HomeMy WebLinkAbout1993-045
-
1
2
3
4
5
6
7
8
9
RESOLUTION NO. 93-45
RESOLUTION OF THE CITY OF SAN BERNARDINO CERTIFYING THE
ENVIRONMENTAL IMPACT REPORT; ADOPTING FINDINGS AND STATEMENTS OF
OVERRIDING CONSIDERATION AND MITIGATION MONITORINGIREPORTING
PROGRAM; ADOPTING SPECIFIC PLAN NO. 90-03 (PARADISE HILLS);
ADOPTING GENERAL PLAN AMENDMENT NO. 91-07; AND AUTHORIZING THE
EXECUTION OF DEVELOPMENT AGREEMENT NO. 91-03.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. RECITALS.
A. WHEREAS, the Mayor and Common Council adopted the General
Plan for the City of San Bernardino by Resolution No. 89-159 on
10 June 2, 1989; and
11
12
B.
WHEREAS, the General Plan made provisions for the
adoption
specific
of
plans
to
implement
further
the
goals,
13 objectives and policies; and
14
15
C.
WHEREAS, the Paradise Hills Specific Plan No. 90-03 foe
the development of 404 acres located northeast of California State
16 University San Bernardino, at the mouth of Badger Canyon has bee,',
The
17 drafted for the Mayor and Common Council's consideration.
18
19
20
Specific Plan includes General Plan Amendment No. 91-07, which will
change the General Plan land use designation on 110 acres from RL,
Residential Low to RS, Residential Suburban; and
D.
WHEREAS,
March
The
Development
Review
19,
1992
on
21
22 Committee recommended clearance of the Specific Plan, the General
23 Plan Amendment
24
25
26
27
and
Development
for hearing
Agreement
by the
Planning Commission; and
E.
WHEREAS,
on August 30,
1990 the Environmental Review
Committee determined that the Specific Plan, the General Plan
Amendment, and the Development Agreement may have a significant
28 IIII
1
RES' 93-45
24 L.
25 Program
26 CEQA.
27 IIII
28 IIII
1 effect on the environment and thus warranted the preparation of an
2 Environmental Impact Report (EIR) pursuant to the California
3 Environmental Quality Act (CEQA); and
4 F. WHEREAS, a Draft Environmental Impact Report was prepared
5 to address Specific Plan No. 90-03, General Plan Amendment No. 91-
6 07 and Development Agreement No. 91-03 other alternatives' impacts
7 in compliance with CEQA and local regulations; and
8 G. WHEREAS, the Draft EIR was made available to the public,
9 responsible agencies and other interested persons for their review
10 and comment from July 26, 1991 to September 9, 1991, as required by
11 CEQA; and
12 H. WHEREAS, verbal and written comments were received on the
13 Draft EIR; and
14 I. WHEREAS, these comments were responded to both orally and
15 in writing as required by CEQA; and
16 J. WHEREAS, the Planning Commission held a public workshop
17 on September 17, 1991 to receive additional comments on the Draft
18 EIR; and
19 K. WHEREAS, the Planning commission conducted noticed public
20 hearings on May 5, 1992, August 4, 1992, and November 17, 1992 in
21 order to receive public testimony and written and oral comments on
22 the EIR, Specific Plan, General Plan Amendment, and Development
23 Agreement; and
WHEREAS, the proposed Mitigation MonitoringlReporting
was reviewed by the Planning Commission in compliance with
2
RES 93-45
1 (Exhibits D, E, F, G, and G-1 of the February 1, 1993 and February
& February 22, 1993
2 15, 1993 Mayor and Common Council Staff Report) and incorporated
3 herein by reference.
4 documents:
5 Exhibit D - Draft Environmental Impact Report (July 1991)
Attachment 1 consists of the following
6 Exhibit E - Draft Environmental Impact Report Technical
7 Appendicies (July 1991)
8 Exhibit F - Final Environmental Impact Report
9 Mitigation Monitoring and Reporting Program
10 Exhibit G - Appendix G to Final Environmental Impact Report
11 Exhibit G-1 - Biology Correspondence;
12 (C) The Findings contained in the Statements of Overriding
13 Consideration with respect to the significant impacts identified in
14 the Final EIR are true and correct, and are based upon substantial
15 evidence in the record, including documents comprising the Final
16 EIR. The Findings and Statements of Overriding Consideration are
17 attached hereto as Attachment 2 and are incorporated herein by
18
reference.
19 (D) The Final Environmental Impact Report, the Mitigation
20 MonitoringlReporting Program and the Findings and Statements of
21 Overriding Consideration reflect the independent review and
22 analysis and the independent judgement of the City of San
23 Bernardino.
24
25 environmental effects of Specific Plan No.
(E)
The
Final
EIR
has
identified
all
significant
90-03,
General Plan
26 Amendment No. 91-07, and Development Agreement No. 91-03, and
27 there are no known potentially significant environmental effects
28 111/
4
RES 93-45
1
2
M. WHEREAS, the Planning Commission, after receiving public
testimony, recommended certification of the Environmental Impact
3 Report, adoption of the Findings and Statements of Overriding
4 Consideration, adoption of the Mitigation MonitoringlReporting
5 Program, approval of Specific Plan No. 90-03, approval of General
6 Plan Amendment No. 91-07, and approval of Development Agreement No.
7 91-03; and
8
9
10
N.
WHEREAS, the Mayor and Common Council conducted a noticed
public hearing on February 1, 1993
and February
February
Final EIR,
15, 1993 and fully
22. 1993
the Mitigation
reviewed
considered
and
the
11 MonitoringlReporting Program, the Findings and Statements of
12 Overriding Consideration, the Specific Plan, the General Plan
13 Amendment, the Development Agreement, the Planning Division staff
14 reports and the recommendation of the Planning Commission;
SECTION 2. ENVIRONMENTAL.
15
16 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL HEREBY CERTIFY:
17 (A) The Final Environmental Impact Report for Specific Plan
18 No. 90-03, General Plan Amendment No. 91-07, and Development
19 Agreement
Paradise
completed
in
Hills,
No.
91-03,
has
been
20 compliance with the California Environmental Quality Act;
21 (B) The Final Environmental Impact Report was presented to
22 the Mayor and Common Council who have reviewed and considered the
23 information in the Final Environmental Impact Report prior to
24 adopting the Paradise Hills Specific Plan (SP NO. 90-03), General
25 Plan Amendment No. 91-07, and Development Agreement No. 91-03. The
26 Final Environmental Impact Report and all the evidence and
27
information contained therein is attached hereto as Attachment 1
28 IIII
3
RES 93~5
1 not addressed in the Final EIR.
2 (F) Although the Final EIR identifies certain significant
3 environmental effects that would result if Specific Plan No. 90-03,
4 General Plan Amendment No. 91-07, and Development Agreement No. 91-
5 03 are adopted, all significant effects that can feasibly be
6 avoided or mitigated will be avoided or mitigated by the
7 implementation of the mitigation measures as set forth in the
8 Mitigation MonitoringlReporting Program for the Final EIR.
9 (G) Potential mitigation measures and project alternatives
10 not incorporated into or adopted as part of the Specific Plan,
11 General Plan Amendment, or Development Agreement were rejected as
12 infeasible, based on specific economic, social or other
13 considerations as set forth in the Findings and Statements of
14 Overriding Consideration.
15 (H) The Mayor and Common Council have given great weight to
16 the significant unavoidable adverse environmental impacts. The
17 Mayor and Common Council find that the significant unavoidable
18 adverse impacts are clearly outweighed by the economic, social and
19 other benefits of the Specific Plan, the General Plan Amendment,
20 and the Development Agreement as set forth in the Findings and
21 Statements of Overriding Considerations.
22 SECTION 3. FINDINGS - SPECIFIC PLAN.
23 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
24 City of San Bernardino that:
25 (A) Specific Plan No. 90-03, Paradise Hills, is consistent
26 with the General Plan, in that it refines and implements General
27 Plan objectives and policies applicable to the project site.
28 IIII
5
RES 93-45
1 (B) The Specific Plan will ensure development of desirable
2 character which will be compatible with existing and proposed
3 development in the surrounding area in that the Specific Plan will
4 be implemented subject to the requirements contained therein.
5 (C) The Specific Plan area, including the General Plan
6 Amendment area, is physically suitable for the requested land use
7 designation and the anticipated development as analyzed in the
8 Final Environmental Impact Report, which determined the development
9 desirable and appropriate for the area; all public services and
10 infrastructure are available to the project area and any
11 development permissible under the Specific Plan would not impact on
12 these facilities.
13 (D) The proposed plan will ensure development of a desirable
14 character which will be compatible with existing and proposed
15 development in that the policies established by the Plan are
16 intended to encourage high quality development of a nature
17 consistent with surrounding developments.
18 (E) The Specific Plan will contribute to a balance of land
19 uses so that the local residents may work and shop in the community
20 in which they live in that the plan proposes residential land uses.
21 The site is designated by the General Plan for residential land
22 uses, and the theoretical maximum number of units obtainable on the
23 site does not change.
24 (F) Specific Plan No. 90-03, Paradise Hills, is attached as
25 Attachment 3 (Exhibit C of the February 1, 1993 Mayor and Common
Council Staff Report) and incorporated herein by reference.
26
27
28
IIII
IIII
6
RES 93-45
23
24
25
26
27
28 IIII
1 SECTION 4. FINDINGS - GENERAL PLAN AMENDMENT.
2 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
3 city of San Bernardino that:
4 (A) General Plan Amendment No. 91-07 is consistent with the
5 Goals, Objectives and policies of the General Plan. The intent of
6 the General Plan Amendment is to supplement General Plan Policies
7 for reducing the number of units in the Hillside Management Overlay
8 by creating a receiving area outside the Overlay for the transfer
9 of dwelling units from the hillsides.
10 (B) General Plan Amendment No. 91-07 will not be detrimental
11 to the public interest, health, safety, convenience, or welfare, in
12 that the purpose of the amendment is to reduce impacts as addressed
13 in the EIR. Future subdivisions will require and be subject to
14 further environmental review.
15 (C) General Plan Amendment No. 91-07 will not impact the
16 balance of land uses within the City. Although the amendment will
17 result in a higher development density in the foothill areas of the
18 project site, the potential overall theoretical number of units
19 obtainable for the project site will not change.
