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HomeMy WebLinkAbout2012-070 RESOLUTION NO. 2012-70 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING DEVELOPMENT AGREEMENT NO. 12-01 REGARDING THE 404-ACRE UNIVERSITY HILLS DEVELOPMENT TO IMPLEMENT THE UNIVERSITY HILLS SPECIFIC PLAN, GENERALLY LOCATED NORTHWEST OF THE CALIFORNIA STATE UNIVERSITY AT SAN BERNARDINO CAMPUS BETWEEN THE NORTHERN TERMINI OF CAMPUS PARKWAY AND LITTLE MOUNTAIN ROAD; AND APPROVING THE NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91- 03. 4 5 6 7 8 9 10 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. RECITALS 11 12 13 WHEREAS, the Mayor and Common Council of the City of San Bernardino adopted the General Plan for the City by Resolution No. 2005-362 on November 1,2005; and WHEREAS, the Mayor and Common Council on November 17,2008, adopted Resolution No. 2008-422, which certified the Final Subsequent Environmental Impact Report (SCH #2007071155), adopted the Facts, Findings and Statement of Overriding Considerations and the Mitigation Monitoring Reporting Plan, adopted General Plan Amendment No. 08-03 and the University Hills Specific Plan No. 07-01, and approved Tentative Parcel Map No. 18969 and Tentative Tract Map Nos. 18140 and 18696; and 14 15 16 17 18 19 20 21 WHEREAS, the Planning Commission conducted a noticed public hearing on March 28, 2012, in order to receive public testimony and written and oral comments on Development Agreement No. 12- 01, and fully reviewed and considered the Planning Division Staff Report and the recommendation of the Environmental Review Committee; and 22 23 24 25 WHEREAS, the Mayor and Common Council held a noticed public hearing on April 19, 2012, and fully reviewed and considered proposed Development Agreement No. 12-01. 26 27 III III 28 2012-70 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 SECTION 2. ENVIRONMENTAL IMPACT REPORT NOW, THEREFORE, BE IT RESOLVED, FOUND AND DETERMINED THAT THE MAYOR AND COMMON COUNCIL HEREBY CERTIFIES: A. The facts and information contained in the Recitals section are true and correct. B. The Final Subsequent Environmental Impact Report (SCH #2007071155) for the University Hills Specific Plan, which the Mayor and Common Council previously certified, also analyzed the environmental effects of the proposed Development Agreement. SECTION 3. DEVELOPMENT AGREEMENT NO. 12-01 BE IT FURTHER RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO THAT: Development Agreement No. 12-01, attached and incorporated herein as Attachment 1, is hereby approved based upon the Findings of Fact contained in the Staff Report to the Planning Commission dated March 28, 2012. The City Manager is hereby authorized and directed to execute Development Agreement No. 12-01 on behalf of the City of San Bernardino. SECTION 4. NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 The Notice of Expiration of Development Agreement No. 91-03, attached and incorporated herein as Attachment 6, is hereby approved. The City Manager is hereby authorized and directed to execute the Notice of Expiration of Development Agreement No. 91-03. SECTION 5. The authorization to execute Development Agreement No. 12-01 and Notice of Expiration of Development Agreement No. 91-03 is rescinded if the documents are not executed within ninety (90) days of passage of this Resolution. SECTION 6. EFFECTIVE DATE This Resolution shall become effective thirty (30) days after the date of adoption by the Mayor and 2 2012-70 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO APPROVING DEVELOPMENT AGREEMENT NO. 12-01 REGARDING THE 404-ACRE UNIVERSITY HILLS DEVELOPMENT TO IMPLEMENT THE 3 UNIVERSITY HILLS SPECIFIC PLAN, GENERALLY LOCATED NORTHWEST OF THE 4 CALIFORNIA STATE UNIVERSITY AT SAN BERNARDINO CAMPUS BETWEEN THE NORTHERN TERMINI OF CAMPUS PARKWAY AND LITTLE MOUNTAIN ROAD; AND 5 APPROVING THE NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91- 6 03. 7 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 8 Common Council of the City of San Bernardino at a ioint ad;ourned meeting thereof, held on the 19th day of April ,2012, by the following vote, to wit: 9 10 Council Members: 11 MARQUEZ 12 JENKINS 13 VALDIVIA 14 SHORETT 15 KELLEY 16 JOHNSON 17 MC CAMMACK 18 19 AYES NAYS ABSTAIN ABSENT x - x - x - ----1L x x - x - 20 "" The foregoing resolution is hereby approved this ~ day of April 21 ,2012. 22 23 24 Approved as to form: JAMES F. PENMAN, 25 City ttorney 26 27 28 3 2012-70 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of San Bernardino Attn: City Manager 300 North "D" Street, 6th Floor San Bernardino, California 92418 (SPACE ABOVE FOR RECORDER'S USE ONLY) DEVELOPMENT AGREEMENT SPECIFIC PLAN NO. 08-02 (UNIVERSITY HILLS) CITY OF SAN BERNARDINO April 19, 2012 2012-70 TABLE OF CONTENTS Page 1. Project Development Requirements 3 1.1 Standard of Development 3 1.2 Vested Provisions; Rules and Regulations 3 1.3 Updating of Applicable Regulations 5 1.4 Fees and Fee Credits 5 1.5 Building Permits 8 1.6 Processing of Applications; Final Action 8 1.7 Timing of Development 9 1.8 Public Services 9 1.9 [Intentionally deleted.] 10 1.10 Public Financing 10 2. Status of Project Approvals 11 2.1 Term of Approvals 11 2.2 Consistency of Land Use Designations 11 3. Term of Agreement 11 3.1 Initial Term Extensions 11 3.2 Project Completion 12 4. Binding Effect of Agreement 13 4.1 Covenant 13 4.2 No Property Interest 13 5. Assignment 13 5.1 Right of Assignment 13 5.2 Notice Requirement 13 5.3 Compliance with Project Approvals 14 5.4 Effect of Assignment; Effect of Default 14 6. Notices 14 6.1 Form of Notice 14 6.2 Change of Address 15 7. Amendment of Agreement 15 7.1 Formal Amendment 15 7.2 Clarification 15 8. Interpretation and Enforcement of Agreement 17 8.1 Complete Agreement 17 8.2 Severability 17 8.3 Conflict with State or Federal Laws 17 8.4 Applicable Law 17 8.5 Prevailing Party 17 8.6 Defense of Agreement 17 8.7 Authority of Signatories 18 8.8 Indemnification 18 8.9 Waiver and Delays 18 8.10 Third Party Actions 18 2012-70 8.11 Force Majeure 18 9. Effect on Property 18 9.1 Estoppel Certificate 18 9.2 Release of Lots from Agreement 18 10. Periodic Review of Compliance with Agreement 19 10.1 Annual Review 19 10.2 Contents of Report 19 10.3 Waiver 19 11. Violations 19 11.1 Violation by Property Owner 19 11.2 Violation by City 20 11.3 Legal Enforcement 21 11.4 Mortgagee Protection 21 12. Relationship of Parties 22 13. Exhibits 22 14. Adoption of Agreement 22 15. Recording of Agreement 22 Exhibits Exhibit"A"—Legal Description of Property Exhibit`B"—Public Facilities Financing Plan Exhibit "C"—Table of Processing Fees Exhibit"D"—Table of Impact Fees Exhibit"E"—Mitigation Monitoring and Reporting Program Exhibit"F"—5-Year Performance Requirement Exhibit"G"—Facilities Maintenance Plan ii 2012-70 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this 19th day of April, 2012, ("Effective Date") by and between (i) the CITY OF SAN BERNARDINO, a municipal corporation organized and existing under the laws of the State of California (the "City"), and (ii) FONTANA CORNERS 111, L.P., a California limited partnership (the "Property Owner"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code. The City and the Property Owner may be referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. The Property Owner is the Owner of a large property, consisting of approximately four hundred four (404) acres, more particularly described in Exhibit "A" attached hereto (the "Property"). The Property is located in the northerly portion of the City, in close proximity to the campus of California State University, San Bernardino ("CSU"). B. The Property previously was the subject of Resolution No. 93-45, adopted by the City on February 22, 1993, approving General Plan Amendment No. 91-07 and Specific Plan 90-03 and related conditions of approval, and authorizing execution of Development Agreement No. 91-03 with the Property Owner (collectively, the "Prior Approvals"). C. Pursuant to the Prior Approvals and the plan of development contained therein, commonly known as Paradise Hills, the Property Owner prepared and filed a proposed map for subdivision of the Property. Subsequently Property Owner withdrew that proposal. D. The Property Owner now proposes to develop the Property as a residential community to be known as University Hills (the "Project"). E. On November 17, 2008, the Mayor and Common Council of the City adopted Resolution No. 2008-422, which certified the Final Subsequent Environmental Impact Report (the "SEIR"), adopted the Facts, Findings and Statement of Overriding Considerations and the Mitigation Monitoring and Reporting Plan (the "MMRP"), adopted General Plan Amendment No. 08-03 (the "GPA") and the University Hills Specific Plan No. 07-01 (the "Specific Plan") and approved Tentative Parcel Map No. 18969, Tentative Tract Map No. 18696 and Tentative Tract Map No. 18140 (the "Map" or the "Maps"). F. The Specific Plan, the GPA, the SEIR (Recital J), the MMRP (Recital J) and any other discretionary land use approvals relating to the Project (and the Prior Approvals, to the extent not expired and not inconsistent) are incorporated herein by 1 2012-70 G, C_ r J Ly �j` -c- tic 1 this reference, and collectively comprise the "Project Approvals." Any and all Maps and other future discretionary land use approvals relating to the Project shall become part of the Project Approvals upon receiving approval from the City. The Property Owner desires to develop the Property in accordance with the Project Approvals and this Agreement. The Project consists of development of the Property as contemplated by the Project Approvals and this Agreement, subject to any refinements agreed upon by