Owner hereunder or under the Development Plan shall be made without Owner’s consent, whether adopted or approved by the City Council or any office, board commission or other agency of City.
b. In connection with any Subsequent Development Approval, City will exercise its discretion in accordance with the Development Plan and this Agreement, including the Reservations of Authority in Section 3.6.
c. The Development Plan for the Project may require the processing of Subsequent Development Approvals. The City will accept for process ing, review and action all
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applications for Subsequent Development Approvals, and such applications will be processed in the normal manner for processing such matters in accordance wit h the Existing Land Use Regulations. The Parties acknowledge that City is not oblig ated in any man ner to approve any Subsequent Development Approval, or to approve any Subsequent Development Appr oval with or without any particular condition, except that City’s actions concerning Subs equent Development Approvals must be consistent with the Developmen t Plan and Existing Land Use Regulations, subject to the Reservations of Authority. Notwithstanding the foregoing, City agrees that, if an application for any Subsequent Development Approval is in substanti al conformance with the Existing Development Approvals and this Agreement, the approval of such appl ication shall not be unreasonably withheld. Processing of Subsequent Development Approvals or changes in the Development Approvals or Development Plan made pursuant to Develop er’s application will not require an amendment to this Agreement; however, upon their approval by the City, all Subsequent Development Approvals or changes in the Development Approvals or De velopment Plan will be subject to and covered by this Agreement.
3.3 Intentionally Omitted.
3.4 Timing of Development; Public Improvements Phasing. a. Nothing in this Agreement is a covenant to develop or construct the Project.
The Parties acknowledge that Developer cannot predict if, when, or the rate at which phases of the Project will be developed. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the litigants in that case to provide for the timing of development resulted in a later adopted initiativ e restricting the timing of development to prevail over the litigants’ agreeme nt. The Parties intend to cure that deficiency by providing that Developer has the right to develop the Project, or not develop the Projec t, in the order, at the rate, and at the times that Developer, in its sole and absolute discretion, deter mines to be appropriate, subject only to any Development Plan timing or phasing requirements. b. Required public improvements may be tied to certain phases of the Project.
The schedule for provision of these improvements, as they rel ate to a particular phase, will be governed by the Existing Development Approvals, Subsequent Development Approvals, t he CEQA Approvals, the MMRP, and this Agreement.
3.5 Changes and Amendments to Existing or Subsequent Development Approvals. a. The Parties acknowledge that the passage of time may demonstrat e that changes to the Existing Development Approvals or Subsequent Development Appr ovals may be necessary or appropriate. If the Parties determine that changes are necessary or appropriate, such changes may be made by mutual consent of the Parties in accord ance with Government Code Section 65868, and may be approved on behalf of City as follows:
i. By the Director in the case of minor changes or findings of substantial conformance, as authorized in Murrieta Municipal C ode Section 16.56.025 and the Director may impose conditions consistent with Murrieta Municipal Code Section 16.56.050. ii. By the Planning Commission in the case of any other changes not subject to paragraph (i), above.
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3.6 Reservations of Authority . Any contrary provision in this Agreement notwithstanding, the following Subsequent Land Use Regulations will apply to the Project:
a. Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for S ubsequent Development Approvals or for monitoring compliance with any Subsequent Development Approvals granted or issued.
b. Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other procedural matter. c. Regulations which do not conflict with the Development Plan or this Agreement. To the greatest extent possible, these regulations must be applied and construed to provide Developer with all of the rights and assurances provided under this A greement. For all purposes pursuant to this Agreement generally, and this paragraph ( c) specifically, an ordinance, resolution, initiative, referendum, moratorium or other regulation will be deemed to conflict with the Development Plan and this Agreement if the ordinanc e, resolution, initiative, referendum, or regulation seeks to, whether as part of a specific or general enactment that applies to the Property or Project: (i) limit or reduce the density, intensity, square footage, height or size of structures or type of development on the Property; (ii) regulate the rate, timing or seque ncing of the development of the Property in any manner; (iii) require any additional on -site or off -site improvements not required by the applicable Land Use Regulations or Development Approvals to be constructed or paid for by Developer or a subsequent owner of the Propert y; or (iv) restricting the use of the Property in any manner or degree other than as set forth in the applicable Land Use Regulations and Development Approvals.
d. Regulations that conflict with the Development Plan if Developer has given its written consent to those regulations.
e. Federal, state, County, and multi-jurisdictional laws and regulations which City is required to enforce against the Property or the Development of the Property, provided that if there is any preemption of this Agreement or City’s authori ty to perform hereu nder or any frustration of the ability of any Party to comply with the terms of this Agreement as a result of such law or regulation, the Parties shall make a reasonable att empt to modify or amend this Agreement to comply with such applicable state or fede ral law or regulation in a manner that is least disruptive to the purpose and intent of this Agreement.
The Parties acknowledge that City is restricted in its authority to limit its police powers by contract.
