HomeMy WebLinkAbout1993-154
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RESOLUTION NO.
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RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING THE NEGATIVE
DECLARATION OF ENVIRONMENTAL IMPACT AND THE MITIGATION
3 MONITORING/REPORTING PROGRAM; AND ADOPTING AND AUTHORIZING THE
EXECUTION OF DEVELOPMENT AGREEMENT NO. 92-01 (TRICITY CORPORATE
CENTRE PROJECT).
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
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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
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B.
WHEREAS, the General Plan made provisions for the
adoption of development agreements and development plans to further
implement the goals, objectives and policies; and
C.
WHEREAS, Development Agreement No. 92-01 will vest the
developer with the right to develop the subject property in
15 accordance with the TriCity Corporate Centre Land Use Plan And
16 Design Guidelines
(Land Use Plan)
and will ensure that
17 infrastructure and improvements are constructed for the 152.7 acre
18 project site which is generally located north of 1-10 and the Santa
19 Ana River al'l"d between Waterman Avenue and the Gage Canal. The
20 Tricity Corporate Centre Project includes Development Code
21 Amendment No. 92-13, which will add the Land Use Plan into the
22 Development Code as an overlay district and Conditional Use Permit
23 No. 92-33, which will provide public review of eight (8) buildings
24 proposed to exceed 4 stories (or 52 feet) in height at locations
25 within the project area as specified by the Land Use Plan; and
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RES 93-154
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RESOLUTION ADOPTING NEGATIVE DECLARATION AND AUTHORIZING EXECUTION
OF DCA NO. 92-01 (TRICITY CORPORATE CENTRE PROJECT)
D.
WHEREAS, an Initial Study was prepared for the project
and tiered from the 1983 Environmental Impact Report (EIR) that was
prepared for the TriCity Redevelopment Area Development Plan in
accordance with section 15180 of the California Environmental
Quality Act (CEQA) Guidelines which provides for the evaluation of
Project under the
the Tricity Corporate
contents and
Centre
findings of the original EIR and the determination of whether any
subsequent environmental documentation is required based on current
environmental conditions and/or new information; and
E.
WHEREAS, on December 17, 1992 the Environmental Review
12 Committee determined that while Development Code Amendment No. 92-
13 13, Conditional Use Permit No. 92-33 and Development Agreement No.
14 92-01 could result in significant environmental effects on a
15 regional scale (based on the overall square footage of the
16 project), the effects can be mitigated to below a level of
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significance; and
F. WHEREAS, the Initial Study and the Mitigated Negative
Declaration were made available to the public, responsible agencies
and other interested persons for their review and comment from
December 25, 1992 to January 22, 1993, as required by CEQA; and
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WHEREAS, verbal and written comments were received on the
23 Initial study and the Mitigated Negative Declaration; and
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WHEREAS, these comments were responded to both orally and
25 in writing as required by CEQA; and
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WHEREAS, on January 28, 1993 the Development Review
27 Committee recommended clearance of the Development Code Amendment,
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RES 93-154
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RESOLUTION ADOPTING NEGATIVE DECLARATION AND AUTHORIZING EXECUTION
OF DCA NO. 92-01 (TRICITY CORPORATE CENTRE PROJECT)
2 Conditional Use Permit and Development Agreement to the Planning
3 Commission; and
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J.
WHEREAS, the Planning commission conducted a noticed
5 public hearing on April 20, 1993 in order to receive public
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and written and oral comments on Development Code
No. 92-13, Conditional Use Permit No. 92-33 and
Amendment
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Development Agreement No. 92-01; and
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WHEREAS, the proposed Mitigation Monitoring/Reporting
10 Program was reviewed by the Planning commission in compliance with
11 CEQA; and
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WHEREAS, the Planning Commission, after receiving public
13 testimony,
recommended adoption of the Mitigated Negative
14 Declaration, adoption of the Mitigation Monitoring/Reporting
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Program, approval of Development Code Amendment No. 92-13, approval
of Conditional Use Permit No. 92-33 and approval of Development
Agreement No. 92-0l; and
M. WHEREAS, the Mayor and Common Council conducted a noticed
public hearing on May 24, 1993 and fully reviewed and considered
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the
Mitigation
Declaration,
Mitigated
Negative
21 Monitoring/Reporting Program, Development Code Amendment No. 92-13,
22 Conditional Use Permit No. 92-33 and Development Agreement No. 92-
23 01, the Planning Division staff reports and the recommendation of
24 the Planning Commission.