the Parties. G. Pursuant to the processing of the Project, the Property Owner proposes to enter into this Agreement. Entering into this Agreement is acknowledged to be to the mutual benefit of the Parties. Further, Property Owner and CSU have entered into two (2) agreements (jointly, the "CSU Agreements") titled: (i) Agreement Concerning Development of University Hills, and (ii) Agreement to Donate Land (both attached and incorporated herein as Attachment 3). The Agreement Concerning Development of University Hills provides for permanent public access to the Property, and also provides for joint cooperation on the development of certain street intersections and adjoining landscaped areas. The Agreement to Donate Land provides that, upon the occurrence of specified events, Property Owner will (1) convey to CSU approximately 220 acres of open space for educational and research purposes and will include public trails and (2) convey to CSU a planning area within the Property for the construction by CSU of up to 60 dwelling units for use by faculty and staff. The City acknowledges that these agreements (and the land conveyances to CSU) will be of significant benefit to the City and the public, and provide the consideration for the City to enter into this Agreement. H. The Property Owner has a legal interest in the real property situated in the City which is the subject of this Agreement, and therefore satisfies the statutory requirements to enter into this Agreement. In conjunction with the Prior Approvals, City Council Resolution No. 93-45 certified a Final Environmental Impact Report (the "EIR"), adopted findings and a statement of overriding considerations, and adopted Mitigation Monitoring Program as contemplated by the EIR. The Mayor and Council certified that the EIR was legally adequate, and that it satisfied the requirements of the California Environmental Quality Act ("CEQA;" California Public Resources Code Section 21000 et seq.), the CEQA Guidelines (California Code of Regulations Section 15000 et seq.) and applicable ordinances and regulations of the City. J. In connection with this Agreement, the Mayor and Council reviewed the previously approved EIR and related documents, prepared a Final Subsequent Environmental Impact Report (the "SEIR"),- and at a duly called and held public hearing on November 17, 2008, certified that the SEIR is legally adequate. The Mayor and Council's certification of the SEIR included its adoption of the Mitigation Monitoring and Reporting Program ("MMRP") for the Project. The MMRP is attached hereto as Exhibit "E". 2 2012-70 K. California Government Code ("Government Code") Sections 65864 et seq. (collectively, the "Development Agreement Law") authorizes the City to enter into binding development agreements with persons having a legal or equitable interest in the 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 development. The City, being a charter city pursuant to the laws of the State of California, has adopted by ordinance San Bernardino Municipal Code (Development Code) Chapter 19.40, by which the City has provided its separate development criteria for development agreements. This Agreement is adopted pursuant to the Development Agreement Law and the provisions of the City's Municipal Code Chapter 19.40. L. The Planning Commission, on March 28, 2012, conducted hearings and adopted findings relating to this Agreement, as required by Municipal Code Chapter 19.40, and recommended that the Mayor and Council approve this Agreement. The Mayor and Council, on April 19, 2012 by Resolution No. , made all findings and determinations relating to this Agreement which are required by the Development Agreement Law and by Municipal Code Chapter 19.40, and approved this Agreement by its adoption of Resolution No. M. The Mayor and Council finds that execution of this Agreement and the performance of and compliance with the terms and conditions set forth herein by the Parties: (i) is in the best interests of the City; (ii) will promote the public convenience, general welfare and good land use practices in the City; (iii) will promote preservation and enhancement of land values in the City; (iv) will encourage the development of the Project by providing a reasonable level of certainty to the Property Owner; and (v) will provide for orderly growth and development in a manner consistent with the General Plan and other plans and regulations of the City. NOW, THEREFORE, in consideration of the above Recitals, all of which are expressly incorporated into this Agreement, and the mutual promises and obligations of the Parties set forth herein, the Parties agree as follows: 1. Project Development Requirements. 1.1 Standard of Development. The Project shall be developed in accordance with the Project Approvals and this Agreement.During the Term (see Section 3.1) of this Agreement, the permitted uses within the Project, the density and intensity of use, maximum height and size of buildings, other zoning standards, the requirements for reservation or dedication of land for public purposes, the mitigation requirements and all other terms and conditions of development of the Project shall be those set forth in the Project Approvals. 1.2 Vested Provisions; Rules and Regulations. Property Owner shall have the vested right, to the fullest extent allowed under the Development Agreement Law (Gov. Code Sections 65864 et seq.) and Municipal Code Chapter 19.40, and except as otherwise 3 2012-70 expressly provided in this Agreement, to develop the Property in accordance with the provisions of the Specific Plan identified in Recital E, and the terms and provisions in the other Project Approvals, all as in effect as of the Effective Date and the other provisions of this Agreement (collectively the "Vested Provisions"). Municipal Code Chapter 19.40 provides, at subsection 2 of Section 19.40.010, that: "Should any apparent discrepancies between the meaning of these documents arise [Chapter 19.40, Section 65864 et seq. of the Government Code, and the Development Agreement], then the documents shall control in construing the development agreement in the following order of priority: A. The plain terms of the development agreement itself, B. The provisions of this Chapter (Municipal Code Chapter 19.40); and C. The provisions of Article 2.5 of the California Government Code, cited above. Pursuant to Government Code Section 65866 and Municipal Code Chapter 19.40, and except as otherwise provided in this Agreement, the regulations, rules and official policies of the City governing (i) permitted uses within the Project, (ii) density and intensity of use, (iii) design, improvement and construction standards and specifications, (iv) preparation, design, conditions and approval of tentative and final subdivision maps and parcel maps, and (v) all other terms and conditions of development of the Project shall be those regulations, rules and official policies which are in effect on the Effective Date of the resolution approving this Agreement, as modified and/or supplemented by the Specific Plan (the "Applicable Regulations"). Other ordinances, regulations and official policies of the City which are adopted thereafter may be applicable to the Project, to the extent that they are not in conflict with the Applicable Regulations. In accordance with the provisions of Government Code Section 66452.6, all tentative maps, and all permits and other approvals, shall be extended, from time to time in increments of not less than 36 month periods, pursuant to application by Property Owner, consistent with the Term of this Agreement. In light of this Agreement, the ten (10) year limitation in Section 66452.6 shall not apply. The number of phased final maps that may be filed shall be determined by the City's Planning Commission, subject to appeal to the Mayor and Council, at the time of approval or conditional approval of a tentative map. Such tentative and final maps shall comply with State and Federal laws, but may be exempted from certain regulations and requirements which do not threaten the public health, safety and welfare. The Vested Provisions may be modified only by the City as it determines to address a compelling public necessity regarding health and safety that cannot reasonably be addressed by other means or to comply with any later adopted federal or state law or regulation. [Note: All references in this Agreement to "map" or "maps," "tentative map" or "tentative maps," whether capitalized or lower case, shall, unless specifically designated to the contrary, mean and refer to tentative subdivision maps, final subdivision maps, and tentative parcel maps and final parcel maps, all as defined in, and regulated by, California Government Code, Sections 66410 et seq (collectively, the "Subdivision Map Act" or the "Map Act."] 4 2012-70 1.3 Updating of Applicable Regulations. The foregoing notwithstanding, the Parties recognize that planning and design considerations are constantly evolving and being modernized, and that development of the Project may from time to time require updating of City regulations and standards in order to achieve the most desirable outcomes for the City from the Project. Accordingly, the City agrees that it shall diligently and in good faith review and process to final action any proposals made by the Property Owner for such updating of City regulations and standards. 