This Agreement will be construed, contrary to its stated te rms if necessary, to reserve to City all those police powers that cannot be restricted by contract.
3.7 Subsequent Development Approvals.
a. When acting on Subsequent Development Approvals, City may apply only the Existing Land Use Regulations and those Subsequent Land Use Regulations that are permitted under the Reservations of Authority. Any Subsequent Development Approval will be automatically vested under this Agreement.
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b. Upon Developer’s request, City will accept and diligently process applications for Subsequent Development Approvals. City will exercise re asonable good faith efforts to expedite the processing of the Subsequent Development Approvals applications to ensure that those applications are promptly considered by the approving authority. Upon satisfactory completion by Developer of all required preliminary actions and payment of a ppropriate processing fees, if any, City shall proceed to process and check all appli cations for Project development and building approvals within the times set forth in the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Cal ifornia Government Code), the Subdivision Map Act (Division 2 ( commencing with Section 66410) of Title 7 of the California Government Code), and other applicable provisions of law, as the same may be amended from time to time. City shall employ all lawful actions capable of being undertaken by City to promptly (i) accept all complete applications f or Subsequent Development Approvals (collectively, “Applications”) and (ii) process and take action upon the Applications in accordance with applicable law with a goal of competing the first review or plan check within four weeks and the second and third review or plan check within two weeks; provided ho wever, that City shall not be deemed in default under this Agreement should such time frame(s) not be met.
Furthermore, the City and Developer teams shall convene, as necessary, a telephonic or in-person meeting with the relevant City departments and personnel to resolve open items, subject to City’s availability, subject to the Developer’s payment of applicable Ci ty fees for project expediting services.
3.8 Modification or Suspension by State or Federal Law . If a state or federal law or regulation which is enacted after the Effective Date prevents the Parties’ compliance with any of this Agreement’s provisions, then that provision will be modified or suspe nded to the extent and for the time necessary to achiev e compliance with the conflicting state or federal law. This Agreement’s remaining provisions will continue unaffected. The P arties will amend this Agreement to preserve, to the greatest extent possible, the benefits that would arise to the Parties under this Agreement but for the conflicting state or federal law. Upon the repeal of the conflicting state or federal law or upon the occurrence of any circumstance that removes their effect upon this Agreement, this Agreement’s provisions will be automatically r estored to their full original form and any amendment that the Parties may have entered into under this Section 3.8 will terminate.
3.9 City Acquisition of Offsite Real Property Interests for Pu blic Right of Way Purposes. In any instance where Developer is required by any Development Approval or Land Use Regulation or this Agreement to construct any public improvement on land not owned by Developer, City and Developer shall cooperate in acquiring the necess ary legal interest (“ Offsite Property”). All costs of acquisition shall be the responsibility of Developer.
3.10 Legally Binding Contract; Enforceability. It is the intent of the City and Developer that this Agreement is a legally binding contract which, unless stated otherwise herein, shall prevail over the provisions of any subsequently enacted moratorium, statute, ordinance, limitation or other measure, enacted by City , and whether or not such initiative, moratorium, referendum, statute, ordinance, limitation or other measure relates, in whole or in part to the Project.
3.11 Future Use of CEQA Approvals. The Parties understand that the CEQA Approvals are intended to be used in connection with each of the Existing Development A pprovals and Subsequent Development Approvals needed for the Project. City agrees t o use the CEQA
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Approvals in connection with the processing of any Subsequent Development Approval, except as may be otherwise required by the Reservations of Authority or state or federal law, including CEQA.
3.12 Extension of Term of Map and Other Development Permits. a. Pursuant to Govt. Code Section 66452.6(a) the duration of all tentative maps, including TPM 35036, filed by Owner with respect to the Property or any portion th ereof shall automatically be extended, and remain in effect, for the Term, as the same may be extended from time to time, such that all tentative maps and/or parcel maps remain in effect for no less than the expiration date of the Term, and shall also be extended by any other extension(s) granted under the Subdivision Map Act and/or City ordinance consistent with the Subdivision Map Act. b. Pursuant to Govt. Code Section 65863.9 and as an exercise of its police power, the City further declares that each of the Existing Development Permits are and remain in effect for the term of TPM 35036 as extended by this Agreement and are deemed as of the Effective Date to be “used” as such term is defined in the Conditions of Approval (General It em 3) and accordingly automatically remain in effect for the Term. c. City hereby covenants that except as is authorized by Section 3.5 or Section
3.6 of this Agreement, City shall not impose conditions on the extension of any maps or p ermits affecting the Property during the Term.