25 SECTION 2. NEGATIVE DECLARATION
26 NOW, THEREFORE BE IT RESOLVED, FOUND AND DETERMINED by the
27 Mayor and Common Council that the proposed Development Agreement
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RES 93-154
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RESOLUTION ADOPTING NEGATIVE DECLARATION AND AUTHORIZING EXECUTION
OF DCA NO. 92-01 (TRICITY CORPORATE CENTRE PROJECT)
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no significant effect on the environment,
and the
Negative Declaration heretofore prepared
Mitigated
by the
4 Environmental Review committee as to the effect of this proposed
5 Agreement is hereby ratified, affirmed and adopted.
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SECTION 3. MITIGATION MONITORING/REPORTING PROGRAM
BE IT FURTHER RESOLVED by the Mayor and Common Council that
8 the Mitigation Monitoring/Reporting Program is hereby ratified,
9 affirmed and adopted. The Mitigation Monitoring/Reporting Program
10 is attached hereto as Exhibit C to Attachment A (Development
11 Agreement) and incorporated herein by reference. The Mitigated
12 Negative Declaration and the Mitigation Monitoring/Reporting
13 Program reflect the independent review and analysis and the
14 independent judgment of the City of San Bernardino.
15 SECTION 4. DEVELOPMENT AGREEMENT FINDINGS
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BE IT FURTHER RESOLVED by the Mayor and Common Council of the
city of San Bernardino that:
A. Development Agreement No. 92-01 is not in conflict with
the goals, objectives and policies of the General Plan.
B.
Development Agreement No. 92-01 is consistent with the
Development Code.
c. Development Agreement No. 92-01 will promote the welfare
and public interest of the City.
SECTION 5. DEVELOPMENT AGREEMENT ADOPTION
BE IT FURTHER RESOLVED by the Mayor and Common Council that:
A. Development Agreement No. 92-01 is hereby adopted and
will govern the development of the TriCity Corporate
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RES 93-154
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RESOLUTION ADOPTING NEGATIVE DECLARATION AND AUTHORIZING EXECUTION
OF DCA NO. 92-01 (TRICITY CORPORATE CENTRE PROJECT)
Centre Project area as specifically described in the
Development Agreement labeled Attachment A, a copy of
which is attached and incorporated herein by reference.
B.
In addition to the Mitigation Monitoring/Reporting
Program (EXhibit C), Development Agreement No. 92-01
includes the following documents as exhibits: 1.) Legal
Description of Property (Parcel Maps Attached) (EXhibit
A-I) ;
2.) Legal Description of Landfill (Parcel Maps
Attached) (Exhibit A-2); and,
3.) Tricity corporate
Centre Land Use Plan And Design Guidelines (Exhibit B).
Copies of Exhibits A-I, A-2 and B are labeled (as
indicated) ,
attached and
incorporated herein by
reference.
C.
The Mayor is hereby authorized and directed to execute,
on behalf of said City, Development Agreement No. 92-01.
D.
The authorization to execute Development Agreement No.
92-01 is rescinded if the parties to the agreement fail
to execute it within sixty (60) days of the passage of
this Resolution.
E.
Development Agreement No. 92-01 shall take effect upon
the effective date of the adoption of this Resolution.
SECTION 6. NOTICE OF DETERMINATION
The Planning Division is hereby directed to file a Notice of
Determination with the County Clerk of the County of San Bernardino
certifying the city's compliance with the California Environmental
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RES 93-154
1 RESOLUTION ADOPTING NEGATIVE DECLARATION AND AUTHORIZING EXECUTION
OF DCA NO. 92-01 (TRICITY CORPORATE CENTRE PROJECT)
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Quality Act in preparing the Negative Declaration and Mitigation
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MonitoringlReporting Program.