20 (D) The subject land use is physically suitable for the RS,
21 Residential Suburban land use designation in that the access and
22 the provision of services and utilities will occur as outlined in
the related Specific Plan. The designation will accommodate the
transfer of units from areas with physical constraints.
(E) A Map of the area affected by General Plan Amendment No.
91-07 and accompanying Legal Description have been included as
Attachment 4.
7
RES 93-4
1 SECTION 5. FINDINGS - DEVELOPMENT AGREEMENT.
2 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
3 City of San Bernardino that:
4 (A) Development Agreement No. 91-03 is not in conflict with
5 the Goals, Objectives, and policies of the General Plan.
6 (B) Development Agreement No. 91-03 is consistent with the
7 Development Code.
8 (C) Development Agreement No. 91-03 will promote the welfare
9 and public interest of the city.
10 (D) Development Agreement No. 91-03, is included as
11 Attachment 5.
12 SECTION 6.
13 NOW THEREFORE BE IT RESOLVED, FOUND AND DETERMINED by the
14 Mayor and Common Council that:
The Final Environmental Impact Report is certified, the
Findings and Statements of Overriding Consideration are
adopted, the Mitigation MonitoringlReporting Program is
adopted, Paradise Hills Specific Plan No. 90-03, is adopted,
General Plan Amendment No. 91-07 is adopted and Development
Agreement No. 91-03 is adopted.
The Mayor is hereby authorized and directed to execute on
behalf of said City, Development Agreement No. 91-03.
The authorization to execute Development Agreement No. 91-03
is rescinded if the parties to the agreement fail to execute
it within sixty (60) days of the passage of this resolution.
Development Agreement No. 91-03, after execution of the
agreement by all parties, shall be effective as of the date of
15 A.
16
17
18
19
20
21 B.
22
23 c.
24
25
26 D.
27
28 IIII
8
RES 93-45
1 the adoption and execution of this resolution.
2 SECTION 7. MAP NOTATION.
3 This resolution and the General Plan Amendment affected by it
4 shall be noted on such appropriate General Plan maps as have been
5 previously adopted and approved by the Mayor and Common Council and
6 which are on file in the office of the City Clerk.
7 SECTION 8. NOTICE OF DETERMINATION.
8 The Planning Division is hereby directed to file a Notice of
9 Determination with the County Clerk of the County of San Bernardino
10 certifying the city's compliance with the California Environmental
11 Quality Act in preparing and adopting the Final Environmental
12 Impact Report and Mitigation Monitoring/Reporting Program, and
13 Findings and Statement of Overriding Consideration.
14 SECTION 9. Recordation
15 The developer shall record the Development Agreement in the
16 Office of the County Recorder no later than ten (10) days after it
17 is executed by the parties.
18 / / I I
19 I I I I
20 1/ / /
21 I I I I
22 IIII
23
24
25
26
27
28
9
RES 93-45
1 RESOLUTION ... CERTIFYING THE ENVIRONMENTAL IMPACT REPORT;
ADOPTING FINDINGS AND STATEMENTS OF OVERRIDING CONSIDERATION, AND
2 MITIGATION MONITORING/REPORTING PROGRAM; ADOPTING SPECIFIC PLAN NO.
90-03 (PARADISE HILLS); ADOPTING GENERAL PLAN AMENDMENT NO. 91-07,
3 AND DEVELOPMENT AGREEMENT NO. 91-03.
4
5
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF DEVELOPMENT AGREEMENT NO. 91-03
I HEREBY CERTIFY that the foregoing resolution was duly
6
adopted by the Mayor
7
and
Common Council of the city of San
Bernardino at a
r~qnl;llr
meeting therefore held on the
8
22nd
day of
February
, 1993, by the following vote to
9 wit:
10 council Members
11 ESTRADA
12 REILLY
13 HERNANDEZ
14 MAUDSLEY
15 MINOR
AYES
NAYS
ABSTAIN
ABSENT
--X-
x
x
x
x
16 POPE-LUDLAM
17
x
MILLER
x
18
19
20
21
22
23
C~~~
r- . The foregoing resolution is hereby approved
day of~~. , 1993.
24 Approved as to
25 form and legal content:
JAMES F. PENMAN
26 City Attorney
27 By: ~ ~~4.
28 ;/.
10
~. ()'21 Ll_-
. ~-;-"'<2..--' \'.:> ,:::.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN
P.O. BOX 1148
RIVERSIDE, CALIFORNIA 92502.1148
ATTENTION: FRANK J. DELANY, ESQ.
Space Above This line For Recorder's Use
DEVELOPMENT AGREEMENT
between
FONTANA CORNERS III
and
CITY OF SAN BERNARDINO
13\R\A21l6\OI R\OEVELOP.AGM
res 93-45
Section
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
TABLE OF CONTENTS
Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exhibits...... .... ..... ... . .... . .... . ..... . .... . .
Mutual Benefits..................................
Interest of Developer............................
Binding Effect of Agreement....... ...... ...... ...
Project as a Private Undertaking.. ..... ...... ....
Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Changes in proj ect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hold Harmless....................................
Vested Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General Development of the Project.... ...... .....
Rules, Regulations and Official Policies.........
Amendment or Cancellation of Agreement...........
Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Periodic Review of Compliance With Agreement.....
Events of Defaul t. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Institution of Legal Action......................
Waivers and Delays... . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
At torney I s Fees..................................
Transfers and Assignments. . . . . . . . . . . . . . . . . . . . . . . .
Cooperation in the Event of Legal Challenge......
Eminent Domain...................................
Authority to Execute.. ..... ...... ...... ..... .....
Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Protection of Mortgage Holders. ..... ....... ......
Severability of Terms... ..... ...... ..... .........
Subsequent Amendment to Authorizing Statute......
Section Headings.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Incorporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rules of Construction and Miscellaneous Terms....
Effect on Title... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
131RIA2116101 RIDEVELOP.AOM
i
Paoe
2
3
3
3
3
3
4
4
4
4
5
8
8
8
8
9
9
10
10
10
10
11
11
11
11
11
12
12
12
12
12
13
res 93-45
."
EXHIBIT
"A" LEGAL DESCRIPTION OF PROPERTY
"B" STANDARDS AND SPECIFICATIONS FOR DEVELOPMENT OF THE
PROPERTY: PARADISE HILLS SPECIFIC PLAN
"C" ASSESSMENTS AND FEES APPLICABLE TO DEVELOPMENT OF
THE PROPERTY
"D" REIMBURSEMENT AGREEMENT
13\RIA286\OI RIDEVELOP.AGM
ii
res 93-45
.~
DEVELOPMENT AGREEMENT
(Pursuant to Government Code
Sections 65864 . 65869.5)
~ THIS DEVELOPMENT AGREEMENT (II Agreement ") is entered into on
c. cu Ar:.~ :.J;;l. ,1993, between FONTANA CORNERS III, a California
linl1ted pa tnership ("Developer") I and the CITY OF SAN BERNARDINO,
a municipal corporation organized and existing under the laws of
the State of California (lIeityn). Developer and City are sometimes
collectively referred to herein as the "parties."
R E C I TAL S
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized
terms which are defined in this Agreement. The parties intend to
refer to those definitions in conjunction with the use thereof in
these Recitals.
B. California Government Code ("Government Code") Sections
65864 - 65869.5 (collectively the nDevelopment Agreement LawH)
authorizes the City to enter into binding development agreements
with persons having a legal or equitable interest in real property
for the development of such property, all for the purpose of
strengthening the public planning process, encouraging private
participation and comprehensive planning and reducing the economic
costs of such development.
C. This Agreement is adopted pursuant to Government Code
Section 65865 and San Bernardino Municipal Code Chapter 19.40.
D. Developer is the fee owner and proposed developer of
approximately four hundred four (404) acres of land as described on
Exhibit nAil (the uProperty"), substantially all of which is located
in the City. A portion of the Property is in the process of being
annexed to the City.
E. Developer proposes to develop a multi-phased master-
planned single family residential community (the "projectn)
requiring maj or investment in public facilities and substantial
front end investment in on-site and off-site improvements in order
to make the Project feasible.
F. City's General Plan designation for the Property is
single family residential. Developer and City desire to provide
through this Development Agreement certain development cri teria and
parameters of allowable development applicable to the Property
which will provide for maximum, efficient utilization of the
Property in accordance with sound planning principles as adopted by
the City.
G. Developer has requested City to consider entering into a
development agreement relating to the Project and proceedings have
been taken in accordance with City's rules and regulations relating
to development agreements.
H. The City Council has found that this Agreement:
(a) Is consistent with the objectives, policies, general
land uses and programs specified in the City's General Plan, the
City's Development Code, and the Paradise Hills Specific Plan (as
that term is defined below); and
City.
(b) Will promote the welfare and public interest of the
I. On \; "-"""'J"""'<.~ 'u, 199"'" the City Council of the City
adopted Resolution NO.~'~S\ approving this Agreement with Developer.
\3\R\A2116\0I RIDEVELOP.AGM
1
RES 93-45
J. City has found and determined that the execution of this
Agreement is in the best interest of the public health, safety and
general welfare of City and its residents and that adopting this
Agreement constitutes a present exercise of its police power.
AGREEMENT
WHEREFORE, the parties agree as follows:
1. Definitions.
1.1 "Agreement II is this Development Agreement.
1.2 "Agreement Date" is the date this Agreement is
approved by the City Council.
.l.......3. "City" is the City of San Bernardino, California.
1.4 "Development Plan" is all of those ordinances,
resolutions, codes (except as provided in Section 12.1), rules,
regulations and official policies of City governing the development
and use of the Property as of the Agreement Date, including,
without limitation, the permitted uses of the Property, the density
and intensity of use, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for
public purposes, and the design, improvement and construction
standards and specifications applicable to the development of the
Property. Specifically, but without limitation, the Development
Plan for purposes of this Agreement shall, except as otherwise
provided in the Paradise Hills Specific Plan, allow Developer to
develop the Property as a multi-phased, master-planned single
family residential community with five hundred four (504) single
family residential dwelling units which will result in an average
residential density of 1.24 dwelling units per acre for the 404
acres of the Property. Development of the single family
residential dwelling units shall generally be in accordance with
the standards and specifications of the Paradise Hills Specific
Plan as approved by City which such standards and requirements
shall, to the extent they are in excess of the minimum standards
and requirements of the City Development Code as of the Agreement
Date, supersede and replace such minimum standards and
requirements. TO the extent any of the foregoing are amended from
time to time with the consent of Developer, the "Development Plan"
shall include such matters as so amended. Notwithstanding the
immediately preceding sentence, if this Agreement is required by
law to be amended in order for the "Development Plan" to include
such amendments, the "Development Plan" shall not include such
amendments unless and until this Agreement is so amended.