1.4 Fees and Fee Credits. The Parties recognize that fees which may be imposed by the City ("City Fees") upon'the Project fall within two categories: (i) fees for processing applications for City actions or approvals ("Processing Fees"); and (ii) fees or other monetary exactions which are established or contemplated under City ordinances or resolutions in effect as of the effective date of the resolution approving this Agreement and which are intended to defray the costs of public facilities or other amenities related to development projects (e.g., parks, streets and traffic controls) ("Impact Fees"). i. Processing Fees. The City may charge Processing Fees against the Project based upon the lesser of (A) the fees applicable at the time of the Property Owner's application for City action or approval, or (B) the fees applicable as of the Effective Date of approval of this Agreement by the City, in either case subject to the limitations in Paragraph 1.4.iii below. A list of the categories and amounts of Processing Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit "C". ii. Impact Fees. Attached as Exhibit D is the fee schedule ("University Hills Fee Schedule") with categories as previously approved by the City for the Paradise Hills Project. Also attached as Exhibit D is the City's current fee schedule ("Current Fee Schedule"). For the first 504 single family residential building permits issued by the City, City shall use and assess impact fees consistent with the Paradise Hills Fee Schedule. Commencing with the 505th single family residential building permit issued by the City, City shall use the Current Fee Schedule. The Impact Fees set forth in the Current Fee Schedule shall remain unchanged for the first ten (10) years after the Effective Date. Thereafter, the Impact Fees set forth in the Current Fee Schedule shall adjust upward by 2% per year. The Property Owner may defer payment of Impact Fees related to any structure until the time of City's release of utility meters or a period of 18 months from the time building permits are issued, whichever occurs first (i.e., pro rata payment as to each applicable structure as such structure has meters released). For any public facilities constructed by Property Owner which are included in any current Impact Fee list, such fees shall be either credited in lieu by City or if previously paid, then reimbursed to Property Owner. The amount of the credit will be limited to the amount of cost estimated for the improvements as identified in the associated Fee Study regardless of the actual cost. The amount of the credit shall not exceed the amount of the respective fee being credited. In the event that only a portion of a facility identified in the Fee Study is constructed, the credit amount will be a prorated amount that reflects the appropriate portion of the estimated cost of the facility as identified in the Fee Study as determined by the Director of 5 2012-70 Public Works. A list of the categories and amounts of Impact Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit "D". iii. Fee Categories. The City shall not impose upon the Project any categories of fees or other monetary exactions which are not included within (A) the Processing Fees as those categories exist as if the date of this Agreement, or (B) the Impact Fees as those categories existed as of the date of adoption of the Project Approvals, unless required by state or federal law or regulations. iv. Mitigation of Impacts. The Parties anticipate that, in addition to paying various fees to the City, the Property Owner will develop various public improvements as components of the Project, or in satisfaction of conditions of approval of the Project. To the extent that the Property Owner develops improvements which mitigate the impacts of the Project upon public facilities or infrastructure that are identified in a Fee Study associated with an Impact Fee, or the Property Owner secures such improvement in a manner reasonably acceptable to the City, the Property Owner shall be entitled to credits against any such Impact Fees in an amount equivalent to the estimated cost for such improvement as identified in the Fee Study as of the date that any such facility or other item of infrastructure is conveyed to and accepted by the City. As to any category of such public facilities or infrastructure in which the Property Owner develops or secures the development of all such public improvements required to serve the Project, the Property Owner shall be entirely exempt from that category of Impact Fees. In particular, in recognition of: (A) The significant permanent public open space, improved parkland and public trails provided for in the Specific Plan. (B) Provided, however, that in the event that, at the time of the first closing of an escrow for the sale and conveyance of each Lot improved with a residential structure within a final approved and recorded subdivision map ("Map") within the Project, one or more of the public facilities or infrastructures which have been made conditions in such Map, has not been completed and for which construction has not been bonded, then Property Owner shall pay the pro-rata Impact Fee due on each such closing for such public facility or infrastructure required as a condition for that Map. All such payments shall be held by City in a separate account until the earlier to occur of: (i) Property Owner's completion of such public facility or infrastructure or the bonding thereof, or (ii) City has issued 500 building permits. If the action in (i) above has occurred, then City shall refund to Property Owner all previously paid Impact Fees for such public facility or infrastructure, but if that activity has not occurred by the time set forth in (ii), then City shall be free to use those Impact Fees for the construction of such public facility or infrastructure, and Property Owner shall continue thereafter to pay the pro-rata Impact Fees for such public facility or infrastructure for the balance of first escrow closings for Lots in that Map. (C) In lieu of any park fee otherwise required by the City to be paid by Property Owner in connection with the approval of a tentative or final map 6 2012-70 pursuant to local ordinance or Government Code Section 66477, Property Owner may contribute land for any park site and/or construct any park improvements so required, and subject to the approval and acceptance of the Mayor and Council of the park site and/or park improvements, the Property Owner shall receive full credit for the value thereof. (D) The sewer lift station required to service a portion of the Project shall be acquired by the City (or a sub-agency thereof) through financing provided by either a community facilities district or an assessment district (see Section 1.10) and shall be maintained by the City (or a sub-agency thereof) through a landscape maintenance district or similar assessment district. v. Public Improvements; Reimbursements. It is understood that during Property Owner's development and construction of the Project, Property Owner likely will design, construct and/or install public improvements or facilities (collectively, "Facilities") which benefit other development projects or properties ("Benefited Properties") or the public in general in addition to the Project, including (i) those Facilities for which Property Owner would otherwise be charged an Impact Fee, and (ii) those Facilities which are included in the City's Capital Improvement Program ("CIP"). Included by way of example as Facilities are: (i) the extension of Campus Parkway from its current easterly terminus which is an improvement called for in the City's General Plan, for the benefit of CSU and the public, and (ii) any other improvements to be constructed at both the intersection of Northpark Boulevard and Campus Parkway and the intersection of Little Mountain Road and East Campus Circle, including all traffic signalization systems. Property Owner shall be entitled to reimbursement and/or waiver of Impact Fees, as provided below, for such Facilities, based on the following methods, and subject to the following limitations: (A) For Facilities approved and accepted by the City, and which are included in the City's adopted CIP budget, Property Owner will receive a reduction (or credit) in the Impact Fee(s) specifically applicable to that Facility, such reduction to be equal to the amount budgeted ("CIP Budget") by the City for such completed Facilities; and then (B) To the extent the reduction of Impact Fee(s) owed by Property Owner and the funds, if any, held in the CIP for that Facility and disbursed to Property Owner are insufficient to account for the full amount of the CIP Budget for such Facilities, then City shall enter into a reimbursement agreement ("City Reimbursement Agreement") for a term of not less than five (5) years and not greater than ten (10) years with the Property Owner so that future funds from such Reimbursement Agreement(s) and from other funding sources will flow into the CIP and then be disbursed to Property Owner. vi. Maintenance Responsibilities. The Project Approvals include requirements for the construction by Property Owner, from time to time, of certain infrastructure, both on-site to the Property and off-site. The schedule of such infrastructure improvements, including a plan identifying their locations and a matrix of terms for completion of the improvements will be conveyed for maintenance is attached as Exhibit 7 2012-70 "G." The City's maintenance for items which are outside its normal responsibility shall be funded partially or wholly through a financing method such as an LMD, CFD, IFD, CSA or similar method. Examples include the Sewer Lift Station, the maintenance of slopes or street lights. vii. Attached Multifamily Restriction. For purposes of this provision, the portion of the Property upon which the Project will be located (sometimes referred to as the "Project Site)," shall be divided into three (3) areas: "West Area," "Central Area," and "East Area." The West Area shall consist of Planning Area 1 through Planning Area 7, inclusive, and Planning Area 10. The Central Area shall consist of Planning Area 7 through Planning Area 9, inclusive, Planning Area 11 through Planning Area 15, inclusive, and Planning Area 21 and Planning Area 22. The East Area shall consist of Planning Area 16 through Planning Area 20, inclusive. Prior to that date when one single family detached subdivision within the West Area, Central Area or East Area has (A) completed (1) at least 26 residential units and (2) at least one park of a minimum 1/2 acre size, and (B) the City has completed its final inspection, the City shall not be required to issue any building permits for attached multifamily units in that same West Area, Central Area or East Area (other than for senior restricted products pursuant to Civil Code Section 51.3, affordable housing pursuant to applicable provisions at Sections 65580 et seq. and elsewhere in the California Government Code, or student/faculty housing for the Faculty/Staff Housing Parcel (PA 16), each of which is exempt from this restriction). 