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SECTION 7. RECORDATION
The developer shall record the Development Agreement in the
7 Office of the County Recorder no later than ten (10) days after it
8 is executed by the parties.
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RES 93-154
1 RESOLUTION ...ADOPTING THE NEGATIVE DECLARATION OF ENVIRONMENTAL
IMPACT AND THE MITIGATION MONITORING/REPORTING PROGRAM; AND
2 ADOPTING AND AUTHORIZING THE EXECUTION OF DEVELOPMENT AGREEMENT NO.
92-01 (TRICITY CORPORATE CENTRE PROJECT).
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I HEREBY CERTIFY that the foregoing resolution was duly
5 adopted by the Mayor and Common Council of the city of San
6 Bernardino at a
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reqular
meeting therefore held on the
24th day of
May
, 1993, by the following vote to
8 wit:
council Members
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10 ESTRADA
AYES
NAYS
ABSTAIN
ABSENT
--1L-
REILLY
--1L-
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12 HERNANDEZ
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--1L-
MAUDSLEY
----X..-
MINOR
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----X..-
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POPE-LUDLAM
----X..-
MILLER
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The foregoing resolution is hereby approved this~l,H\
Mav , 1993.
Approved as to
form and legal content:
24 JAMES F. PENMAN
city ttorney
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Res. 93-154
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into on July 6, 1993, between
Rancon Realty Fund IV, a California limited partnership, and Rancon Realty Fund V, a
California limited partnership (collectively, "Developer") and the City of San Bernardino, a
municipal corporation ("City"). The Developer and the City will sometimes be collectively
referred to in this Agreement as the "Parties".
RECITALS
A. On May 24, 1993, the City's Common Council ("Council") adopted a mitigated
negative declaration ("Mitigated Negative Declaration") under the California Environmental
Quality Act and the regulations promulgated thereunder ("CEQA") and, based on the Mitigated
Negative Declaration, conducted a first reading of the ordinance enacting Development Code
Amendment No. 92-13 ("Development Code Amendment") and approved Conditional Use
Permit No. 92-33 ("Conditional Use Permit"), a mitigation monitoring and reporting program
("Mitigation Monitoring Program") and Development Agreement No. 92-01 ("Development
Agreement"). By approving the Development Agreement, the City vested the Developer's rights
under the Development Code Amendment and the Conditional Use Permit, to develop the project
which is the subject of the Development Agreement ("Project") on the terms and conditions in
the Development Agreement The Mitigated Negative Declaration, Mitigation Monitoring
Program, Development Code Amendment, Conditional Use Permit and Development Agreement
and all of the Developer's rights under the same will sometimes be collectively referred to in
this Agreement as the "Entitlements".
B. Under the City's Charter, Ordinances and Resolutions and under applicable law,
after the running ofthe applicable periods for referendum and/or judicial review, the Conditional
Use Permit and the Development Agreement became final and effective without further action
of the Council being required. However, under the City's Charter, Ordinances and Resolutions
and under applicable law, the ordinance enacting the Development Code Amendment will not
become final and effective until the Council conducts a second reading and adopts the ordinance
and the applicable periods for referendum and/or judicial review have expired. Under CEQA,
the period for initiation of judicial review of the Mitigated Negative Declaration expired on or
about June 30, 1993.