1.5 "Developer" is Fontana Corners III, a California
limited partnership, and its successors in interest to all or any
part of the Property.
1.6 "Effective Daten is that date which is the later to
occur of: (a) the time for filing a referendum petition relating to
this Agreement expires if no such petition is filed within such
period; or (b) the results of a referendum election are declared
approving this Agreement if a referendum petition is filed within
the applicable period; or (c) in the event of any legal action
relating to or affecting the validity or enforceability of this
Agreement, including without limitation any action challenging the
approval or validity of this Agreement or any referendum related to
it, the date of dismissal with prejudice of the action, or of final
disposition of the action by the court and exhaustion or
termination of all applicable periods for judicial review, whether
by writ, appeal, or otherwise.
1.7 "Paradise Hills Specific Plan" is that certain
Specific Plan adopted by the City pursuant to California Government
Code Section 65450, et seq., which Plan establishes the standards
and specifications for the Project.
13\RIA2S6\OI R\DEVELOP .AGM
2
RES 93-45
1.8 "Project" is the proposed development
Property as a multi-phased, master-planned single
residential community as described in the Paradise Hills
Plan.
of the
family
Specific
~ npropertyll is the real property on which the Project
is, or will be, located as described on Exhibit "A".
2. Exhibits. The
this Agreement, attached
reference:
following documents are referred to in
hereto and incorporated herein by this
Exhibit Desiqnation
Descriotion
A
Legal Description of the Property
B
Standards and Specifications for
Development of the Property:
Paradise Hills Specific Plan
c
Assessments and Fees Applicable to
Development of the Property
D
Reimbursement Agreement
3. Mutual Benefits. This Agreement is entered into for the
purpose of carrying out the Development Plan for the Project in a
manner that will insure certain anticipated benefits to both City
(including, without limitation, residents of City) and Developer as
set forth in this section. City and Developer agree that certain
assurances on the part of each party as to the Project will be
necessary to achieve those desired benefits.
3.1 Benefits to Citv. The benefits to City (including,
without limitation, the residents of City) under this Agreement
include, but are not limited to: (a) improvements to roadways;
(b) the payment of fees for the construction of public facilities
and services; (c) an increase in property tax revenues and sales
tax revenues to be derived by the City; (d) the creation of jobs
within the City; (e) the creation of a master-planned single family
residential community which will enhance the image of the City and
its ability to attract new employers; (f) the creation of a unique
public park with an educational and environmental theme; and (g)
the preservation of approximately one hundred seventy-five (175)
acres of open space within the City.
3.2 Benefits to DeveloDer. Developer has expended and
will continue to expend substantial amounts of time and money on
the planning and infrastructure construction of the Project. In
addition, Developer will expend substantial amounts of time and
money in constructing public improvements and facilities and in
providing for public services in connection with the Proj ect.
Developer would not make such additional expenditures without this
Agreement and such additional expenditures will be made in reliance
upon this Agreement. The benefit to Developer under this Agreement
consists of the assurance that Developer will preserve the right to
develop the Project.
4. Interest of Develooer. Developer represents that
Developer is the fee owner of the Property.
5. Bindinq Effect of Aqreement. The burdens of this
Agreement bind and the benefits of this Agreement inure to the
successors in interest of the parties thereto.
6. proiect as a Private Undertakinq. It is specifically
understood and agreed by and between the parties hereto that the
development of the Project is a private development, that neither
party is acting as the agent of the other in any r~spect hereunder,
and that each party is an independent contracc.ing entity with
respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of
any kind is formed by this Agreement. The only relationship
131R1A286\OI RIDEVELOP.AGM
3
RES 93-45
between City
regulating the
property.
and Developer is that of a government entity
development of private property by the owner of such
7. Term. The term of this Agreement shall commence upon the
Effective Date and shall continue until all permits and approvals
required to complete the development of the Project as contemplated
by the Development Plan have been issued, provided that in no event
shall such term exceed fifteen (15) years following the Effective
Date of this Agreement.
8. Chanqes in Proiect. Developer shall not be entitled to
any change, modification, revision or alteration in the Development
Plan relating to the permitted uses of the Property, the density or
intensity of use, the maximum height and size of proposed buildings
or the provision for reservation or dedication of land for public
purposes without review and approval by the City. Subject to the
foregoing provisions of this Section 8, City acknowledges that
Developer may seek new entitlements to use and amendments to
entitlements to use in connection with the development of the
Project. The approval of any such amendments or new entitlements
to use shall be in the sole discretion of the City in the manner
described in 11.4.
9. Hold Harmless.
9.1 Bv Develooer. Developer agrees to and shall defend,
indemnify and hold harmless City, its elected officials, officers,
agents, employees, and representatives from: (a) liability for
damage or claims for damage for personal injury including death and
claims for property damage which may arise from the activities of
Developer or those of Developer's contractors, subcontractors,
agents, employees or other persons acting on Developer's behalf
which relate to the Project; and (b) any claims, costs and
liability arising as a result of any legal action brought against
City which challenges the validity of this Agreement, the Paradise
Hills Specific Plan, the Project Environmental Impact Report, or
the Project General Plan Amendment or any City proceedings relating
to the approval of any of such documents, or any of the terms and
conditions herein. Nothing in this section shal~ be construed to
mean that Developer shall hold City harmless and defend it from any
claims of personal injury, death or property damage arising from,
or alleged to arise from, the negligence, or any deliberately
harmful act, willful or gross negligence on the part of City, its
elected representatives, officers, agents and employees.
9.2 Bv Ci tv. City agrees to and shall hold harmless
Developer, its officers, agents, employees, partners and
representatives from liability for damage or claims for damage for
personal injury including death and claims for property damage
which may arise from the activities of City or those of City's
contractors, subcontractors, agents, employees or other persons
acting on City's behalf which relate to the Project.
10. Vested Riqht. ~y entering into this Agreement and
relying thereon, Developer 1S obtaining a vested right to proceed
with the Project in accordance with the Development Plan and City
is securing certain pUblic benefits which help to alleviate current
or potential problems in City and enhance the public health, safety
and welfare. With respect to Government Code Section 65865.2, the
development regulations governing subsequent disc~etionary actions
are the ordinances and regulations of City a(5_'Jpted as of the
Agreement Date. Upon submission by Developer of all appropriate
applications for such subsequent discretionary approvals for the
Project, City shall promptly commence and diligently prosecute all
procedures necessary to authorize such approvals. As provided in
Government Code Section 65865.2, any subsequent discretionary
actions by City or any conditions, terms, restrictions and
requirements for such discretionary actions by City shall not
prevent the development of the Project for the uses and to the
maximum density or intensity of development set forth in this
Agreement. City therefore agrees to the following:
13\R\A286\OI R\DEVELOP.AGM
4
RES 93-45
10.1 No Conflictinq Enactments. Neither the City Council
or City nor any other agency of City shall enact an ordinance,
policy, rule, regulation or other measure applicable to the Project
which relates to the rate, timing or sequencing of the development
or construction of all or any part of the Project or which is
otherwise in conflict with the Project as described in this
Agreement.
.~
10.2 Intent of Parties. In additioJ'1 to and not in
limitation of the foregoing, it is the intent of Developer and City
that no moratorium or other limitation (whether relating to the
rate, timing or sequencing of the development or construction of
all or any part of the Project and whether or not enacted by
initiative or otherwise) affecting subdivision maps, building
permits, occupancy certificates or other entitlements to use
approved, issued or granted within City, or portions of City, shall
apply to the Project to the extent such moratorium or other
limitation is in conflict with this Agreement. The foregoing shall
not be deemed to limit the Developer's right to appeal any
determination of such ordinance, general plan or zoning amendment,
measure, policy, rule, regulation, moratorium or other limitation
which purports to invalidate or prevail over all or any part of
this Agreement. City agrees to cooperate with Developer in all
reasonable manners in order to keep this Agreement in full force
and effect.
10.3 Subseauent Review. All subsequent review of
development of the proj ect shall be subj ect to the terms and
conditions of this Agreement and the provisions of Government Code
Section 65865.4 and 65866.
11. General DeveloDment of the proiect.
11.1 proiect. While this Agreement is in effect,
Developer shall have a vested right to develop the Project in
accordance with the terms and conditions of this Agreement, and
City shall have the right to control the development of the Project
in accordance with the terms and conditions of this Agreement.
Except as otherwise specified in this Agreement, the Development
Plan shall control the overall design, development and construction
of the Project. The permitted uses of the Property, the density
and intensity of use, the maximum height and size of proposed
buildings, the provision for reservation and dedication of land for
public purposes and other terms and conditions of development
applicable to the Property shall be those set forth in the
Development Plan. The parties hereto acknowledge that Developer's
vested right to develop 504 single. family residential dwelling
units on the Property is subject to Developer's compliance with all
provisions of the Development Plan, including the Paradise Hills
Specific Plan Final Environmental Impact Report (the "EIR"), the
ErR Mitigation Monitoring and Reporting Program, Paradise Hills
Specific Plan, and the Conditions of Approval imposed by City in
connection with the approval of such Specific Plan.
11.2 Phasinq and Timinq of DevelODment. The parties
aCknowledge that although Developer currently anticipates that the
proj ect will be phased and constructed in increments over an
approximately fifteen (15) year time frame, at the present time
Developer cannot predict when or the order in which Project phases
will be developed. Such decisions depend upon numerous factors
which are not within the control of Developer, such as market
orientation and demand, interest rates, competition and other
similar factors. To the extent permitted by the Development Plan
and this Agreement, Developer shall have the right to develop the
Project in phases in such order and at such times as Developer
deems appropriate within the exercise of its subjective business
judgment so long as the Project is constructed as an integrated
mixed-use master-planned single-family residential community as
contemplated by the Development Plan. City agrees that Developer
shall be entitled to apply for and receive tentative tract maps,
vesting tentative tract maps, building permits, occupancy
certificates and other entitlements to use at any time, in as
13IR\A286\OI RIDEVELOP.AOM
5
RES 93-45
expeditious a manner as possible provided that such application is
made in accordance with the Development Plan.