1.5 Building Permits. The Property Owner shall have the right to obtain building permits necessary for construction of the maximum number of dwelling units and other structures permitted by the Project Approvals, consistent with the other requirements and conditions in this Section 1. 1.6 Processing of Applications; Final Action. The Parties recognize that there are additional approvals required by the Property Owner from the City in connection with carrying out the Project pursuant to the Project Approvals, including but not limited to one or more Maps. During the term of this Agreement, the Property Owner shall have a legally vested right, subject to the proper exercise of discretion (limited by law and Property Owner's vested rights) by the Planning Commission, the Mayor and Common Council, and such other boards and commissions of the City of San Bernardino as required by the law thereof and applicable thereto, to obtain such additional approvals and to carry out the Project in accordance therewith. Any tentative subdivision map prepared for the Project shall, in accordance with Government Code Section 65867.5, comply with the provisions of Government Code Section 66473.7 and shall be extended, from time to time as required, pursuant the Government Code Section 66452.6. i. The City shall diligently and in good faith process in as expeditious a manner as reasonably 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 8 2012-70 Development Plan. In no event shall such processing exceed the time periods set forth in any applicable state laws and local ordinances or regulations. The foregoing requirements are subject to the Property Owner's applications for such additional approvals being in proper form for submittal and processing, including all required documents, information and fees, based on the City's generally applicable standards in effect at the time of submittal. ii. The Project shall be exempt from any moratorium or other restriction on the acceptance, processing or approval of development-related applications and/or of issuance of development-related permits, except as otherwise required by state or federal law. The timing of acceptance, processing and approval of such applications and the issuance of such permits shall not be affected by any limitation imposed after the date of approval of this Agreement upon the number of lots or permits which may be approved by the City, including limitations pertaining to particular time periods. Any conditions or requirements imposed by the City in connection with any such approvals or permits shall not exceed those typically imposed by the City in connection with similar approvals for other development projects in the City. iii. In connection with City's commitment to expedited processing of entitlements, maps and plans, the City shall, with the concurrence of Property Owner as to the cost, engage consultants or assign City staff for the purpose of coordinating, facilitating, expediting and/or reviewing subsequent applications by the Property Owner to the City for additional approvals and permits related to the Project. The Property Owner shall bear the costs of compensation of such specially assigned consultants and staff and any other City expenses associated with such persons, except as otherwise provided herein. The consultants and staff assigned to the Project shall at all times be persons having a level of training and experience commensurate with the size and complexity of the Project and the diversity of further approvals and permits required for the Project. 1.7 Timing of Development. The Parties acknowledge that development of the Project will be affected by numerous factors outside the control of the Property Owner, e.g., general economic conditions, interest rates and market demand. Accordingly, the Parties hereby acknowledge and agree that the Property Owner may develop the Project in such order and at such rate and times as are appropriate within the Property Owner's business judgment, subject to compliance by the Property Owner with the Project Approvals and such other conditions and requirements imposed by the City and not in conflict with this Agreement. In regard to the timing for construction of, or the bonding for the construction of, the facilities identified in sub parts (B) and (C) of Section 1.4 (iv), City shall not be obligated to issue the 500th building permit for construction of a residential structure within the Project until Property Owner has either commenced construction of those facilities or bonded for their construction. All Impact Fees paid by Property Owner for those facilities identified in (B) and (C) of Section 1.4 (iv), up to the 500th building permit, shall be held by the City in a separate account, and shall be refunded to Property Owner upon commencement by Property Owner of construction of those facilities, or upon the posting of bond(s) for construction thereof. 1.8 Public Services. 9 2012-70 i. Following satisfaction by the Property Owner of the requirements to obtain the necessary permits to carry out each phase of the Project, in accordance with the Project Approvals, the City shall provide to the Project all municipal services required to carry out the Project (including but not limited to services and/or facilities toward which the Property Owner has paid Impact Fees) which are provided by the City to other similar situated property owners, at a cost no higher basis than is charged to such other property owners, provided that the Property Owner complies with all requirements of the Project Approvals pertaining to construction and/or financing of improvements related to such services, and further provided that there are no physical impediments which make it impossible for the City to provide any particular service to the Project as determined by the City in the exercise of its discretion. ii. The City recognizes the importance to the Project of extending public transit services to the Project site. The City shall use its best good faith efforts to secure such service. 1.9 [Intentionally deleted.] 1.10 Public Financing. i. The City shall cooperate with the Property Owner in making available means of public financing for acquisition and maintenance of some or all of the public facilities and/or services required to be constructed or provided in connection with the Project and Impact Fees required to be paid in connection with the Project, pursuant to the Project Approvals. Upon application by the Owner, the City shall initiate proceedings for the establishment of one or more public facilities districts, community facilities districts, landscape maintenance districts or other similar financing mechanisms, or, alternatively, shall initiate proceedings regarding participation in one or more such financing mechanisms established by another public agency. The City's obligations in this regard shall be subject to and consistent with the City's ordinances and policies, regarding use of public financing, as well as any applicable provisions of state law, and shall be consistent with the Public Facilities Financing Plan attached hereto as Exhibit `B". ii. In establishing or participating in any special financing district other than a community facilities district, the City shall, to the greatest extent feasible, include in such district all property which will receive any identifiable benefit from the facilities and/or services to be provided or financed thereby. To the extent that it is infeasible to include any such benefited property in a district, the City shall take all reasonable steps to ensure that the Owner or developer of such property is required to enter into a reimbursement agreement with the Property Owner, whereby the Property Owner will recover from such other owner or developer a pro rata share of the cost of the facilities and/or services financed by the district. iii. The Property Owner acknowledges that provision of public financing, as well as other forms of financial assistance which the City may provide to the Project, may cause the Project or portions thereof to become subject to wage payment and contract bidding requirements which are not otherwise applicable to private development projects, and that the City makes no representations as to the likelihood of such requirements becoming applicable 10 2012-70 to the Project. Property Owner agrees to indemnify, defend and hold City harmless from any claim made regarding the failure to pay prevailing wages (as required by Section 1771 of the California Labor Code) for any public work (as defined in Section 1720 of the Labor Code) constructed by it on the Project. 