C. After May 24, 1993, disputes and differences arose between the Developer and
the City regarding the Entitlements. The Developer contended that the Entitlements were in the
best interests of the City and its citizens and that the Council was obligated to conduct the
second reading of the ordinance and adopt the Development Code Amendment The City
disputed some of the Developer's contentions based on the concern that the Developer's exercise
of the Entitlements could adversely impact future development in the City's central business
district ("Central Business District") and has neither conducted the second reading of the
ordinance nor adopted the Development Code Amendment
D. In order to address the City's concerns and to avoid expensive and protracted
litigation, representatives of the City and the Developer and representatives of the Downtown
Business Association, which represents interested land owners and business owners in the
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RES 93-154
Central Business District, met and conferred regarding agreements by the Developer which
would avoid adverse impacts on the Central Business District and yet enable the Developer to
exercise the Entitlements in a manner which would not adversely impact the Developer or the
Project
E. As a result of the above-mentioned meetings, and notwithstanding the Developer's
rights under the Entitlements, the Developer has agreed to reduce the permitted height of
buildings and to slow the permitted phasing of construction of those buildings, as is more
particularly set forth in this Agreement. Because this Agreement actually lessens the impacts
of the Project including, without limitation, traffic impacts, air quality impacts and aesthetic
impacts, the Parties hereby acknowledge and agree that there is no possibility of an
environmental impact which has not been previously considered in the Mitigated Negative
Declaration and hereby acknowledge and agree that entry into and performance of this
Agreement is exempt from review under CEQA.
F. This Agreement has been discussed by the City's Mayor and the Council in closed
session pursuant to Government Code Section 54956. 9(b)(1) as there is significant exposure to
litigation regarding the Entitlements. The Parties agree that entering into this Agreement will
resolve potential litigation.
In consideration of the foregoing and the mutual covenants and conditions in this
Agreement, the Parties agree as follows:
OPERATIVE PROVISIONS
1. Develooer's Agreements. Subject to satisfaction of the conditions in paragraph
2, the Developer hereby agrees to refrain from constructing any building in the Project which
is taller than 10 stories from finished grade, without first obtaining a Conditional Use Permit
under Section 1.06.030(1) of the City's Development Code. Subject also to satisfaction of the
conditions in paragraph 2, the Developer hereby agrees that before July 6, 1997, it will refrain
from beginning construction of any building in the Project which is taller than 6 stories from
finished grade; provided, however that the Developer may during such period construct a single
building taller than 6 stories from finished grade but not in excess of 8 stories from finished
grade. The Parties acknowledge and agree that nothing in the immediately preceding sentence
will prevent the Developer from planning, designing and/or obtaining permits for 1 or more
buildings in the Project which are taller than 8 stories from finished grade, before July 6, 1997,
or from constructing horizonal site improvements for any such building, before July 6, 1997.
2. Citv Aoorovals. The City, through its staff and Council, hereby agrees to give
all notices, conduct all hearings and to otherwise use its best efforts consistent with the
requirements of the law, to (a) duly approve and enter into this Agreement, (b) conduct the
second reading and adopt the ordinance enacting the Development Code Amendment and (c) file
a Notice of Exemption under the applicable provisions of CEQA. The Parties acknowledge and
agree that the Developer will not be deemed to have undertaken any obligations under this
Agreement or to have waived any rights under the Entitlements unless and until the City
performs the provisions of this paragraph and unless and until the City's approvals under this
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RES 93-154
paragraph and the City's approval of the Entitlements themselves, become final and non-
appealable.
3. Interoretation and Construction. The Parties hereby agree that this Agreement is
to be construed narrowly to modify the Developer's rights under the Entitlements only in the
respects specifically provided in this Agreement and in no other respects. In addition, the
Parties hereby agree that if any provision in this Agreement requires interpretation or
construction, then the person interpreting or construing this Agreement will not apply a
presumption that the terms of this Agreement are to be more strictly construed against one Party
by reason of the rule of construction that a document is to be construed more strictly against the
party who, by itself or through its agents, prepared the document, it being agreed that both
Parties have participated in the preparation of this Agreement.
4. No Admission of Liability. The Parties hereby agree that this Agreement is not
to be construed as an admission by either Party of any unlawful or improper acts whatsoever and
each Party hereby disclaims any liability, either directly or indirectly, on its part or on the parts
of its employees or agents.