11.3 Effect of Aqreement on Land Use Requlations. The
rules, regulations and official pOlicies 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 development of the Property are those rules,
regulations and official policies in force as of the Agreement Date
except as provided in Section 12.1. In connection with any
approval which City is permitted or has the right to make under
this Agreement relating to the Project, or otherwise under its
other rules, regulations and official policies, City shall exercise
its discretion to take action in a manner which is as expeditious
as possible and which complies and is consistent with the
Development Plan and the standards, terms and conditions contained
in this Agreement, and in a manner which will not interfere with
the development of the proj ect for the uses and to the height,
density and intensity specified in this Agreement or with the rate
of development selected by Developer. Ci ty shall accept for
processing and timely review and act on all applications for
further land use entitlement approvals with respect to the Project
called for or required under this Agreement in as expeditious a
manner as is possible. Such application shall be processed in the
normal manner for processing such matters.
11.4 Administrative Chanqes and Amendments. The parties
acknowledge that refinements and further development of the proj ect
may demonstrate that changes are appropriate with respect to the
details and performance of the parties under this Agreement. The
parties desire to retain a certain degree of flexibility with
respect to the details of the Project development and with respect
to those items covered in general terms under this Agreement. If
and when the parties find that changes or adjustments are necessary
or appropriate, they shall, unless otherwise required by law,
effectuate such changes or adjustments through administrative
amendments approved by the City Director of Community Development,
which, after execution, shall be attached hereto as an addenda and
become a part hereof, and may be further changed and amended from
time to time as necessary, with approval by City and Developer.
Any such administrative changes or amendments shall not be deemed
to be an amendment to this Agreement under Government Code Section
65868, and unless otherwise required by law, no such administrative
amendments shall require prior notice or hearing. Notwithstanding
the foregoing, the following matters shall not be considered
administrative changes or amendments, but shall be considered
substantive amendments which shall be reviewed by the Planning
Commission and approved by the City Council:
(a) Alteration of the permitted uses of the Property;
(b) Increase in the density or intensity of use or the
number of lots;
buildings;
(c) Increase in the maximum height and size in permitted
(d) Deletion of a requirement for the reservation or
dedication of land for public purposes except for minor boundary
adjustments approved by the City Director of Community Development;
and
(e) Any amendment or change requiring a subsequent or
supplemental environmental impact report pursuant to California
Public Resources Code Section 21166.
~ Mello-Roos Communi tv Facilities District: Other
Assessment District or Financinq Mechanisms. Pursuant to Chapter
2.5 (commencing with Section 53312) Part I, Division 2, Title 5 of
the Government Code, commonly known as the "Mello-Roos Community
Facility Act of 198211, Developer may, at its sole election,
petition the City Council of City to establish a community
13\R\A286\OJ R\DEVELOP.AGM
6
RES 93-45
facilities district including the Property for the purpose of
acquiring, constructing and financing through the sale of bonds the
acquisition and construction of certain public facilities which are
necessary to meet increased demands placed on City as a result of
the development of Developer's Property. Alternatively, or in
addition thereto, Developer may request that City initiate and
complete proceedings under the Municipal Improvement Act of 1911,
the Municipal Improvement Act of 1913, the Improvement Bond Act of
1915, the Landscaping and Lighting Act of 1972, or any and all
other available financing mechanisms to provide public conduit
financing for the construction of public improvements on the
Property. If so requested by Developer, City shall cooperate with
Developer and use its best efforts in taking all steps necessary to
cause the community facilities district or other entity to issue
bonds for such purposes.
11.6 Consistency Between This Aqreement and Current Laws.
City represents that there are no rules, regulations, ordinances or
official policies of City enforced as of the date of execution of
this Agreement that would interfere with the completion or use of
the Project.
11.7 Assessments and Fees. It is the intent of the
parties that Developer shall pay all development fees currently
applicable to the Project and that the amount of such fees shall be
set at the time such fees are otherwise due or payable.
Accordingly, City shall not, without the prior written consent of
Developer, impose any additional assessment or fee applicable to
the Project or any portion thereof, or impose any additional fees
as a condition to the implementation of the Project or any portion
thereof, except those assessments and fees in effect on the
Agreement Date as set forth on Exhibit "C" (collectively,
"Applicable Fees"). Notwithstanding the foregoing: (a) Applicable
Fees payable to City shall be paid at rates applicable on the date
said fees are otherwise due and payable; and (b) the City may,
without the prior written consent of Developer, impose assessments
or fees applicable to the Project which are: (i) of general
application to all single family residential property situated in
the City, i.e. City-wide assessments or feea; and (ii) not
specifically designed to apply to the Project to the exclusion of
other single family residential property then situated in the City.
11.8 Subseauent Actions. City shall timely process, in
as expeditious a manner as possible for processing such matters,
any necessary entitlements to use, including parcel maps, vesting
tentative tract maps, tentative tract maps, conditional use
permits, or other discretionary approvals or entitlements to use
contemplated by the Project, and any grading, construction or other
permits filed by Developer in accordance with the substantive
development standards set forth in the Development Plan. The term
of any tentative map filed for the Property, or any portion
thereof, within the term of this Agreement shall automatically be
extended for the term of this Agreement.
11.9 Reimbursement To Develooer.
A. Developer, in order to develop the Project and
to mitigate certain impacts resulting therefrom, will have to
comply with the Conditions of Approval for Specific Plan for the
Project.
B. For those public improvements or facilities
("Facilities") designed, constructed or installed by Developer
which benefit not only the Property, but also property in addition
to the Property ("Benefitting Properties") a reimbursement
agreement (the "Reimbursement Agreementll) shall be executed by the
City and Developer.
C. The Reimbursement Agreement shall: (a) be in
form and substance identical to Exhibit liD" attached hereto and
incorporated herein by this reference: and (b) provide for
reimbursement to Developer when: (i) an Engineering Benefit Zone
Study ("EBZ Study") prepared pursuant hereto shows that, with
13\RIA286101 R\DEVELOP.AOM
7
RES 93-45
respect to any public improvement or facility designed, constructed
or installed by Developer, there exists Benefitting Properties; or
(ii) Developer is entitled to reimbursement pursuant to City
ordinances, resolutions and policies, e.g., reimbursement for
certain water, sewer and storm facilities.
D. City shall, from time to time, at the request
of Developer and at Developer's expense, cause an EBZ Study with
respect to one or more of the Facilities to be prepared and, after
review and acceptance by the City of the EBZ Study, shall enter
into Reimbursement Agreements with Developer with respect to the
Benefitted Properties identified in such Study.
12. Rules. Requlations and Official Policies.
12.1 New Rules. This Agreement shall not prevent City
from applying new rules, regulations and policies relating to
Uniform Codes such as the Uniform Building Code, Uniform Electrical
Code, Uniform Mechanical Code or Uniform Fire Code, which:
(a) relate to public safety; (b) are based on recommendations of a
multi-state professional organization; and (c) become applicable
throughout City.
12.2 New Laws. In the event that state or federal laws
or regulations, enacted after this Agreement is executed, prevent
or preclude compliance with one or more of the provisions of this
Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal
laws or regulations; provided, however, that this Agreement shall
remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and tn the extent such
laws or regulations do not render such remaining provisions
impractical to enforce.
12.3 Subseauent Actions and Aoorovals. In accordance
with Government Code Section 65866, this Agreement shall not
prevent City in subsequent actions applicable to the Property from
applying new rules, regulations and policies which do not conflict
with those existing rules, regulations and policies set forth in
the Development Plan, nor shall this Agreement prevent City from
denying or conditionally approving any subsequent development
project application on the basis of such existing or new rules,
regulations or policies; provided that Developer's vested right to
develop the Project pursuant to Section 10 above is not impaired by
any such actions or applications by the City.
13. Amendment or Cancellation of Aqreement. This Agreement
may be amended or canceled in whole or in part only by mutual
consent of the parties in the manner provided for in Government
Code Section 65868.
14. Enforcement. Unless amended or canceled as provided in
Section 13, or modified or suspended pursuant tc Government Code
Section 65869.5, this Agreement is enforceable by either party
hereto notwithstanding any change in any applicable general or
specific plan, zoning, subdivision or building regulation or other
applicable law or regulation adopted by City (or by the voters of
City unless found by a court of competent and final jurisdiction to
prevail over this Agreement) .
15. Periodic Review of ComDliance With Aqreement.
15.1 Periodic Review. City and Developer shall review
this Agreement at least once every twelve (12) months from the date
this Agreement is executed. City shall notify Developer in writing
of the date for review at least thirty (30) days prior thereto.
15.2 Good Faith ComDliance. During each periodic review,
each party is required to demonstrate good faith compliance with
the terms of this Agreement. Each party agrees to furnish such
reasonable evidence of good faith compliance as the other party, in
the exercise of its reasonable discretion, may require.
131RIA286\OI RIDEVELOP.AOM
8
RES 93-45
16. Events of Default.
16.1 Default bv Develooer. If City determines on the
basis of substantial evidence that Developer has not complied in
good faith with the terms and conditions of this Agreement, City
shall, by written notice to Developer, specify the manner in which
Developer has failed to so comply and state the steps Developer
must take to bring itself into compliance. If, within ninety (90)
days after the effective date of notice from City specifying the
manner in which Developer has failed to so comply, Developer does
not commence all steps reasonably necessary to bring itself into
compliance as required and thereafter diligently pursue such steps
to completion, then Developer shall be deemed to be in default
under the terms of this Agreement and City may terminate this
Agreement.
16.2 Default bv Citv. If Developer determines on the
basis of substantial evidence that City has not complied in good
faith with the terms and conditions of this Agreement, Developer
shall, by written notice to City, specify the manner in which City
has failed to so comply and state the steps City must take to bring
itself into compliance. If, within ninety (90) days after the
effective date of notice from Developer specifying the manner in
which City has failed to so comply, City does :lot commence all
steps reasonably necessary to bring itself into compliance as
required and thereafter diligently pursue such steps to completion,
then City shall be deemed to be in default under the terms of this
Agreement and Developer may terminate this Agreement or seek
specific performance as set forth in Section 16.3.
16.3 Soecific Performance Remedv. Due to the nature and
scope of the Project, it will not be practical or possible to
restore the Property to its natural condition once implementation
of this Agreement has begun. After such implementation, Developer
may be foreclosed from other choices it may have had to utilize the
Property and provide for other benefits. Developer has invested
significant time and resources and performed extensive planning and
processing of the Project in agreeing to the terms of this
Agreement and will be investing even more substantial time and
resources in implementing the Project in reliance upon the terms of
this Agreement, and it is not possible to determine the sum of
money which would adequately compensate Developer for such efforts.