4. PUBLIC BENEFITS.
4.1 Project Objectives. The Project accomplishes the City’s goals and policies set forth in the General Plan by achieving the following objectives:
a. Ensure the development of the Property consistent with applicable goals and policies of the City set forth in the General Plan.
b. Expand economic development and facilitate job creation in the City b y establishing new retail uses on vacant land in a developing area. c. Assist the region in achieving jobs/housing balance region -wide by attracting new businesses to the City, providing additional job opportunities in a housing rich area, and thereby providing a more equal jobs-housing balance in the Riverside County/Inland Empire area, which will reduce the need for members of the local workforce to commute outside the area for employment.
d. Construction of an attractive mixed -use retail development, which meets the local demand for neighborhood serving retail and entertainment uses in the City and throughout the region.
e. Implement the type and amount of retail uses at the Property that are viable based on market demand.
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f. Accommodate new development in a phased, orderly manner that i s coordinated with the provision of necessary infrastructure and public improvements. g. Provide for uses that will generate tax revenue for the City i ncluding increased property and sales tax, in order to support the City’s ongoing municipal operations.
4.2 Credit/Reimbursement for Offsite Improvements . The Parties acknowledge and agree that Developer is making Project improvements that are covered in whole or in part by the Development Impact Fee program. The Parties further ackn owledge and agree that in accordance with policies adopted from time to tim e by City, Developer may be entitled to a credit and/or reimbursement to offset Developer’s Development Impact Fee obl igation, as determined by City.
City and Developer shall enter into a Development Impact Fee credit/reimbursement agreement for any Proj ect improvements that exceed Developer’s Development Impac t Fee obligation before commencement of construction of any improvements for which Developer desires a development impact fee credit or reimbursement.
4.3 Offsite Improvements. Developer shall construct all offsite public improvements required by the Project Planning, Public Works, and Engineering Conditions of Approval attached hereto as Exhibit C, as may be modified by a Subsequent Development Approval, prior to receiving a final certificate of occupancy.
5. OPERATING MEMORANDUM.
The Parties desire to retain a certain degree of flexibili ty with respect to the details of the Project and with respect to those items covered in the general terms of this Agreement. If and when the Parties find that minor changes or minor adjustments are necessary or appropriate and do not modify (a) the Term; ( b) the uses allowed on the Property; ( c) provisions for the reservation or dedication of land; (d) conditions, terms, restrictions or requirements for Subsequent Discretionary Approvals; (e) the de nsity or intensity of use of the Property or the maximum height or square footage of proposed buildings or other structures or improvements; or ( f) any Development Exactions, they shall effectuate such minor changes or minor adjustments through a writt en operating memorandum (“Operating Memorandum ”) approved in writing by Developer and the Director, which upon request from Developer shall be in a recordable form. The authority to enter into an Operating Memorandum is hereby delegated to the Director who is hereby authorized to execute the same without further Planning Commission or City Council action. No such Operating Memoranda shall constitute an amendment to this Agreement requiring public noti ce or hearing and are considered ministerial clarifications.
6. REVIEW FOR COMPLIANCE.
6.1 Periodic Review. The Director will review this Agreement annually, on or before each anniversary of the Effective Date, as required by California Government Code Section 65865.1 and Murrieta Municipal Code Section 16.54.100 to ascertain Developer’s good faith compli ance with the terms of this Agreement as set forth in an annual monitoring report (“Annual Monitoring Report”). Appropriate fees to fund the Annual Monitoring Report, which may not exceed the City’s actual costs of reviewing Developer’s compliance with the te rms of this Agreement, shall be paid by Developer.
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6.2 Procedure.
a. During a periodic review, Developer will be required to demonstrate good faith compliance with this Agreement.
b. Upon completion of a periodic review, (i) if the Director fin ds that Developer has complied in good faith with this Agreement, then the review wil l be concluded or (ii) the Director shall notify the Planning Commission if th e Director concludes based upon substantial evidence that the Developer has not complied in good faith compliance with the terms of this Agreement.
c. Upon receipt of notice from the Director pursuant to Section 6.4a.i., the Planning Commission shall determine whether to recommend that t he matter be referred to City Council. If the Planning Commission does not so recommend, then the review will be concluded. d. If the matter is referred to City Council by Planning Commissio n, the City Council may make a preliminary finding that Developer has not complied in good faith wit h this Agreement. Thereafter, following Notice and opportunity to cure as provided under Sec tion 8.4, the City Council may modify or terminate this Agreement in acco rdance with Section 6.4 and Section 6.5.
6.3 No Waiver. Failure of City to conduct an annual review will not constitute a waiver by City of its rights to otherwise enforce the provisions of this Agreement nor will Developer have or assert any defense to such enforcement by reason of any such f ailure to conduct any annual review(s).
6.4 Proceedings for Modification or Termination.
a. If Developer fails to cure, or to commence to cure, as applicable, the matters constituting the basis for the City Council’s preliminary finding under Section 6.2.d as required by Section 8.4 , then City may proceed to modify or terminate this Agreement fo llowing the procedures set forth in this Section 6.4 and in Section 6.5. City must hold a noticed public hearing concerning the modification or termination and provide Developer with Notice of the hearing. The Notice must include the following:
i. The time and the place of hearing, which must be no less than thirty (30) days following the date of the Notice;
ii. The specific action, whether amendment or termination, which City proposes to take; and
iii. Such other information as is reasonably necessary to inform Developer of the nature of the proceeding and the facts supporting City’s preliminary finding under Section 6.2.d.