2. Status of Project Approvals. 2.1 Term of Approvals. The Project Approvals (including tentative subdivision maps) shall remain valid and in effect for the entire Term of this Agreement, and the City shall take no action to rescind, revise or otherwise modify the Project Approvals, except at the request of or with the consent of the Property Owner, or as otherwise required by law. 2.2 Consistency of Land Use Designations. The Parties recognize the importance of maintaining the planning and design integrity of the Project and of ensuring that there is compatibility between those features of the Project and the surrounding community to the greatest extent feasible. Accordingly, the City shall not modify any land use designation outside the Project boundaries in such a way as to preclude or interfere with all or any part of the Project without proper notice of such proposed modification to the Property Owner. 3. Term of Agreement. 3.1 Initial Term; Extensions. The term ("Term") of this Agreement shall commence on the Effective Date and shall, subject to the provision below in 3.1.1, extend for an initial period of twenty (20) years thereafter("Expiration Date"). 3.1.1 Completion of Certain Plans and Improvements. Pursuant to the "5 Year Performance Requirement" plan, more particularly described in Exhibit "F," within the first five (5) years after the Effective Date, off-site rights-of-way must have been acquired; the "deemed complete" construction plans for the backbone infrastructure, including Campus Parkway and Little Mountain, with adjacent improvements shall be submitted; and the "deemed complete" plans for the first phase of single family detached structures with an associated park, shall have been submitted to the City. 3.1.2 First Extension. Subject to the proviso that the last annual review performed by the City prior to the Expiration Date, pursuant to Section 10 below, has determined that the Property Owner is in good-faith compliance with the terms of this Agreement, the Expiration Date may be extended for an additional period of five (5) years at the sole discretion of the Mayor and Common Council ("First Extension"). 3.1.3 Second Extension. Subject to the proviso that the last annual review performed by the City prior to the expiration of the First Extension, pursuant to this Section 3.1, determines that the Property Owner is in good-faith compliance with the terms of this Agreement, then the Expiration Date may be extended for an additional period of five (5) years at the sole discretion of the Mayor and Common Council ("Second Extension"). 11 2012-70 3.1.4 Property Owner Response; Special Circumstances. In the event City has concluded, either in the last annual review for the First Extension or for the Second Extension, that Property Owner is not in good-faith compliance with the terms of this Agreement, City shall give Property Owner adequate written notice thereof(not less than 30 days notice) and Property Owner shall be entitled to adequate opportunity to advise the City of special circumstances which should be considered in any proposal to terminate this Agreement. Such special circumstances might include, by way of example, the existence of public or private funding which relies on completion of the Project, commitments made to other public agencies or to the DRE, commitments made to CSU, and commitments made to purchasers of dwellings within the Project. 3.2 Project Completion. If not already terminated by reason of any other provision hereof, this Agreement shall automatically terminate upon the occurrence of all of the following: (i) total build-out of the Project pursuant to the Project Approvals and any amendments thereto; (ii) the issuance of all occupancy permits for improvements on the Property; (iii) acceptance by the City of all dedications of public rights-of-way and public improvements; (iv) documented transfer and acceptance for the purposes intended of all parts of the Project to be transferred to third party entities per the Project Approvals; specific reference is hereby made to transfers to be made to California State University San Bernardino for purposes' of open space and for faculty housing and ownership of the club house and pool to the master homeowner's association; (v) Completion and recording as a deed restriction and a covenant running with the land of conditions, covenants, and restrictions (CC&R's) applicable to all single-family and multi-family residences in the Project; such CC&R's shall be submitted to the City for approval prior to recordation and shall include a provision that the City may, but shall not have the obligation to, enforce any provision contained therein and shall be entitled to recovery of its costs; the CC&R's shall expressly state that each lender, upon default of the property owner shall, upon taking possession of the property, or when notified by the City or any holder of a right under the CC&R's that the property has been abandoned by the property owner, whichever notice occurs earlier, shall be bound by all covenants thereof with respect to the maintenance and the payment of any fees or association dues applicable to the property; and (vi) establishment of one or more home owner's association ("Association(s)") or other entities for the collection of costs of maintenance of the non-public recreational facilities and lands of the Project. There shall be a master association which extends to all residential properties, single-family and multi-family in the Project. There may be established such lesser associations as deemed appropriate by the Property Owner. The by-laws of the association(s) shall be submitted for approval by the City before recordation or filing with the appropriate authorities of the State. The by-laws and rules of such association shall be subject to the conditions respecting the City as set forth above for CC&R's. Where all such conditions have been satisfied with respect to any phase of the Project, consisting of one or more Planning Areas designated in the Specific Plan, then this Agreement shall continue to apply to that phase until occurrence of the above-described conditions for the entire Project, except upon written agreement of the Property Owner and the City. As used herein, "total build-out" shall mean the completion of all construction in the Project, of all buildings, structures, infrastructure, improvements, landscaping and associated amenities contemplated or permitted by the Specific Plan, all other infrastructure required by the 12 2012-70 Project, and performance by the Property Owner and the City of all of their respective obligations hereunder. 4. Binding Effect of Agreement. 4.1 Covenant. This Agreement shall bind, and inure to the benefit of, the respective Parties and their successors in interest, including their heirs, representatives, assigns, partners and investors, and all other persons and entities acquiring any rights or interests in the Property or any portion thereof, whether by operation of law or in any other manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to Sections 1460 et seq. of the California Civil Code. 4.2 No Property Interest. Nothing herein shall be construed as a dedication or transfer of any right or interest in, or as creating a lien with respect to, title to the Property. 5. Assignment. 5.1 Right of Assignment. The Property Owner may assign its rights and obligations hereunder to any other person or entity ("Assignee"), at any time during the term of this Agreement, provided that: (i) (a) such assignment shall occur in connection with sale, hypothecation or other transfer of a legal or equitable interest in the Property or a portion thereof, including any foreclosure of a mortgage or deed of trust or a deed in lieu of foreclosure, or in connection with formation of a new entity which is the assignee and in which the Property Owner is a partner, member or other form of co-owner, or (b) such assignment results from the formation, by Property Owner, of a new legal entity, in which Property Owner has an interest, which will own all or a portion of the Property; and (ii) the assignee demonstrates the following, to the reasonable satisfaction of the City Manager: (a) the ability to perform or secure any public improvement obligations required by the City in connection with the Project phase or other interest being transferred, as identified in the conditions of approval of the applicable subdivision map or elsewhere in the Project Approvals; (b) the financial capabilities to meet the obligations of this Agreement as they relate to that portion of the Project assigned to Assignee; and (c) its expertise in managing projects similar in size to the Project phase or other interest being assigned. The City shall give the Property Owner written notice of its satisfaction or dissatisfaction with the proposed Assignee within thirty (30) calendar days of receipt by the City of the information the City requires pursuant to this Section. The City's failure to timely communicate to Property Owner its approval or disapproval shall result in City being deemed to have approved. The City shall, to the extent permitted by law, treat all such information as confidential and proprietary, to be made available solely to City officials and staff required to review it in order to carry out the purposes of this paragraph. 