For the above reasons, City and Developer agree that damages would
not be an adequate remedy if City fails to carry out its
obligations under this Agreement. Therefore, specific performance
of this Agreement is the only remedy which would compensate
Developer if City fails to carry out its obligations under this
Agreement, and City hereby agrees that Developer shall be entitled
to specific performance in the event of a default by City
hereunder. Notwithstanding the foregoing, nothing in this
Agreement is intended to deprive Developer from recovering
appropriate damages in the event that the terms of this Agreement
are breached. City and Developer acknowledge that, if Developer
fails to carry out its obligations under this Agreement, City shall
have the right to refuse to issue any permits or other approvals
which Developer would not otherwise have been entitled to pursuant
to this Agreement. Therefore, City's remedy of terminating this
Agreement shall be sufficient in most circumstances if Developer
fails to carry out its obligations hereunder. Notwithstanding the
foregoing, if City issues a permit or other approval pursuant to
this Agreement in reliance upon a specified condition being
satisfied by Developer in the future, and if Developer then fails
to satisfy such condition, City shall be entitled to specific
performance for the sole purpose of causing Developer to satisfy
such condition. The City's right of specific performance shall be
limited to those circumstances set forth above, and City shall have
no right to seek specific performance to cause Developer to
otherwise proceed with the development of the Project in any
manner.
17. Institution of Leoal Action. In addition to any other
rights or remedies, either party may institute legal action to
cure, correct or remedy any default, to enforce any covenants or
13\R\A286101 RIDEVELOP.AOM
9
RES 93-45
agreements herein, to enjoin any threatened or attempted violation
hereof, to recover damages for any default, or to obtain any other
remedies consistent with the purpose of this Agreement. Any such
legal action shall be brought in the Superior Court for San
Bernardino County, California.
18. Waivers and Delavs.
18.1 Waiver. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by
the other party, and failure by a party to exercise its rights upon
a default by the other party hereto, shall not constitute a waiver
of such party's right to demand strict compliance by such other
party in the future.
18.2 Third Parties. Nonperformance shall not be excused
because of a failure of a third person except as provided in
Section 18.3 below.
18.3 Force Maieure. Neither party shall be deemed to be
in default or failure or delay in performance of any of its
obligations under this Agreement if caused by floods, earthquakes,
other Acts of God, fires, wars, riots or similar hostilities,
strikes, other labor difficulties, government regulations or other
causes beyond either of the parties' control. If any such event
shall occur, the term of this Agreement and the time for
performance by Developer of any of its obligations hereunder or
pursuant to the Development Plan shall be extended by the periOd of
time that such events prevent a construction of the Project.
19. Notices. All notices required or provided for under this
Agreement shall be in writing and delivered in person and deposited
in the United States mail, postage prepaid and addressed as
follows:
TO CITY: City of San Bernardino
300 N. "0" Street - 6th Floor
San Bernardino, California 92418
Attn: Director of Developme~t
TO DEVELOPER: Fontana Corners III
1875 Century Park East
Suite 1880
Los Angeles, CA 90067
Attn: Mazen Habiby
Either party may change the address stated herein by giving notice,
in writing, to the other party and thereafter notices shall be
addressed and submitted to the new address.
20, Attornev's Fees. If legal action is brought by either
party against the other for breach of this Agreement, or to compel
performance under this Agreement, the prevailing party shall be
entitled to an award of reasonable attorneys' fees and costs.
21. Transfers and Assiqnrnents.
21.1 Riqht to Assian. Developer shall have the right to
sell, assign or transfer this Agreement, and any and all of its
rights, duties and obligations hereunder, to any person or entity
at any time during the term of this Agreement, provided, however,
in no event shall the rights, duties and obligations conferred upon
Developer pursuant to this Agreement be at any time so transferred
or assigned except through a transfer of an interest of Developer
in the Property, or portion thereof, so transferred. In the event
of any such assignment, either the transferee or Developer shall be
liable for the performance of all obligations of Developer. Such
transferee or Developer shall notify City in writing of the
transfer of such obligations within thirty (30) days of the
effective date of the transfer.
21.2 Release Uoon Transfer. Upon the sale, transfer or
assignment of Developer's rights and interest under this Agreement
131RIA286\Ol RIDEVELOP.AGM
10
RES 93-45
,
as permitted pursuant to Section 21.1, Developer shall be released
from its obligations under this Agreement and all of owner's
obligations pursuant to the Development Plan, or other agreements
assumed by transferee with respect to the Property I or portion
thereof, so transferred provided that: (a) Developer is not then in
default under the Agreement; (b) Developer or transferee has
provided the City notice of such transfer; and (c) the transferee
executes and delivers to City a written agreement in which: (i) the
name and address of the transferee is set forth; and (ii) the
transferee expressly and unconditionally assumes all of the
obligations of Developer under this Agreement with respect to the
Property, or a portion thereof, so transferred.
Notwithstanding Section 5 and Section 21.1 of this
Agreement, in the event that any person or enti ty (n Property
Purchaser"), purchases a portion of the Property (the UPurchased
Parcel") and the Property Purchaser and the City execute and record
a development agreement pertaining to the Purchased Parcel, then at
the time when such development agreement is recorded, this
Agreement shall cease to apply to the Purchased Parcel and the
owner of the Purchased Parcel, as such, shall have no rights or
obligations under this Agreement, and Developer hereunder shall be
released from its obligations under this Agreement with respect to
the Purchased Parcel as provided in this Section 21.2 but without
any requirement to satisfy the conditions set forth in Section
21.2{a). (b) and Ie).
22. Coooeration in the Event of Leqal Challenqe. In the
event of any legal action instituted by a third party or other
governmental entity or official challenging the validity of any
provision of this Agreement, the parties hereby agree to cooperate
in defending such action. Each party shall pay its own expenses in
connection with such defense. In the event of any litigation
challenging the effectiveness of this Agreement, or any portion
hereof, this Agreement shall remain in full force and effect while
such litigation, including any appellate review, is pending.
23. Eminent Domain. No provision of his Agreement shall be
construed to limit or restrict the exercise by City of its power of
eminent domain.
24. Authoritv to Execute. The person or persons executing
this Agreement on behalf of Developer warrant and represent that
they have the authority to execute this Agreement on behalf of
their corporation, partnership or business entity and warrant and
represent that they have the authority to bind Developer to the
performance of its obligations hereunder.
25. Recordation. This Agreement and any amendment or
cancellation hereto shall be recorded in the Office of Official
Records of the County of San Bernardino, by the City Clerk within
the period required by Section 65868.5 of the Government Code.
26. Protection of Mortaaae Holders. Developer and City agree
that this Agreement shall not prevent or limit Developer, in any
manner, at Developer's sole discretion, from encumbering the
Property or any portion thereof or any improvement thereon by any
mortgage, deed of trust or other security device securing financing
with respect to the Property. City acknowledges that the lenders
providing such financing ("Mortgagees") may require certain
Agreement interpretations and modifications and agrees upon
request, from time to time, to meet with Developer and
representatives of such Mortgagees to negotiate in good faith any
such request for interpretation or modification. City will not
unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or
modification is consistent with the intent and purposes of this
Agreement. Any Mortgagee of all or any portion of the Property
shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of
this Agreement shall defeat, render invalid, diminish or
impair the lien of any mortgage on all or any portion of the
13\ R\A 286\01 RIDEVELOP.AGM
11
RES 93-45
Property made in good faith and for value, unless otherwise
required by law.
(b) Any Mortgagee of a mortgage or deed of trust
encumbering all or any portion of the Property which has
submitted a request in writing to the City in the manner
specified herein for giving notices shall be entitled to
receive written notification from City of any default by
Developer in the performance of Developer's obligations under
this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer
under the terms of this Agreement, City shall provide a copy
of that notice to the Mortgagee within ten (10) days of
sending the notice of default to Developer. The Mortgagee
shall have the right, but not the obligation, to cure the
default during the remaining cure period allowed such party
under this Agreement.
(d) Any Mortgagee who comes into possession of all or
any portion of the Property, pursuant to foreclosure of the
mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject
to the terms of this Agreement. Notwithstanding any other
provision of this Agreement to the contrary, no Mortgagee
shall have an obligation or duty under this Agreement to
perform any of Developer's obligations or other affirmative
covenants of Developer hereunder, or to guarantee such
performance; provided, however, that to the extent that any
covenant to be performed by Developer is a condition precedent
to the performance of a covenant by City, the performance
thereof shall continue to be a condition precedent to City's
performance hereunder, and further provided that any sale,
transfer or assignment by any Mortgagee in possession shall be
subject to the provisions of Section 21 of this Agreement.
27. Severability of Terms. If any term, provision, covenant
or condition of this Agreement shall be determined invalid, void or
unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not
rendered impractical to enforce.
28. Subseauent Amendment to Authorizina Statute. This
Agreement has been entered into in reliance upon the provisions of
the Development Agreement Law in effect as of the Agreement Date.
Accordingly, to the extent the subsequent a~endment to the
Government Code would affect the provisions of this Agreement, such
amendment shall not be applicable to the Agreement unless necessary
for this Agreement to be enforceable or unless this Agreement is
modified pursuant to the provisions set forth in the Agreement and
Government Code Section 65868 as in effect on the Agreement Date.
29. Section Headinas. All section headings and
are inserted for convenience only and shall not
construction or interpretation of this Agreement.
subheadings
affect any
30. Incorooration of Recitals and Exhibits.
through J and attached Exhibits "All through "011
incorporated herein by this reference as though fully
Recitals A
are hereby
set forth.
31. Rules of Construction and Miscellaneous Terms.
31.1 Gender. The singular includes the plural; the
masculine gender includes the feminine; Ilshall" is mandatory, IImayll
is permissive.
31.2 Time of Essence. Time is of the essence regarding
each provision of this Agreement in which time is an element.
31.3 Coooeration. Each party covenants to take such
reasonable actions and execute all documents that may be necessary
to achieve the purposes and objectives of this Agreement.
131 RIA 286\01 RIDEVELOP .AGM
12
RES 93-45
32. Effect on Title. Developer and City agree that this
Agreement shall not create an encumbrance on any portion of the
Property which is sold to an ultimate user of all or any portion of
the Property.