6.5 Hearing on Modification or Termination . At the time and place set for the public hearing described in Section 6.4, Developer must be given an opportunity to be heard and present witnesses and evidence on its behalf. If, following the conclusion of the public hea ring, the City
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Council finds, based upon substantial evidence in the record of the publ ic hearing, that Developer has not complied in good faith with this Agreement, then the City Council may terminate or modify this Agreement and impose any conditions it determines as a re reasonably necessary to protect City’s interests, provided that any termination shall only be carried out i n accordance with the requirements of Section 8.4. The City Council’s decision will be administratively final and subject to judicial review under Code of Civil Procedure Section 1094.5.
6.6 Certificate of Agreement Compliance. If, at the conclusion of a special or periodic review, Developer is found to be in compliance with this Agreement, then, upon De veloper’s written request, City will issue a “Certificate of Agreeme nt Compliance” (“ Certificate”) to Developer stating that, after the most recent periodic or special review, this Agreement remains in effect and Developer is not in default of this Agreement. The Certificate must be in recordable form, contain information necessary to communicate co nstructive record notice of the finding of compliance, state whether the Certificate is issued af ter a periodic or special review, and state the anticipated date of the next periodic review. Developer ma y record the Certificate with the Riverside County Recorder.
7. NO CROSS-DEFAULTS.
City acknowledges that Developer may Transfer all or porti ons of the Property to other Persons in accordance with Section 2.3. City further acknowledges that title to all or portions of the Property may become vested in Mortgagees or a Mortgagee’s s uccessor as a result of foreclosure, or the acceptance of a deed in lieu of foreclo sure, by a Mortgagee. City agrees that defaults under this Agreement by an owner of a portion of the Property will not be a def ault as to any other portion of the Property. In other words, a default under this Agreement by a Transferor with respect to its obligations pertaining to that portio n of the Property retained by it following a Transfer or with respect to obligations arising prior to th e date of Transfer will not constitut e a default as to any Person other than Transferor, will not permit City to exercise a ny remedy under this Agreement or otherwise with respect to any other portion o f the Property other than that portion owned by Transferor and shall not affect any success or Developer’s rights or obligations under this Agreement. Similarly, a default by any successor D eveloper with respect to its obligations pertaining to the portion of the Property owned by that successor Developer will not constitute any Transferor’s default or permit City to exercise any remedy under this Agreement or otherwise as to any portion of the Property other than the portion owned by the defaulting successor Developer and shall not affect any Transferor’s rights or obligations unde r this Agreement. The Parties agree that, if more than one Person holds title to the Property, then the rights and obligations of the Persons holding title to the Property are the distinct and several obligations of each Person.
8. DEFAULT AND REMEDIES.
8.1 Remedies in General . The Parties acknowledge that neither Party would have entered into this Agreement if it were to be liable for monetary damages under this Agreement. In general, and subject to those procedural prerequisites required under the D evelopment Agreement Law or this Agreement, each of the Parties may pursue any remedy at l aw or equity available for the breach of this Agreement, except that neither Party will be liable in monetary damages (other than attorneys’ fees under Section 12.20) to the other Party, or to a ny successor in interest of that
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Party, or to any other Person. Each Party covenants not to sue for monetary damages or claim any monetary damages related to any of the following:
a. Any breach of this Agreement or for any cause of action that arises out of this Agreement; or
b. Any taking, impairment or restriction of any right or interest a rising under this Agreement; or
c. Any dispute regarding the application or interpretation of this Agreement.
Nothing in this Agreement shall preclude either Party from seek ing payment of sums due to it pursuant to this Agreement (including the right of Developer to obtain credit or repayment for improvements pursuant to Section 4.2, repayment of sums paid by Developer to City if it is determined that such sums were paid in excess or in error).
8.2 Specific Performance. The Parties acknowledge that specific performance and other non-monetary relief are particularly appropriate remedies fo r the enforcement of this Agreement for the following reasons:
a. Money damages are unavailable against the Parties.
b. Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once Develope r has begun to implement this Agreement. After such time, Developer may be precluded from other options it may have had with regard to the Property. Moreover, Developer has invested significant time and resources in the planning and processing of the Project. Developer will be investin g even more time and resources in implementing the Project in reliance upon this Agreement and it is not possible to determine the sum of money that would adequately compensate Developer if City were to breach its obligations.
8.3 Release. Except for the right to seek repayment of sums paid by Developer to Ci ty described in Section 8.1 and the right to recover attorneys’ fees under Section 12.20, Developer, for itself, its successors and assignees, releases City, its officials, officers, agents and employees from any and all monetary claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including any claim or liability ba sed upon Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance that seeks to impose any monetary liability whatsoever upon City because it entered into this Agreement or because of the terms of this Agreement.