5.2 Notice Requirement. The Property Owner shall give the City notice of any such assignment, and the Assignee shall provide the City with notice acknowledging 13 2012-70 its acceptance of its obligations hereunder as a successor in interest to the Property Owner. Upon such assignment, the acceptance thereof by the Assignee and provision of the required notices to the City by both the Property Owner and the Assignee, the Property Owner shall be relieved of its rights and obligations hereunder to the extent that such rights and obligations have been specifically transferred to and accepted by the Assignee. Only upon compliance with all of conditions set forth in Sections 5.1, 5.2 and 5.4 shall there be an assignment hereunder(the "Assignment"). 5.3 Compliance with Project Approvals. Each Assignee acquiring all or any portion of the Property, and thus becoming an Assignee of the rights and obligations in this Agreement to the extent of such property acquisition, shall be entitled to each and all of the rights, and be subject to each and all of the conditions and obligations, set forth in, and established by, the Project Approvals. Subsequent to an Assignment under this Section 5.2, all references in this Agreement to "Property Owner" shall mean and refer, instead, to the Assignee as such references pertain to a portion of the Project acquired by the Assignee. 5.4 Effect of Assignment; Effect of Default. Upon Assignment and approval of that Assignment as provided in Section 5.1, such Assignee shall be entitled to all of the rights and be subject to all of the obligations as set forth in this Agreement, as such rights and obligations apply specifically, either wholly or pro-rata, to that portion of the Project to which Assignee has acquired an interest as the result of such Assignment. Such rights and obligations shall include, by way of example only, the obligations concerning Impact Fees and the rights concerning waivers and refunds, each and all as they apply to that portion of the Project so assigned. Any default by the Property Owner in the terms or conditions of this Agreement or in the Project Approvals, existing at the time of assignment of any of its rights and obligations hereunder, shall remain the obligation of the Property Owner, unless the Assignee expressly accepts such obligation and the City expressly approves the assignment of such obligation. Any default by the Assignee in the terms or conditions of this Agreement or in the Project Approvals, occurring after the time of assignment of any rights and obligations of the Property Owner to the Assignee, shall be solely the responsibility of that Assignee, and shall not be deemed to be a default by either the Property Owner or any other Assignee and shall not affect the rights occurring to any other portion of the Property pursuant to this Agreement or the Project Approvals. 6. Notices. 6.1 Form of Notice. All notices between the City and either the Property Owner or an approved Assignee given pursuant to the provisions of this Agreement, shall be in writing and shall be given by personal delivery, facsimile or mail. City shall have no notice obligation to any party otherwise bound to this Agreement pursuant to Section 4.1 above except as specifically set forth herein or as otherwise agreed in writing. Notice by personal delivery or facsimile shall be deemed effective upon the delivery of such notice to the Party for whom it is intended at the address set forth below (or, in the case of an Assignee, at the address specified by such Assignee in a written notice to the City). Notice by mail shall be deemed effective two (2) business days after depositing such notice, addressed as set forth below, properly sealed, postage prepaid, registered or certified, return receipt 14 2012-70 requested, with the United Stated Postal Service, regardless of when the notice is actually received. The addresses to be used for purposes of notice shall be: To City: City of San Bernardino Attn: City Manager 300 N. "D" Street, 6th Floor San Bernardino, CA 92418 Facsimile: (909) 384-5138 With a copy to: City Attorney City of San Bernardino 300 "D" Street, 6th Floor San Bernardino, CA 92418 Facsimile: (909) 384-5238 To Property Owner: Inland Communities Corp. Attn: Jim Ahmad, President 7536 Lolina Lane Los Angeles, CA 90046 Facsimile: (323) 874-8800 With a copy to: William C. Holzwarth, Esq. Dzida, Carey& Steinman 3 Park Plaza, Suite 750 Irvine, CA 92614 Facsimile: (949) 399-0361 6.2 Change of Address. Any Party may change the address to which notices are to be sent at any time by giving written notice of such change in the manner provided above. 7. Amendment of Agreement. 7.1 Formal Amendment. This Agreement, including the term hereof, may be amended from time to time by mutual consent of the Parties, in accordance with the provisions of Municipal Code 19.40 and Government Code Section 65868. 7.2 Clarification. The foregoing notwithstanding, the Parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. If and when the Parties find that changes or adjustments are necessary or appropriate, which changes do not necessitate a formal amendment of the Agreement as determined by City in the exercise of 15 2012-70 its discretion, they shall, unless otherwise required herein or by law, effectuate the changes or adjustments as follows: 7.2.1 Community Development Director Authority, subject to appeal permitted by the Municipal Code shall apply to the following requests for change or modification: (a) Approval of minor site plan revisions; (b) Changes in Project infrastructures; (c) Product types; (d) Annual review and approval of the Mitigation Monitoring and Reporting Program; (e) Minor revisions to Design Guidelines; (f) Density transfer between Planning Areas without exceeding to top number of units allowed by the approved Specific Plan. 7.2.2 Planning Commission Authority, subject to appeal permitted by Municipal Code shall apply to the following requests for change or modification: (a) Change in total number of proposed Units; (b) Approval of major site plan revisions; (c) Major revisions to Design Guidelines; (d) Minor revisions to Land Use Plan when uses could be considered accessory to approved uses; and (e) Increase/decrease in number of lots. 7.2.3 City Council Authority shall apply to the following requests for change or modification: (a) Alteration of the permitted uses of the Property; (b) Increase'in the intensity of use or the number of lots; and (c) Deletion of a requirement for the reservation or dedication of land for public purposes except for minor boundary adjustments approved by the Community Development Director. 16 2012-70 8. Interpretation and Enforcement of Agreement. 8.1 Complete Agreement. This Agreement represents the complete understanding between the Parties, and supersedes all prior agreements, discussions and negotiations relating to the subject matter hereof No amendment, modification or cancellation of this Agreement shall be valid unless in writing and executed by the Parties, other than pursuant to Section 11 below. 8.2 Severability. If any provision of this Agreement is determined to be invalid or unenforceable, the remainder of the Agreement shall not be affected thereby and shall remain in full force and effect, unless such invalidation renders any remaining provisions impossible or impractical to enforce. 8.3 Conflict with State or Federal Laws. In the event that any state or federal laws or regulations, enacted after the effective date of this Agreement, prevent or preclude compliance by either Party with any provisions hereof, such provisions shall be modified or suspended to the extent necessary to comply with such state or federal laws or regulations. 8.4 Applicable Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of California and any applicable laws of the United States of America. 8.5 Prevailing Party. In the event of any action or proceeding brought by either Party against the other to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover reasonable costs and expenses, including attorneys' fees, incurred in connection therewith, including the costs, salaries, and expenses of the City Attorney and his staff. 8.6 Defense of Agreement. In the event of any action or proceeding brought by a third party, whether a private or governmental person or entity, challenging the validity of this Agreement or any provisions hereof, the City shall actively defend against any such action or proceeding, including taking all reasonable measures to protect the enforceability of the Agreement. The Property Owner shall pay all actual, reasonable legal expenses associated with such defense. The Parties shall cooperate in defending against any such challenge. The City shall consult regularly with the Property Owner regarding such defense and shall notify the Property Owner of any significant developments relating to the action or proceeding. During the entire course of any such challenge, including any review up to a court of final jurisdiction, this Agreement shall remain in full force and effect. 17 2012-70 8.7 Authority of Signatories. The Parties represent and warrant that the persons signing this Agreement on their behalf have full authority to bind the respective Parties. 8.8 Indemnification. The Property Owner agrees to and shall defend, indemnify and hold harmless the City and its officers, employees, agents and contractors, against any and all claims, damages, awards, actions or causes of action and expenses (including, but not limited to, attorneys' fees and costs of litigation) to which the City and its officers, employees, agents and contractors may be subjected by reason of the City's approval of this Agreement, or any work done or omission made by the Property Owner and its agents, officers or employees, in connection with, arising out of or resulting from the approval or performance of this Agreement. 