The parties have executed this Development Agreement on the
date and year first written above.
FONTANA CORNERS III, a
, ifornia limited partnership
~A..i',.6.DIJL"'D I A NEyAi)A L.IMrtF..J) tAe-TNEt'6.tI/lJ
I; 115 GENEt'AL.- ~"..,'-\Ev
\, I C~ADI..... lNG. A NEyADA r6~fbJLA7IC,J
:c..tL 0....... \~. ,~~li;,
J\AJ..-?~"I U Ut:.AfA.Y ,)/(1= P~:r::.SIUE^Jr
Its: General Partner
"
"Developer It
CITY OF SAN BERNARDINO,
a municipal corpo ati
B~ ~ .-.--//
W.R. Hol omb, Mayor
nCity"
Signed and Certified that a copy
of this document has been delivered
to the City Administrator of the City
By:
~~ ~cL
Rache Clark, City Clerk
Approved as to form and legal content:
James F. Penman,
:~:y AtJZ; ~ An M-j
13\R\A286\OIR\DEVELOP,AOM
13
RES 93-45
ALL.PURPOSE ACKNOWLEDGMENT
5;!t"
State of
County of ~~~ /7 u }
On /lltZftE ~/t?<&' before me'~~/Z')'TlEOF{~1.,._J EOOE.NOTAAY UBlIC/J-t~
personally appeared (LJ, ?, '~.i.r ~6, ,/?Jlv~
V NAME(S) OF SIGNEA(S) ~ ~
o personally known to me . OR -fl'Proved to me on the basis of satisfactory eVidence
to be the "'person(s) whose !l2!!Ie(s~/are
subscribed to the within instrument and ac.
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that bY....!2i.s/her/their
siqnature(s) on the instrument the person(s),
orthe entity upon behalf of which the person(s)
acted, executed the instrument. -
Witne s hand and officia e I.
. OFFICIAL SEAL
MARGIE VANCE
lD . NOTARY PUBLIC. CAUFORNIA
SAN BERNARDINO COUNTY
My Comm expires Feb 10. 1995
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it co
THIS CERTIFICATE
MUST BE ATTACHED
TO THE DOCUMENT
DESCRIBED AT RIGHT:
Title or Type of Document
Number of Pages 3.:J Date of Document
Signer(s) Other Than Named Above
NO 209
CAPACITY CLAIMED BY SIGNER
~DIVIDUAL(S)
(0 CORPORATE
OFFICER(S)
TITLE(S)
o PARTNER(S)
o ATTORNEY-IN-FACT
o TRUSTEE(S)
o SUBSCRIBING WITNESS
o GUARDIAN/CONSERVATOR
o OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY{IES)
~
~ 1991 NATIONAL NOTARY ASSOCIATION. 8236 Remmel Ave.' P.O. Box 7184 . Canoga Park. CA 91304-7184
ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Los Angeles
On it/ f/ q 3 before me<2-lCW'cu(.s ~/!4_ II;; fa, J fuft c.
personally appearedGua~ Jrt If IIrz {y.~7' ,
o personally known to me . OR -)(prOVed to me on the basis of satisfactory evidence to be the person{s)
whose name{s) is/alii subscribed to the within instrument and acknowledged to
me that he/St:lil4:lii eXea.Jted the same in hlsl~ authorized
capacity{ie6), and that by his/her/their signature{s) on the Instrument the
person(s), or the entity upon behalf ofwhidl the person{s) acted, executed the
Instrumenl
WITNESS my hand and official seal,
of
OFFICIAL SEAL
MARIA LUISA STOllER
NOTARY PUBliC. CALIFORNIA
LOS AIlG8.ES COUNlY
My camm. "pi..s DEG 2!, 1~3
CAPACITY CLAIMEP BY SIGNER
o INDlVIDUAl(S) I? L
X CORPORATE AJ.J 10 J Q 1 a.t
OFFICER(S) r
TJTlECSI
o PARTNER(S)
o ATTORNEY-IN_FACT
o TRUSTEE(S)
o SUBSCRIBING WITNESS
o GUARDIANICONSERVATOR
o OTHER:
_ a.....
::::,::ARY:Aftho""h~~Tft::pe:~7-h:;Z:;;;:7-(j;-;,~m~~~ed_m.M
"usr BE ATTACHED N'm...ofP.... &. '7 Dat.of~mont1 #..:JLf 3
TO THE OOCUUENT Slgnel(a) Other Than Named Alxwe
DESCRIBED AT RIGHT:
RES 93-45
STATE OF CALIFORNIA
ss.
COUNTY OF
On this day of , 199 I before me,
, a Notary Public in and for said Count a 8,
personally appeared , y known to me
(or proved to me on the basis of actory evidence) to be the
General Partner of CORNERS III, a California limited
partnershi partnership that executed the within instrument
nowledged to me that said partnership executed it.
Notary Public in and for said
County and State
STATE OF CALIFORNIA
ss.
COUNTY OF SAN BERNARDINO
On this day of , 199 , before me,
---- , a Notary Public in and for said County
and State, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed this instrument as City .71..eminiotrat01./Jlr1{
of the City of San Bernardino and acknowledged tv me that the City
of San Bernardino executed it.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
13IR\A286\OIRIDEVELOP.AOM
14
RES 93-45
LEGAL DESCRIPTION OF PROPERTY
All that certain real property located in the City of San
Bernardino, County of San Bernardino, State of California,
described as follows:
PARCEL NO.1:
THAT PORTION OF SECTIONS 4, 5, 8 AND 9, TOWNSHIP 1 NORTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS THE LINES OF THE GOVERNMENT
SURVEY MAY BE EXTENDED ACROSS THE MUSCUPIABE RANCHO, DESCRIBED AS
FOLLOWS:
BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE,
ACCORDING TO THE PERRIN SURVEY, AT NORTH 89 DEG. 03' WEST, 516.9
FEET FROM CORNER NO. 28; THENCE SOUTH 22 DEG. 36' WEST, 626.13 FEET
TO CORNER NO.2; THENCE SOUTH 41 DEG. 08' WEST, 241.56 FEET TO
CORNER NO.3; THENCE SOUTH 10 DEG. 58' EAST, 127.05 FEET TO CORNER
NO, 4; THENCE SOUTH 41 DEG. 09' WEST, 283.26 FEET TO CORNER NO.5;
THENCE SOUTH 16 DEG. 19' WEST, 735.98 FEET TO CORNER NO.6; THENCE
WEST 374.00 FEET TO CORNER NO.7; THENCE NORTH 1823.2 FEET TO
CORNER NO. 8 ON LINE 27-28 MUSCUPIABE RANCHO; THENCE SOUTH 89 DEG.
03' EAST, 1142.6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER
NO.1, THE PLACE OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LAND CONVEYED TO C.F. MARTIN
BY DEED DATED DECEMBER 8, 1921 AND RECORDED FEBRUARY 22, 1922, IN
BOOK 740, PAGE 199, OF DEEDS; THENCE NORTH 89 DEG. 53' EAST ALONG
THE SOUTH LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST
CORNER OF SAID MARTIN LAND; THENCE NORTH 16 DEG. 12' EAST ALONG THE
EAST LINE OF SAID MARTIN LAND, 291.68 FEET; THENCE SOUTH 67 DEG.
12' WEST, 345.0 FEET; THENCE SOUTH 52 DEG. 03' WEST, 174.27 FEET TO
A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 0 DEG.
07' EAST ALONG SAID WEST LINE, 40.0 FEET TO THE POINT OF BEGINNING.
PARCEL NO.2:
GOVERNMENT LOT 16 AND THAT PORTION OF GOVERNMENT LOTS 14 AND 15,
SECTION 5, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT TOWNSHIP PLAT THEREOF,
APPROVED BY THE SURVEYOR GENERAL ON JUNE 24, 1898, DESCRIBED AS
FOLLOWS:
COMMENCING AT MONUMENT NO. 27 OF THE MUSCUPIABE RANCHO, SAID
MONUMENT BEING THE SOUTHWESTERLY CORNER OF SAID GOVERNMENT LOT 14;
THENCE NORTH 58 DEG. 14' 40" EAST, 1035.33 FEET TO THE TRUE POINT
OF BEGINNING; THENCE NORTH 82 DEG. 11' 40" EAST, 720.00 FEET;
THENCE NORTH 0 DEG. 08' EAST, 456 FEET, MORE OR LESS, TO THE NORTH
LINE OF SAID GOVERNMENT LOT 15; THENCE EASTERLY ALONG THE NORTH
LINE OF SAID GOVERNMENT LOTS 15 AND 16, 1938 FEET, MORE OR LESS, TO
THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 16; THENCE SOUTHERLY
ALONG THE EAST LINE OF SAID GOVERNMENT LOT 16, 1093 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID GOVERNMENT LOT 16, SAID
CORNER BEING ON THE SAID MUSCUPIABE RANCHO LINE; THENCE NORTH 89
DEG. WEST ALONG THE SOUTH LINE OF SAID GOVERNMENT LOTS 16, 15 AND
14, AND ALONG THE MUSCUPIABE RANCHO LINE, 2684 FEET, MORE OR LESS,
TO A POINT, SAID POINT BEING SOUTH 89 DEG. EAST, 883.9 FEET FROM
SAID MONUMENT NO 27 OF RANCHO MUSCUPIABE; THENCE NORTH 0 DEG. 21'
WEST, 560.34 FEET TO THE POINT OF BEGINNING.
PARCEL NO.3:
THE NORTH 1/2 OF THE SOUTHWEST 1/4, AND THE SOUTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
(EXHIBIT HAil)
(Page 1 of 3)
13\R\A286\OI RIDEVELOP.AGM
RES 93-45
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898.
PARCEL NO.4:
GOVERNMENT LOT 5, SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898.