5. V oluntarv Acts. The Parties hereby acknowledge and agree that they are entering
into this Agreement based on their intelligent and knowing evaluation of the alternatives to
allowing their disputes to be resolved through litigation and that they are doing so because they
have each concluded that it is in their individual best interests to do so. In addition, the Parties
hereby represent to each other that, in approving and entering into this Agreement, they have
thoroughly discussed all aspects of this Agreement with their attorneys and have carefully read
and fully understand all of the provisions of this Agreement and they are voluntarily entering
into this Agreement
6. Inurement. Subject to satisfaction of the conditions in paragraph 2, this
Agreement will inure to the benefit of and will bind the Parties and their respective
representatives, successors and assigns. Consistent with the foregoing, the Parties hereby agree
that they and their respective representatives, successors and assigns are the sole beneficiaries
of this Agreement and are the only persons who will have rights to enforce this Agreement
7. Severability. The Parties hereby agree that if any provision in this Agreement is
determined by a Court or Referee of competent jurisdiction to be invalid, void or unenforceable,
then the remainder of this Agreement will not be affected by that determination and will continue
in full force and effect In that event, the Parties hereby agree that they will cooperate with one
another in considering such amendments to this Agreement as may be necessary or appropriate
to attain the purposes of this Agreement without the invalid, void or unenforceable provision.
8. Attorneys' Fees. The Parties hereby agree that if legal action is brought by either
Party against the other for a breach of this Agreement, or to compel performance under this
Agreement, then the prevailing Party will be entitled to an award of reasonable attorneys' fees
and costs which may include, without limitation, the fees of the City Attorney of the City.
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RES 93-154
9. Incorooration of Recitals. The Parties hereby agree that the Recitals in this
Agreement are material and are incorporated by reference into and made a part of this
Agreement.
10. Cooperation. The Parties hereby agree to take such further steps and execute such
further documents as may from time to time be necessary to achieve the purposes of this
Agreement.
11. Applicable Law and Venue. The Parties hereby agree that this Agreement is
entered into in California and will in all respects be interpreted, enforced and governed by the
laws of California and that any legal action under this Agreement will be brought in San
Bernardino County Superior Court.
12. Counteroarts. The Parties hereby agree that this Agreement may be executed in
2 or more counterparts, each of which will be deemed an original, but all of which, taken
together, will constitute one and the same agreement.
13. Hold Harmless Agreement. The Developer will defend, indemnify and hold the
City and its elected officials, officers and employees free and harmless from any loss, cost or
liability which results from any legal challenge to the City's actions in approving or
implementing this Agreement. Included in the scope of the foregoing indemnification will be
all damages and claims for damages which are suffered or alleged to have been suffered by
reason of the matters which are the subject of the applicable indemnification and all of the
associated legal fees and court costs (but not internal costs). Without limiting the effect of the
foregoing, the Developer will have the right to defend against any claim regarding which it is
indemnifying the City, using legal counsel of its choice. The City will cooperate with the
Developer and will give the Developer its full support in connection with any claim regarding
which the Developer is indemnifying the City and the City will not settle any such claim without
the Developer's consent.
14. Remedies. In the event of a default by the City under this Agreement, the
Parties agree that any remedy at law that the Developer may have would be inadequate and that
the Developer will pursue only the available equitable remedies including, without limitation,
the remedies of temporary and permanent injunction and specific performance and excluding
specifically any compensation in damages. In any such action, the Developer will not be
required to prove the inadequacy of remedies at law, as a condition of pursuing its equitable
remedies.
SIGNATURES FOLLOW
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RES 93-154,
DEVELOPER
Rancon Realty Fund IV,
a California limited partnership
By:
CITY
City of San Bernardino,
a municipal corporation
~!f~
176m Minor, Mayor
Approved as to form and legal content
j..
evv
es F. Penman, City Attorney
Rancon Realty Fund V,
a California limited partnership
By:
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Rancon Financial Corporation,
a California corporation,
Its G eral Partn~
By: iYJ ~b'
Robert H. S. Kirkpatrick, P
r
w
Signed and certified that a copy ofthis
document has been delivered to the
Mayor of the City
BY:~~
Rache Clark, City Clerk
WP\O :\RANCON\SET AGMT .001