8.9 Waiver and Delays. Failure by either Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or failure by either Party to exercise its rights upon a default by the other Party, shall not constitute a waiver of any right to demand strict performance by such other Party in the future. 8.10 Third Party Actions. Nonperformance by either Party shall not be excused because of a failure of a third person, except as specifically provided herein. 8.11 Force Majeure. Neither Party shall be deemed to be in default for 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 or other labor difficulties, government agencies and their regulations, or other causes beyond the reasonable control of the Party claiming the force majeure. If any such event shall occur, the term of this Agreement and the time for performance by the Property Owner of any of its obligations hereunder shall be extended by the period of time that such events prevent it from proceeding with development of the Project. 9. Effect on Property. 9.1 Estoppel Certificate. Any Party may, at any time and from time to time, deliver written notice to another Party requesting certification in writing that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Agreement has not been amended,, or, if so amended, identifying the amendments; and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or, if in default, describing the nature and extent of any such default. A Party receiving a request hereunder shall execute and return such certificate within thirty (30) calendar days following the,receipt thereof The City Manager of the City shall have the authority to execute any such certificate requested by the Property Owner. The City acknowledges that a certificate hereunder may be relied upon by transferees and mortgagees. 9.2 Release of Lots from Agreement. Subject to City's final inspection of the Lot and structures, promptly upon the written request of the Property Owner, the City shall execute a document, in a recordable form, releasing any Lot for which a final 18 2012-70 Map has been recorded and which has been sold or leased to a retail purchaser, from the effects of this Agreement, and deliver such document to the Property Owner. 10. Periodic Review of Compliance with Agreement. 10.1 Annual Review. This Agreement shall be subject to annual review, pursuant to California Government Code Section 65865.1. Within thirty (30) calendar days following each anniversary of the date of recording of this Agreement, the Property Owner shall submit to the City Manager of the City written documentation demonstrating good-faith compliance with the terms of this Agreement ("Annual Report"), to the extent that the Property Owner has taken or is required to take any action pursuant to this Agreement. Failure by the Property Owner to submit the Annual Report in a timely manner shall not itself constitute a breach of this Agreement, unless the City has first given the Property Owner a minimum of thirty (30) calendar days notice thereof and the Property Owner fails to submit the Annual Report within thirty (30) calendar days after receipt of such notice. As of the Effective Date, City shall establish a reasonable fee for its annual review and the Annual Report. Such annual fee may be adjusted every 5th anniversary of the Effective Date to cover increased costs incurred by the City for such annual review. 10.2 Contents of Report. The Annual Report and any supporting documents shall describe (i) any permits or other approvals which have been issued or for which application has been made and (ii) any development or construction activity which has commenced or has been completed since the recording date or the date of the preceding annual review. The City shall review all the information contained in such report in determining the Property Owner's good faith compliance with this Agreement. 10.3 Waiver. The City does not waive any claim of defect in performance by the Property Owner if, at the time of an annual review, the City does not propose immediately to exercise its remedies hereunder. However, in the event that the City, following receipt of the Annual Report for any year, fails to review the information contained therein and/or to determine the Property Owner's good faith compliance with this Agreement within 90 calendar days following date of such receipt, the Property Owner shall be deemed to be in good faith compliance with regard to the period covered by that Annual Report. 11. Violations. 11.1 Violation by Property Owner. i. The Property Owner shall be deemed in violation of the terms of this Agreement if a finding and determination is made by the City Manager, upon the basis of substantial evidence, however received, that the Property Owner has not complied with one or more of the material terms or conditions of this Agreement. A default on the part of an Assignee after an Assignment pursuant to Section 5 above shall not constitute a violation of this Agreement by the Property Owner. 19 2012-70 ii. If the City Manager believes the Property Owner to be in violation of this Agreement, the City Manager or his or her designee shall give the Property Owner thirty (30) calendar days written notice specifying the nature of the alleged violation and, when appropriate, the manner in which the violation may be satisfactorily cured. Failure or delay in giving notice of a violation shall not constitute a waiver of such violation. iii. The Property Owner may appeal the allegation of violation by filing a notice of appeal with the City Clerk, within the thirty (30) calendar day cure period described in the preceding paragraph. The Property Owner's appeal shall be placed on the agenda of the next regularly scheduled meeting of the City Council, which shall be an open meeting but not a public hearing. If the City Council finds that a violation has occurred and is continuing, the Property Owner shall be given sixty calendar (60) days within which to cure such violation; provided that such time period may be extended by the City Manager for not to exceed 180 calendar days, upon a determination that the Property Owner is engaged in making good faith efforts to cure the violation. At the next City Council meeting following expiration of the period allowed by the City Council for curing the violation, or any extension thereof, the City Council shall set forth by motion or resolution its determination as to (i) the continuation of the violation and (ii) any action to be taken, which action may include amendment or termination of this Agreement. Any action to terminate shall be in the form of a resolution and shall be supported by written findings. iv. After proper notice and expiration of the cure period without appeal, cure, or commencement of substantial effort toward a cure by the Property Owner, the City may take unilateral action by adoption of a resolution with written findings, to terminate or amend this Agreement. 11.2 Violation by City. i. The City shall be deemed in violation of the terms of this Agreement upon failure of the City to carry out any of its obligations hereunder. ii. If the Property Owner believes the City to be in violation of this Agreement, the Property Owner promptly shall notify the City, through its City Planner, to that effect, setting forth the grounds upon which a violation is claimed, facts in support of such grounds, and the means through which such violation may be cured. The City shall have thirty (30) calendar days following the date of receipt of the notice within which to take action to deny the claim, cure the violation or undertake substantial action toward the cure. iii. If the action of the City is unsatisfactory to the Property Owner, the Property Owner may make an appeal to the City Council, provided that, within ten (10) days following the date of receipt of the notice of denial of the claim, or within ten (10) days following the date of expiration of the cure period described in the preceding paragraph, whichever occurs first, the Property Owner files with the City Clerk a notice of appeal to the City Council. The City Council thereafter shall consider this matter on the 20 2012-70 • agenda of its next regularly scheduled meeting, which shall be an open meeting but not a public hearing, at which the Property Owner may present information regarding the alleged violation. Based upon the information presented by the Property Owner, the City Council shall make a determination as to whether the City is in violation of this Agreement, as alleged by the Property Owner. 11.3 Legal Enforcement. Subject to the prior exhaustion of all administrative remedies set forth in Sections 11.1 and 11.2 above, each party hereby waives all rights save for the right of specific performance or other equitable remedy against the other hereunder and otherwise specifically set forth herein. This specifically constitutes an expression of the intent of the Property Owner, its heirs, successors and assigns, joint venturers and all others bound hereby, and the City to be a waiver of any alleged Constitutional violations that may be waived by the Parties and a waiver of any and all contractual damages of whatever source or type. Any such legal action shall be brought in the Superior Court of San Bernardino County, State of California, or in an appropriate federal court. 