PARCEL NO.5:
THAT PORTION OF SECTIONS 4, 5, 8 AND 9, TOWNSHIP 1 NORTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS THE LINES OF THE GOVERNMENT
SURVEY MAY BE EXTENDED ACROSS THE MUSCUPIABE RANCHO, DESCRIBED AS
FOLLOWS:
BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE,
ACCORDING TO THE PERRIN SURVEY, AT NORTH 89 DEG. 03' WEST, 516.9
FEET FROM CORNER NO. 28; THENCE SOUTH 22 DEG. 36' WEST, 626.13 FEET
TO CORNER NO.2; THENCE SOUTH 41 DEG. 08' WEST, 241.56 FEET TO
CORNER NO.3; THENCE SOUTH 10 DEG. 58' EAST, 127.05 FEET TO CORNER
NO.4; THENCE SOUTH 41 DEG. 09' WEST, 283.26 FEET TO CORNER NO.5;
THENCE SOUTH 16 DEG. 19' WEST, 735.98 FEET TO CORNER NO.6; THENCE
WEST 374.00 FEET TO CORNER NO.7; THENCE NORTH 1823.2 FEET TO
CORNER NO. 8 ON LINE 27-28 MUSCUPIABE RANCHO; THENCE SOUTH 89 DEG.
03' EAST, 1142.6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER
NO.1, THE PLACE OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LAND CONVEYED TO C.F. MARTIN
BY DEED DATED DECEMBER 8, 1921 AND RECORDED FEBRUARY 22, 1922, IN
BOOK 740, PAGE 199, OF DEEDS; THENCE NORTH 89 DEG. 53' EAST ALONG
THE SOUTH LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST
CORNER OF SAID MARTIN LAND; THENCE NORTH 16 DEG. 12' EAST ALONG THE
EAST LINE OF SAID MARTIN LAND, 291,68 FEET; THENCE SOUTH 67 DEG.
12' WEST, 345.0 FEET; THENCE SOUTH 52 DEG. 03' WEST, 174.27 FEET TO
A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 0 DEG.
07' EAST ALONG SAID WEST LINE, 40.0 FEET TO THE POINT OF BEGINNING.
PARCEL NO.6:
GOVERNMENT LOT 16 AND THAT PORTION OF GOVERNMENT LOTS 14 AND 15,
SECTION 5, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT TOWNSHIP PLAT THEREOF,
APPROVED BY THE SURVEYOR GENERAL ON JUNE 24, 1898, DESCRIBED AS
FOLLOWS:
COMMENCING AT MONUMENT NO. 27 OF THE MUSCUPIABE RANCHO, SAID
MONUMENT BEING THE SOUTHWESTERLY CORNER OF SAID GOVERNMENT LOT 14;
THENCE NORTH 58 DEG. 14' 40" EAST, 1035.33 FEET TO THE TRUE POINT
OF BEGINNING; THENCE NORTH 82 DEG. 11' 40" EAST, 720.00 FEET;
THENCE NORTH 0 DEG. 08' EAST, 456 FEET, MORE OR LESS, TO THE NORTH
LINE OF SAID GOVERNMENT LOT 15; THENCE EASTERLY ALONG THE NORTH
LINE OF SAID GOVERNMENT LOTS 15 AND 16, 1938 FEET, MORE OR LESS, TO
THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 16; THENCE SOUTHERLY
ALONG THE EAST LINE OF SAID GOVERNMENT LOT 16, 1093 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID GOVERNMENT LOT 16, SAID
CORNER BEING ON THE SAID MUSCUPIABE RANCHO LINE' THENCE NORTH 89
DEG. WEST ALONG THE SOUTH LINE OF SAID GOVERNMENT LOTS 16, 15 AND
14, AND ALONG THE MUSCUPIABE RANCHO LINE, 2684 FEET, MORE OR LESS,
TO A POINT, SAID POINT BEING SOUTH 89 DEG. EAST, 883.9 FEET FROM
SAID MONUMENT NO. 27 OF RANCHO MUSCUPIABE; THENCE NORTH 0 DEG. 21'
WEST, 560.34 FEET TO THE POINT OF BEGINNING.
(EXHIBIT nAil)
(Page 2 of 3)
13\RIA286\OI RIDEVELOP.AOM
RES 93-45
"
PARCEL NO.7:
THE NORTH 1/2 OF THE SOUTHWEST 1/4, AND THE SOUTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898.
PARCEL NO.8:
GOVERNMENT LOT 5, SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898.
(EXHIBIT !lA")
(Page 3 of 3)
] 3\R\A 286\01 R\DEVELOP .AGM
RES 93-45
....
STANDARDS AND SPECIFICATIONS FOR
DEVELOPMENT OF THE PROPERTY: PARADISE HILLS SPECIFIC PLAN
THAT CERTAIN SPECIFIC PLAN, COMMONLY
"~ISE HILLS SPECIFIC PLAN", ADOPTED
- '.('11 A '" ~ ;:2.,;;2 ,199:;?' PURSUANT
COVENANT TO HE SECTION 65450, ET. SEQ.
(EXHIBIT "B")
13\R\A286\OI RIDE!VELOP .AOM
KNOWN AS THE
BY THE CITY ON
TO CALIFORNIA
(Page 1 of 1)
RES 93-45
SCHEDULE OF APPLICABLE FEES
1.
All building permits and
limited to, electrical,
miscellaneous fees.
plan check fees, including, but not
mechanical, grading, plumbing and
2. Land use application fees, including but not limited to,
Tentative Tracts, Parcel Maps, Precise Plan of Design and,
Environmental Review fees.
3. Public Works Department review fees, including but not limited
to, street improvement plans, improvement inspection fees,
encroachment permits, and map review fees.
4. Sign permit review fees.
(EXHIBIT nen)
13\R\A286\OIRIDEVELOP.AOM
(Page 1 of 1J
RES 93-45
REIMBURSEMENT AGREEMENT FOR CONSTRUCTION
OF PUBLIC IMPROVEMENTS
THIS AGREEMENT ("Agreement") is made this
day of
, 1993 by and between the City of San Bernardino, a
municipal corporation (the "City") I and Fontana Corners, III, a
California limited partnership
(hereinafter referred to as
"Developer") .
RECITALS
A. Developer owns approximately 404 acres of real property
located within the City (the "Developer's Property"), more
particularly described on Exhibit "A" attached hereto and
incorporated herein by reference.
B. City has adopted the San Bernardino Development Code (the
"Code") establishing various development impact fees to offset the
cost of development of City infrastructure.
C. As a condition to the approval of a development agreement
between Developer and the City (the UDA"), City has required
Developer to design,
construct and install certain public
facilities to serve Developer's Property and other properties (the
"Improvements"). The Improvements are identified in the Specific
Plan adopted as part of the Project (as such term is defined in the
DA) .
D. The DA provides that engineering benefit zone studies
(collectively the "EBZ Study") will be done by City at Developer's
cost to determine which of the Improvements benefit property in
addition to Developer's Property (the "Benefitting Propertiesll).
City agrees to reimburse Developer for the pro rata share of the
costs of those Improvements that also benefit other properties
(collectively the I1Pacilitiesn). The amount of the reimbursement
will be determined by the EBZ Study and will be made from funds
collected by City from the owners or developers of the Benefitting
Properties.
E. Developer is willing to advance the costs of designing,
constructing, installing and inspecting the Reimbursable Facilities
subject to reimbursement from the Benefitting Properties.
(EXHIBIT nD")
13\RIA 286101 R\DEVEl.OP .AGM
(Page 1 of 9)
RES 93-45
TERMS
A. Desion and Construction of Imorovements.
Pursuant to the provisions of the DA, including the
timing set forth therein, Developer shall be responsible for
designing,
constructing,
installing and providing for the
inspection of the Improvements. The plans and specifications for
the work shall be approved by City prior to construction, and the
design, construction and installation of the Improvements shall be
to the satisfaction of City in its sole and reasonably exercised
discretion.
B.
Source
and
Method
of
Reimbursement:
Maximum
Reimbursement.
1. City shall reimburse Developer for the costs,
including an amount attributable to interest computed at the then
existing Bank of America's Reference Rate upon the outstanding
costs incurred,
associated with the design,
construction,
installation and inspection of the Facilities, in an amount
determined by the EBZ Study:
(a) from then-avai~able development
impact fees collected pursuant to the Code from subsequent
developers of Benefitting Properties; (b) from the proceeds of any
community facilities district or assessment district fonned, in
part, to pay the same; or (c) from other fees that City may impose
upon
any
developers
of
the
Benefitting
Properties
(the
"Reimbursement Funds").
City shall exercise its pOlice power to
the maximum lawful extent to collect fees for the pro rata share of
the costs for the Reimbursable Improvements as detennined by the
EBZ Study, including enactment of new ordinances if necessary.
Reimbursement shall be from the Reimbursement Funds and from no
other source.
2. The total amount of the reimbursement obligation
over the life of this Agreement shall be as detennined in the EBZ
Study.
3. City shall disburse reimbursements due to Developer
under this Agreement semi-annually from the Reimbursement Funds
collected from developers of Benefitting Properties as provided in
(EXHIBIT liD")
I3IRIA286\OIR\DBVBLOP.AGM
(Page 2 of 9)
RES 93-45
this Agreement. The first reimbursement shall occur no later than
6 months following City's formal acceptance of the Improvements.
4. (See Exhibit "D", Page 3A of 9 attached.)
C. Term of Reimbursement Obliqation.
City's obligation, under this Agreement I to reimburse
Developer for the Facilities shall continue for a period of thirty
(30) years from the date of the DA, unless the obligation is sooner
satisfied by payment in full of all reimbursable amounts due and
owing to Developer under this Agreement. After such thirty-year
period or payment
in full,
first,
the
whichever occurs
reimbursement process shall cease.
D. Bids and Contracts.
Developer shall be solely responsible for securing
appropriate bids and awarding the contract for construction and
installation of the Improvements in compliance with all applicable
federal and state laws. Developer shall defend, indemnify and hold
City, its elected officials, officers, agents and employees free
and harmless from any and all claims, actions or liability
whatsoever, including attorney's fees and court costs, arising out
of or in connection with Developer's construction of the
Improvements.
E. Insoection.
City shall have the right at all times to inspect the
construction of the Improvements to measure compliance with City
plans and specifications.
F. Indemnification: Insurance.
1. Developer shall defend, indemnify and hold City, its
elected officials, officers, employees and agents free and harmless
from any and all liability from loss, damage, or injury to or death
of persons or property in any manner arising out of or incident to
Developer's performance of this Agreement, including without
limitation all consequential damages, attorney's fees and court
costs, resulting from the negligence of Developer or Developer's
agents. This indemnity shall extend to any claims arising because
Developer has failed to properly secure any necessary easements,
land rights, contracts, or approvals, but shall not extend to any
claims arising out of the negligence of City.