8.4 City’s Termination of Agreement or Exercise of Other Remedies Upon Developer’s Default. Subject to compliance with Sections 6.4 and 6.5 , City may terminate or modify this Agreement upon Developer’s failure to perform any materi al duty or obligation under this Agreement. City may terminate or modify this Agreement or exercise its other remedies only after providing Notice of default to Developer setting forth the nature of the default a nd the actions, if any, required to cure the default and only if ( a) Developer has failed to take the actions and materially cure the default within sixty (60) days after its receipt of the Notice, or ( b) Developer has failed within sixty (60) days to commence the actions necess ary to cure the default and
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thereafter diligently proceed to cure the default if the default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time.
8.5 Developer’s Termination of Agreement or Exercise of Other Remedies Upon City’s Default. Developer may terminate this Agreement or exercise its o ther remedies upon City’s failure to perform any material duty or obligation under this Agreement. Developer may terminate this Agreement or exercise its other remedies only after providing Notice of default to City setting forth the nature of the default and the actions, if any, required by City to cure the default and only if (a) City has failed to take such actions and materially cure the default within sixty (60) days after its receipt of the Notice or ( b) City has failed within sixty (60) days to commence the actions necessary to cure the default and thereafter diligently proceed to cure the default if the default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time.
8.6 Informal Resolution . During the administration and implementation of this Agreement, the Parties recognize that good faith disagreements ma y arise between City staff and Developer. In the event that a dispute arises, the Parties will meet and confer in a good-faith attempt to resolve the dispute.
9. THIRD PARTY LITIGATION.
9.1 Defense of Third Party Litigation. City shall promptly notify Developer in writing of any claim, action or proceeding filed and served against City to challenge, set aside, void, annul, limit or restrict the approval and continued implementation a nd enforcement of this Agreement, including challenges of the environmental review of the Project, any Development Approval and/or this Agreement conducted pursuant to the California Environmental Qualit y Act. Developer and City agree to use good faith, commercially reasonable efforts to confer and coo perate with one another with respect to such third party litigation. Developer shall defen d (with legal counsel of City’s selection, reasonably acceptable to Developer), indemnify and hold harmless City, its agents, officers and employees from any such claim, action or proceeding, and shall indemnify City for all costs of defense and/or judgment obtained in any such action or proceeding; provided, however, if Developer elects, in its sole discretion, not to defend the action (preferring to either allow judgment to be entered or to enter into a settlement with plaintiff(s) which declares this Agreement to be void, annulled, or which limits or restricts this Agreement), Developer shall so notify City in writing and City shall then have the option, in its sole discretion, of defending the action at its cost. In the event this Agreement, as a result of a third party challenge, (a) is voided or annulled, this Agreement shall terminate and be of no further force or effect as of the date such judgment or s ettlement and (b) is limited or restricted in such a manner that the intent and p urposes of this Agreement cannot be implemented as mutually desired by the Parties, then unless otherwise agreed by the Parties in writing, this Agreement shall be of no further force or effect as of the date such judgment or settlement.
9.2 Extension of Term. Anything in this Agreement to the contrary notwithstanding, the Term (and any extension thereof under Section 2.3) will automatically be extende d by the number of days in the period commencing on the date of filing of any claim, action, or proceeding of the type described in Section 9.1 and ending on the date that the claim, action, or proceeding is either settled or fully and finally resolved in City’s and Developer’s fa vor, as evidenced by the expiration of all appeal periods with no further appeal being filed or the issuance of a full, final,
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and non-appealable judgment or decision. City will execute, in reco rdable form, any instrument which Developer may reasonably require to evidence the extension.
10. MORTGAGEES.
10.1 Mortgagee Protection.
a. This Agreement does not prevent or limit Developer, in its s ole discretion, from encumbering the Property or any portion or any improvement thereon with an y mortgage, deed of trust or other security device. City acknowledges that a Mortgagee may require Agreement interpretations and modifications. City will meet with Dev eloper and the Mortgagee’s representatives to negotiate in good faith with regard to any requested interpret ation or modification. City may not unreasonably withhold its consent to any re quested interpretation or modification. All Mortgagees will be entitled to the following rights and privileges:
i. Developer’s breach of this Agreement will not defeat, render invalid, diminish or impair the lien of any mortgage made in good faith and for value. ii. Upon a Mortgagee’s written request, City will provide a copy of any Notice of default given to Developer concurrently with the Notice to Develop er. The Mortgagee will have the right, but not the obligation, to cure the default within any remai ning cure pe riod allowed Developer under this Agreement.
iii. Any Mortgagee who comes into possession of the Property or any portion of it pursuant to foreclosure of the Mortgagee’s secur ity instrument or its acceptance of a deed in lieu of foreclosure will take the Property or portion thereof subject to this Agreement. Any other provision of this Agreement to the contrary notwithstanding, no Mortgagee will have any obligation to perform any of Developer’s obligations or to guarantee their performance. However, if any of Developer’s obligations are conditions precedent to City’s obligations, then Developer’s obligations will continue to be conditions precedent to City’s performance of its obligations.
11. INSURANCE; INDEMNIFICATION.
11.1 Insurance.
a. Types of Insurance.
i. Public Liability Insurance – Prior to Construction . Prior to commencement of construction by Developer on the Property, Developer shall at its sole cost and expense keep or cause to be kept in force for the mutual benefit of City and Developer broad form commercial general public liability insurance agai nst claims and liability for personal injury or death arising from the use, occupancy, disuse or condition of the Property, improveme nts or adjoining areas or ways, affected by such use of the Property or for propert y damage, providing protection of a least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate coverage plus an Umbrella Liability Policy for One Millions Dollars ($1,000,000) for bodily injury, death or property damage combined for any one accident or occurrence, which limits shall be subject to reasonable increases in amount as City may reasonably require from time to time.
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ii. Public Liability Insurance – During Construction . During construction by Developer on the Property, Developer shall at its sole c ost and expense keep or cause to be kept in force for the mutual benefit of City and Developer broad for m commercial general public liability insurance against claims and li ability for personal injury or death arising from the use, occupancy, disuse or condition of the Property, improvements or adj oining areas or ways, affected by such use of the Property or for property damage, providing protection of a least Five Million Dollars ($5,000,000 ) per occurrence for bodily injury, death or property damage combined for any one accident or occurrence, which limits shall be subject to reasonable increases in amount as City may reasonably require from time to time. iii. Worker’s Compensation – Prior to Construction . Developer shall also furnish or cause to be furnished to City evidence reasonabl y satisfactory to it that any contractor with whom Developer has contracted for the performance of any w ork for which Developer is responsible hereunder carries workers’ compensation insurance as required by law. iv. During Construction - Commercial Auto. Insurance Services Office Form Number CA 0001 coverage Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage.
v. During Construction - Insurance Contractor’s Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if the Project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
vi. Other Insurance. Developer may procure and maintain any insurance not required by this Agreement, but all such insura nce shall be subject to all of the provisions hereof pertaining to insurance and shall be for the benefit of Cit y (to the extent applicable) and Developer.
vii. Insurance Policy Form, Sufficiency, Content and Insurer . All insurance required by express provisions hereof shall be carried only by re sponsible insurance companies licensed and admitted to do business by California, rated “A -” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VIII or better, unless waived by City. All such policies shall contain language, to the extent obtainable, to the effect t hat (i) any loss shall be payable notwithstanding any act of negligence (excepting willful and intentional violations of law) of City or Developer that might otherwise result in the forfeiture of the insurance, (ii) the insurer waives the right of subrogation against City and against City’s agents and representatives; (iii) the policies are primary and noncontributing with any insurance that may be carried b y City; and (iv) the policies cannot be canceled or materially changed except after thirty ( 30) days’ written notice by the insurer to City or City’s designated representative. Develop er shall furnish City with copies of all such policies promptly on receipt of them or with certificates evidencing the insurance. City shall be named as an additional insu red on all policies of insurance (other than Workers’ Compensation) required to be procured by the terms of this Agreement. The City’s Risk Manager, or its designee, acknowledges and agrees that the insurance requirements above h ave been established based on anticipated use, activities, and conditions of the Property. In the event the City’s Risk Manager reasonably determines that a new or unreasonable use, activity, or condition
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of the Property, improvements or adjoining areas or ways, affected by such us e of the Property under this Agreement creates an increased or decreased risk of loss to the City than what the Parties hereby acknowledge to be duly satisfied by the insurance requirements above, De veloper agrees that the minimum limits of the insurance policies required by this Section 11.1 may be changed accordingly upon receipt of written notice from the City’s Admin istrative Services Director or designee; provided that Develop er shall have the right to appeal a determination of increa sed coverage to the City Manager of City within twenty (20) days of receipt of notice from the City’s Risk Manager.
viii. Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to City, in the manner required for notices, copies of certificates of all insurance policies required hereunder together with evidence satisfactory to City of payment required for procurement and maintenance of each policy within the following time limits:
(A) For insurance required above, within thirty (30 days) after the Effective Date.
(B) For any renewal or replacement of a policy already in existence, at least ten (10) days before the expiration or replacement of the existing policy.
(C) If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish City with required proof that that insurance has been procured and is in force and paid for, such failure or refusal shall be a default hereunder.
11.2 Indemnification.
a. General. The Developer shall indemnify the City and its officers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property , losses, costs, expenses, penalties, obligations, errors, omissions, or liabilities, including attorneys’ fees and costs (herein “claims or liabilities”) that may be asserted or claimed by any Person arising out of or in connection with the work, operations, or activities by Developer o r its officers, agents, employees, or contractors (including subcontractors), upon the Property or related to or arising out of the approva l of this Agreement, the Existing Development Approval or Subsequent Development Approvals; i. The indemnifying Party will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and ex penses, including reasonable legal costs and attorneys’ fees incurred in connection therewith. ii. The indemnifying Party will promptly pay any judgment rendered against the indemnified Party or its officers, agents, or employees for any such claims or liabilities arising out of or in connection with its foregoing indemnity and will save and hold the indemnified Party, its officers, agents, and employees harmless from any failure to so pay any such judgment.