(EXHIBIT liD")
13\R\A2S6101 RID!<V!<LOP.AOM
(Page 3 of 9)
RES 93-45
'-
4. Notwithstanding anything to the contrary contained
herein, the parties hereto agree that any reimbursement made by
City to Developer hereunder shall be paid, initially, to any
community facilities district or other public financing entity
(collectively "CFD")
established by the City pursuant to
Developer's request made in
accordance with the provisions of
Section 11.5 of the DA.
Such reimbursements shall, when and if
paid to a CFD, be applied by City or the CFD to reduce the
principal amount of any bonds of such CFD then outstanding and
Developer shall have no right to receive the same.
In the event
such reimbursements shall become available at a time when there are
no outstanding CFD bonds with respect to Developer's Property, the
parties hereto agree that such reimbursements shall be paid to
Developer who may retain the same. In such event neither the City
nor any CFD shall have any claims to any portion of such
reimbursement.
(EXHIBIT liD")
1\R\A286\OIR\OBVBLPJA.AGM
(Page 3A of 9)
RES 93-45
2. Developer shall require all persons doing work on
the Improvements, including their contractors and subcontractors,
to obtain and maintain insurance of the types and in the amounts
described below in a form and with carriers satisfactory to City.
a.
Commercial
General
Liabilitv
Insurance.
Occurrence version commercial general liability insurance or
equivalent form with a limit of not less than $1,000,000.00 each
occurrence shall be maintained.
If such insurance contains a
general aggregate limit, it shall apply separately to this
Agreement or be no less than two times the occurrence limit. Such
insurance shall:
i.
Name
City,
its
elected
officials,
officers, employees and agents as insureds with respect to
performance of this Agreement.
The coverage shall contain no
special limitations on the scope of its protection afforded to the
above-listed insureds.
ii. Be primary with respect to any insurance
or self insurance programs covering City, its elected officials,
officers, employees and agents.
iii. Contain standard separation of insureds
provisions.
b.
Business
Automobile
Liabilitv
Insurance.
Business automobile liability insurance or equivalent form with a
limit of not less than $500,000.00 each accident shall be
maintained. Such insurance shall include coverage for owned, hired
and non-owned automobiles.
c.
Workers' Comoensation Insurance.
Workers'
compensation insurance with statutory limits and employers'
liability insurance with limits of not less than $1,000,000.00 each
accident shall be maintained.
d. Other Insurance Reauirements. Developer shall:
~
i.
Prior to taking any actions under this
Agreement, furnish City with properly executed certificates of
insurance which shall clearly evidence all insurance required in
this Section and provide that such insurance shall not be canceled,
(EXHIBIT "0")
13\R\A2S6\OIRIDEVELOP.AOM
(Page 4 of 9)
RES 93-45
.....
allowed to expire or be materially reduced in coverage except on
forty-five (45) days' prior written notice to City.
ii. Provide to City certified copies of
endorsements, and policies if requested by City, and properly
executed certificates of insurance evidencing the insurance
required herein.
iii. Replace or require the replacement of
certificates, policies and endorsements for any insurance required
herein expiring prior to completion and acceptance of the
Improvements.
iv. Require to be maintained all insurance
required herein from the time of execution of this Agreement until
the acceptance of the Improvements.
v. Require the placement of all insurance
required herein with insurers licensed to do business in
California.
G. Commencement of Construction and Insoection.
Developer and its contractors and subcontractors shall
not commence construction of any Improvements until Developer has
received written authorization from City to proceed.
All work
performed on the Improvements shall be done in substantial
compliance with City-approved plans, specifications and contract
documents and in a good and workmanlike manner. All work performed
by Developer, its contractors and subcontractors to construct the
Improvements shall be subject to inspection by City, and Developer
shall require its employees, contractors and agents to comply with
all instructions given by City during construction of the
Improvements.
All fees and costs to construct the Improvements
shall be borne solely by Developer, subject to reimbursement as
provided herein.
Inspection by City or its em~Loyees or agents
shall not relieve Developer of its liability, if any, for design
defects or improper or inadequate workmanship.
H. Comoliance with Aoolicable Laws.
Developer shall require that all work performed on the
Improvements is performed in a manner which complies with all
applicable federal, state, county and local government laws,
(EXHIBIT "D")
13IR\A286\OIRIDEVELQP.AGM
(Page 5 of 9)
RES93-45
regulations and rules, including all rules and regulations of City,
as these rules and regulations may be modified or changed from time
to time.
I. prevailinq Waaes.
Developer is aware of the requirements of California
Labor Code Sections 1770 et ~., which would require the payment
of prevailing wage rates and the performance of other requirements
if it were determined that Developer's contracts with its
contractor{s) to construct the Improvements were a public works
contract as defined in Sections 1720 and 1720.2 of the California
Labor Code. The parties hereto agree, however, that:
(i) to the
maximum extent permitted by law, Developer's contracts with its
subcontractors shall not be deemed "public works contracts II as
defined in the California Labor Code; and (ii) none of the parties
hereto shall take a position inconsistent with the foregoing
treatment of Developer's contracts. Developer agrees to hold City
and its elected officials, officers, employees and agents harmless
from any claim or liability including, without limitation,
attorneys' fees and court costs, arising from any failure or
alleged failure to comply with these provisions of the California
Labor Code.
J. Contractor Licenses.
All work performed on the Improvements shall be done only
by contractors licensed in the State of California and qualified to
perform the type of work required.
K. Acceotance of Work.
Upon completion of the Improvements to the satisfaction
of City, the Improvements shall be presented to the San Bernardino
City Council for dedication and acceptance, and for authorization
to file a Notice of Completion. The City Council may accept the
Improvements if it determines that the Improvements were
constructed in accordance with the approved plans, specifications
and contract documents, that they operate satisfactorily, and that
all other requirements of this Agreement have been satisfied. Upon
acceptance of the improvements, Developer shall assign to City all
of Developer's rights and remedies, including warranties, as set
(EXHIBIT "0")
13IR\A286\OI RIDEVEI...OP.AOM
(Page 6 of 9)
RES 93-45
forth in the approved contract documents, and thereafter City shall
have the same recourse under said contract documents that City
would have had if City itself had engaged Developer's contractor to
construct the Improvements.
L. Liabilitv for Work Prior to Formal Acceotance.
Until the City Council has formally accepted the
Improvements, Developer shall be solely responsible for all damage
to the work caused by or arising out of Developer's or its
contractor's or subcontractor's negligence and for all damages or
injuries to any person or property at the work site caused by or
arising out of Developer's or its contractor's or subcontractor's
negligence, except damage or injury due to the negligence of City,
its agents or employees.
M. Guarantee.
Developer shall require its contractor(s) to provide one
or more bonds, in form and content acceptable to City, to guarantee
all work and materials for the Improvements to be free from all
defects due to faulty materials or workmanship for a period of one
(l) year after the date of formal acceptance of the work by City.
N. Record Drawinqs.
Prior to acceptance of the Improvements by the City
Council, Developer shall provide City with three (3) copies of
record drawings with certification by a licensed engineer in the
State of California as to accuracy and completeness. Developer's
contractor(s) shall be solely responsible and liable for insuring
the completeness and accuracy of the record drawings.
O. Ownershio Of the Imorovements.
From and after acceptance of the Improvements by formal
action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
P. AODroval of ImDrovement Costs.
Upon completion and final acceptance of the Improvements
by formal action of the City Council, Developer shall, within
thirty (30) days, provide City with an itemized bill showing all
reasonable costs, including an amount attributable to interest at
the Bank of America's Reference Rate, incurred by Developer to
(EXHIBIT "D") (Page 7 of 9)
131RIA286\OI RIDEVELOP.AGM
RES 93-45
, .
design, construct and install the Improvements.
Such reasonable
costs shall be limited to costs of acquiring necessary land and
easements not currently owned by Developer, permit fees, and costs
directly and necessarily related to the design, construction and
installation of the Improvements. Developer agrees to provide City
with bills evidencing costs incurred.
Developer also agrees to
provide City with any additional information as to any items shown
on the cost bill as requested by City to substantiate the costs.
Following completion of its analysis, City shall advise Developer,
in writing, of any fees or costs shown on the cost bill which City
will disallow and the reasons why these items are being disallowed
by City.
Only those costs approved by City, in its reasonably
exercised discretion, will be allowed for reimbursement in
accordance with this Agreement.
Q. Notice.
Any notices required or desired to be sent pursuant to
this Agreement shall be addressed as follows:
City
Develooer
City of San Bernardino
300 North "D" Street,
6th Floor
San Bernardino, CA 92418
Attn: Director of Development
Fontana Corners III
1875 Century Park East,
Suite 1880
Los Angeles, CA 90067
Attn: Mazen Habiby
R. Amendment.
This Reimbursement Agreement may be amended by the
parties hereto. Such amendment or amendments shall not require an
amendment to the DA.
S. Attornev's Fees.
In the event any action is conunenced to enforce or
interpret any term or condition of this Agreement, in addition to
costs and any other relief, the prevailing party shall be entitled
to reasonable attorney's fees.
T. Entire Aoreement.
This Agreement contains the entire agreement of the
parties hereto with respect to the matters contained herein.
(EXHIBIT liD")
t3\R\A286\OI RIOEVEl..OP.AGM
(Page 8 of 9)
RES 93-45 "
. .
U. Assianment.
This Agreement shall not be assigned without the written
consent of the parties hereto, and any assignment without such
V. Time of Essence.
written consent shall be void and ineffective.
Time is of the essence of this Agreement.
FONTANA CORNERS III, a
California limited partnership
'by'iA~4.l")\ ) LiI), A N~VA.DA UMIIED PMi1JE.i"SHII-)
'1"'<.:' G;EJIJ8"'AL- PAf""T.ut.<...t
A.<ADI.g.i^K> .. I'iE~~6i<ibe,"'TID,J
&e..r...1 - AL DA.I2.,. .
MA71? N f.I. jH BI flY Vlr.i: .'CESlllEN 1
Its: General Partner
IIDeveloperll
CITY OF SAN BERNARDINO,
a municipal corporatio
/0/4
By'
"City"
Signed and Certified that a copy
of this document has been delivered
to the City Administrator of the City
By: Ra~~k,~erk
Approved as to form and legal content:
James F. Penman,
City Attorney:
~~~
By:
(EXHIBIT "DIl)
13\R\A2S6\OI RIDEVELOP.AGM
(Page 9 of 9)