If the indemnified Party recovers any attorneys' fees, expert witness fees , costs, interest, or other amounts from the third party or third parties asserting claims or liabilities, the indemnifying Party shall be entitled to retain the same in an amount not to exceed p ayments made pursuant to its
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indemnification obligation (provided such Party has fully performed its indemn ity obligations hereunder).
iii. In the event the indemnified Party, its officers, agents, or employees is made a party to the action or proceeding filed or prosecuted against fo r such damages or other claims arising out of or in connection with the work, operations, or activities of the indemnifying Party under this Agreement, the indemnifying Party agrees to pay the indemnified Par ty, its officers, agents, or employees any and all reasonable out -of-pocket costs and expenses actually incurred by the indemnified Party, its officers, agents, or employees in such action or proceeding, including by not limited to reasonable legal costs and attorneys’ fees. b. Exceptions. The indemnities and releases of this Section 11.2 shall not include claims or liabilities to the extent and degree arising f rom the negligence or willful misconduct of any or all of the indemnified Party and its officers, agents and employees. c. Loss and Damage . Except as otherwise set forth in this Agreement, City shall not be liable for any damage to property of Developer or of others l ocated on the Property, nor for the loss of or damage to any property of Developer or of others by theft or otherw ise.
Except as otherwise set forth in this Agreement, City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Property or from the pipes or p lumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Property, or by any other cause of whatsoever nature. d. Period of Indemnification. The obligations for indemnity under this Section
11.2 shall begin upon the Effective Date and shall survive termination of this Agreement. e. Waiver of Subrogation. Developer agrees that it shall not make any claim against, or seek to recover from the City or its officers, agents, servants, or employees, for any loss or damage to the Developer or to any person or property, except as specifically provided hereunder and the Developer shall give notice to any insurance carrier of the foregoing waiver of subrogation, and obtain from such carrier, a waiver of right to recovery against the City, its officers, agents and employees.
f. Survival of Provisions . The indemnity provisions set forth in this Section shall survive termination or cancellation of this Agreement as to matters arising prior to the termination or cancellation of this Agreement.
12. MISCELLANEOUS PROVISIONS.
12.1 Recordation of Agreement . This Agreement and any amendment, termination or cancellation of it will be recorded with the Riverside County Recorder by the City Clerk in accordance with Government Code Section 65868.5.
12.2 Entire Agreement. This Agreement contains the entire understanding and agreement of the Parties. There are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to in this Agreement. Parole evidence will not be admissible to interpret this Agreement.
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12.3 Estoppel Certificates. Within thirty (30) days following a Party’s written request, and at no cost to the requesting Party, the other Party will certify in writing that, to its knowledge:
a. This Agreement is in full force and effect and is binding upon the certifying Party.
b. This Agreement has not been amended or modified, except as expressly described in the estoppel certificate.
c. The requesting Party is not in default of its obligations under this Agreement, and that there have been no events that with the passage of time, the giving of notice, or both, would constitute the requesting Party’s default under this Agreement, except as expressly described in the estoppel certificate.
12.4 Severability. Every provision of this Agreement is a separate and independent covenant. If any provision is, or the application of the provision in certain circumstances is, to any extent, found to be invalid or unenforceable for any reason whatsoever, then the remaind er of this Agreement, or the application of that provision to circumsta nces other than those to which it is invalid or unenforceable, will not be affected. The Parties wi ll negotiate in good faith any amendments or operating memoranda necessary to cure any invalidity or unenforceability.
12.5 Interpretation and Governing Law. This Agreement and any dispute concerning it will be governed and interpreted in accordance with California’s procedural a nd substantive laws, without regard to its conflicts of laws principles. This Agreement will be construed as a whole according to its fair language and common meaning. The rule of construction that ambiguities in a document are to be resolved against the drafting party may not be employed in inte rpreting this Agreement. Each Party acknowledges that it was represented b y counsel in th is Agreement’s negotiation and preparation.
12.6 Section Headings . All section headings and subheadings are inserted for convenience only and do not affect this Agreement’s construction or interpretation.
12.7 Singular and Plural. The singular of any word includes the plural.
12.8 Including. Unless the context requires otherwise, the term “including” m eans “including, but not limited to.”
12.9 Time of Essence. Time is of the essence as to the performance of any obligation as to which time is an element.
12.10 Calendar Periods. All references to “years”, “quarters”, “months” and “days” are references to calendar years, quarters, months and days.
12.11 Waiver. A Party’s failure on any one or more occasions to insist upon st rict compliance by the other Party, or a Party’s failure on any one or more occasions to exercise its rights upon the other Party’s default, is not a waiver of that Party’s right to demand strict compliance by the other Party on any future occasion.
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12.12 No Third Party Beneficiaries. This Agreement is entered into for the sole protection and benefit of the Parties and their successors and assigns. Except as provi ded in Section 10 or with respect to a Developer Transferee, no other person or entity has any right of action based upon this Agreement.
12.13 Permitted Delays. The period of a Permitted Delay will commence to run on the date the Permitted Delay begins. The period of the Permitted Delay w ill end when the circumstances giving rise to the Permitted Delay are elimina ted or mitigated , provided that with respect to third party litigation, Permitted Delay shall be deemed to have occurred during the entire pendency of the litigation. The Term of this Agreement and each obligation of the Developer shall be extended on a day for day basis for each day of Permitted Delay . The Party alleging the Permitted Delay will exercise commercially reasonable eff orts to eliminate or mitigate the circumstances giving rise to the Permitted Delay or the extension terminates provided that neither Party shall have an obligation to settle litigation pursuant to this sentence on terms unacceptable to such Party. Neither Party will be in default of an obligation if that Par ty’s inability to perform or delay in performing that obligation is caused by a Permitted Delay. Except with respect to Permitted Delay resulting from action or inaction by a governmental agency, no Permitted Delay shall result in an extension of more than six months. Any further extension will require an ame ndment of this Agreement.
12.14 Successors in Interest. The burdens of this Agreement are binding upon, and the benefits of this Agreement inure to, the Parties’ successors in interest. All provisions are enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act with regard to the Development of the Property:
a. Is for the benefit of and is a burden upon all portions of the Property. b. Runs with the Property and all portions.
c. Subject to Section 7 of this Agreement, is binding upon each Party and its successors in interest during the term of that Party’s or its successors’ ownership of the Property or any portion.
12.15 Counterparts. This Agreement may be executed in counterparts, which will be construed together and have the same effect as if the Parties had executed the same instrument.
12.16 Jurisdiction and Venue. All legal actions and proceedings to enforce or interpret this Agreement must be filed and tried in Riverside County Super ior Court or other legally appropriate court and venue.
12.17 Project as a Private Undertaking. The Project is a private development and neither Party is acting as the agent of the other in any respect. Each Party is an independent c ontracting entity with respect to this Agreement. No partnership, joint venture or other association of any kind is f ormed by this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property by a private party.
12.18 Further Actions and Instruments . Each Party must cooperate with the other and provide reasonable assistance to the other in the performance of the other Party’s obligations. Upon
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a Party’s request, the other Party must promptly execute (with notary acknowledgment if required) those instruments, and take any reasonable actions, necessary to evidence or consumma te the transactions expressly described, or which are a logical extension of the transactions described, in this Agreement.
12.19 Eminent Domain. No provision of this Agreement expands, limits, or restricts City’s exercise of its eminent domain powers.
12.20 Attorneys’ Fees. If either Party files any action or brings any action or proceeding against the other pertaining to the interpretation or enforcement of this A greement, then the prevailing Party will recover as an element of its costs of suit and not as damages its costs of suit, expert fees, consultant costs, and reasonable attorneys’ fees as fixed by the Court.
12.21 Authority to Execute. Each natural person executing this Agreement on behalf of a Party represents that he or she has the authority to execute this Agreement on behalf of that Party and that he or she has the authority to bind that Party to this Agreement. [Signature pages follow]
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SIGNATURE PAGE
TO
FRENCH VALLEY DEVELOPMENT AGREEMENT
“CITY”
CITY OF MURRIETA,
a California general law city and municipal
corporation
By:
Its:
Name:
ATTEST:
________________________________
Cristal McDonald, City Clerk
French Valley Development Agreement EXHIBIT A
EXHIBIT A
TO
FRENCH VALLEY CROSSINGS DEVELOPMENT AGREEMENT
Legal Description of Property
French Valley Development Agreement A-1
French Valley Development Agreement A-2
French Valley Development Agreement A-3
French Valley Development Agreement EXHIBIT B
EXHIBIT B
TO
FRENCH VALLEY CROSSINGS DEVELOPMENT AGREEMENT
Site Plan
{see attached}
53'-6"
50'-6"
60'
105'
ELEC. RM
FIRERISERRM
N.A.P.
37'
120'
83'-6"
57'
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49'
101'
PROPOSED PORTH ROAD
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HERE APP
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EXHIBIT B - SITE PLAN
French Valley Development Agreement EXHIBIT C
EXHIBIT C
TO
FRENCH VALLEY CROSSINGS DEVELOPMENT AGREEMENT
Planning, Public Works, and Engineering Conditions of Approval {see attached}
French Valley Development Agreement C-1
FEBRUARY 12, 2026
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French Valley Development Agreement C-8
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French Valley Development Agreement C-10
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French Valley Development Agreement C-11
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French Valley Development Agreement C-12
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