11.4 Mortgagee Protection. The Parties hereto agree that this Development Agreement shall not prevent or limit the Property Owner, in any manner, at Property Owner's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon by any mortgage, deed of trust or other security device. The City acknowledges that the lender(s) providing such financing may require certain Development Agreement interpretations and modifications and agrees, upon request, from time to time, to meet with the Property Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. The 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 Development Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust or any successor or assign thereof, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a person or entity who obtains title by deed-in- lieu of foreclosure ("Mortgagee") on the Property shall be entitled to the following rights and privileges. i. Mortgage Not Rendered Invalid. Neither entering into this Development Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. No Mortgagee shall have an obligation or duty under this Development Agreement to perform the Property Owner's obligations, or to guarantee such performance, prior to taking title to all or a portion of the Property; provided, however that a Mortgagee shall not be entitled to a building permit unless the Mortgagee,,satisfies all of the requirements under this Development Agreement, the Applicable Rules and any Future Approvals granted by the City. The above notwithstanding, the Mortgagee shall be on notice of and shall act in compliance with the requirement for a homeowner's association and CC&R's described herein. 21 2012-70 ii. Request for Notice to Mortgagee. The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, who has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive a copy of any Notice of Default delivered to the Property Owner. Failure of the City to provide notice to the Mortgagee as provided here shall not constitute a limitation on the City's ability to proceed against the Property Owner for a cure. iii. Mortgagee's Time to Cure. The City shall provide a copy of any Notice of Default to the Mortgagee within ten (10) calendar days of sending the Notice of Default to the Property Owner. The Mortgagee shall have the right, but not the obligation, to cure the default for a period of thirty (30) days after receipt of such Notice of Default. Notwithstanding the foregoing, if such default shall be a default which can only be remedied by such Mortgagee obtaining possession of the Property, or any portion thereof, and such Mortgagee actively seeks to obtain possession, such Mortgagee shall have until thirty (30) days after the date of obtaining such possession to cure or, if such default cannot reasonably be cured within such period, to commence to cure such default, and thereafter diligently prosecute such cure to completion. iv. Cure Rights. Any Mortgagee who takes title to all of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or a deed in lieu of foreclosure, shall succeed to the rights and obligations of the Property Owner under this Development Agreement as to the Property or portion thereof so acquired. Such Mortgagee shall not be liable for defaults or monetary obligations of the Property Owner arising prior to acquisition of title to the Property by such Mortgagee, except that, any such Mortgagee shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under this Development Agreement for the Property, or portion thereof acquired by such Mortgagee, have been paid to City and until all conditions, including installation of infrastructure and other improvements, have been complied with. 12. Relationship of Parties. In performing its obligations hereunder, the Property Owner is acting under this Agreement as an independent contractor and not as an agent or employee of the City. Further, nothing in this Agreement shall be construed as creating between the Property Owner and the City a partnership or joint venture for any purpose. 13. Exhibits. All exhibits referred to in, and attached to, this Agreement are incorporated herein by such reference. 14. Adoption of Agreement. Adoption of this Agreement by the City shall be by resolution. 15. Recording of Agreement. Within ten (10) days following the adoption by the City of the resolution approving this Agreement, or any subsequent amendment hereof, the City Clerk shall file a fully executed copy hereof with the County Recorder of San Bernardino County, State of California. Concurrently with the recordation of this 22 2012-70 Agreement, City and Property Owner shall cause the recordation of a document giving notice of the expiration of Development Agreement No. 91-03 and all application of the terms thereof to the Property. [BALANCE OF PAGE INTENTIONALLY LEFT BLANK.] 23 2012-70 IN WITNESS WHEREOF, the Parties have executed this Agreement, to be effective as of the date set forth in the first paragraph hereof "PROPERTY OWNER" "CITY" FONTANA CORNERS 111, L.P., CITY OF SAN BERNARDINO, a California limited partnership a municipal corporation By: ARADI, LTD., a Nevada corporatio its Gen al Partne By: ,!'r `& By: Ay14 Q,tf i TM,/1 (ANEe N1rtitVe Andrea Travis-Miller reneral Partners Acting City Manager S 4_n-77""_ APPROVED AS TO FORM. .-.■ )-X'''. James F. Penman, City Attorney ATTEST: r�I� r /4444" G- 'geann Hanna, City Clerk 2012-70 State of_ County of - On 4( 2012, before me , a Notary Public in and for said state, rally appeared ;n'ter /49114/1"ol'i , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the Stat that the foregoing paragraph is true and correct. (�c_7",),7--p z WITNESS my hand and official seal. My Commission Expires November 14, Si:. :a ..Atirir , AL/ diSe110— State of California County of San Bernardino On May 10 2012, before m o; d ,a Notary Public in and for said state, pe tonally appeared Andrea Travis–Miller , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 'w* SHIRLEY N-ROBINSON !�._ commis:fort•1972302 Notary ublic ailt *►% San 6ernarPAirto C ornfa County Comm.Ex ires Mar 17,2016 Signature - (Seal) 2012-70 ATTACHMENT 2 EXHIBIT"A" LEGAL DESCRIPTION OF PROPERTY WCH\30610.00011405311.312/23/201 1 2012-70 EXHIBIT"A" LEGAL DESCRIPTION OF PROPERTY PARCEL I(Assessor's Parcel No.265-041-12): THAT PORTION OF THE EAST 1t2 OF SECTION 5,LYING WITHIN THE LINE OF THE MUSCUPIABE RANCHO AND OF THE EAST 1/2 OF SECTION 8,BOTH OF TOWNSHIP 1 NORTH,RANGE 4 WEST,SAN BERNARDINO BASE AND MERIDIAN,IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S. GOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO, LYING WESTERLY OF THE WEST LINE OF THE LAND CONVEYED TO C.F.MARTIN BY DEED RECORDED FEBRUARY 14, 1922, IN BOOK 740, PAGE 199 OF DEEDS AND NORTHERLY OF THE NORTH LINE OF THE LAND DESCRIBED IN PARCEL 4 OF THE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT,RECORDED APRIL 23, 1940, IN BOOK 1415,PAGE 37,OFFICIAL RECORDS. PARCEL 2(Assessor's Parcel Nos.265-051-12 and 265-051-13): THAT PORTION OF THE WEST 1/2 OF SECTION 4, LYING WITHIN THE LINE OF MUSCUPIABE RANCHO AND THE WEST 1/2 OF SECTION 9, BOTH OF TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S, GOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO, DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE ACCORDING TO THE PERRIN SURVEY, SAID CORNER BEING NORTH 89° 03' WEST, 516.90 FEET • FROM MUSCUPIABE RANCHO,CORNER M-28; THENCE SOUTH 89°03'EAST,516.90 FEET TO SAID CORNER M-28; THENCE SOUTHERLY 173.17 FEET ON THE EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; THENCE SOUTHEASTERLY, 785.30 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO A POINT WHICH 1S DISTANT NORTH 62°41' WEST, 195.51 FEET FROM THE NORTHEAST CORNER OF THE LAND DESCRIBED AS PARCEL NO. 4 OF THE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT,.RECORDED APRIL 23,1940,IN BOOK 1415,PAGE 37,OFFICIAL RECORDS; THENCE ON THE BOUNDARY LINE OF SAID PARCEL 4,THE FOLLOWING COURSES AND DISTANCES; SOUTH 02°11'EAST,526.41 FEET; THENCE SOUTH 25°30'WEST,581.59 FEET; THENCE NORTH 38°31'WEST,196620 FEET; THENCE NORTH 01°24'30"EAST,674.55 FEET; Inlmnd.UHSB.DevAQ.v2 2----. 2012-70 THENCE NORTH 39° 05' WEST, 85.12 FEET TO AN ANGLE POINT THEREIN, SAID POINT ALSO BEING ON THE EASTERLY LINE OF THE LAND CONVEYED TO C. F. MARTIN,RECORDED FEBRUARY 14,1922,IN BOOK 740,PAGE 199 OF DEEDS; THENCE NORTHERLY ALONG LAST SAID EASTERLY LINE,NORTH 41°09'EAST, 50 FEET; THENCE NORTH 10°58'WEST,127.05 FEET; THENCE NORTH 41°08'EAST,241.56 FEET; THENCE NORTH 22°36'EAST,626.13 FEET TO THE POINT OF BEGINNING. EXCEPT THE LAND CONVEYED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT IN DEED RECORDED SEPTEMBER 25, 1956, IN BOOK 4046, PAGE 396, OFFICIAL RECORDS. PARCEL 3(Assessor's Parcel No.265-061-16): THAT PORTION OF SECTION 9, LYING WITHIN THE LINE OF THE MUSCUPIABE RANCHO,N TOWNSHIP 1 NORTH,RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,STATE OF CALIFORNIA,BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDED U.S. GOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO,DESCRIBED AS FOLLOWS: BEGINNING AT A CORNER M-28, ON LINE 27-28 RANCHO MUSCUPIABE ACCORDING TO THE PERRIN SURVEY; THENCE SOUTHERLY 1786.17 FEET ON THE EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; THENCE SOUTHEASTERLY,980.81 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ON LAST SAID NORTHEAST LINE, SOUTH 62° 41' EAST, TO THE NORTHEAST CORNER OF THE LAND CONVEYED TO THE SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED MAY 14, 1957,IN BOOK 4229,PAGE 497,OFFICIAL RECORDS; THENCE ON THE NORTHERLY LINE OF THE LAND IN THE DEED LAST MENTIONED,SOUTH 60°03'27"WEST,563.37 FEET; THENCE NORTH 74°05'48"WEST, 1143.34 FEET TO A POINT IN THE EASTERLY LINE OF THE LAND DESCRIBED AS PARCEL 4 IN DEED TO SAID FLOOD CONTROL DISTRICT,RECORDED APRIL 1,1940,IN BOOK 1415,PAGE 37, OFFICIAL RECORDS, SAID POINT BEING SOUTH 03° 50'EAST,816.73 FEET FROM THE INTERSECTION OF SAID NORTHEASTERLY RANCHO LINE; THENCE ON LAST SAID EASTERLY LINE,NORTH 03° 50'WEST 816.73 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 4(Assessor's Parcel No.265-051-09): Inhend.UHSB.DevAgr.v2 3 2012-70 THAT PORTION OF SECTIONS 4,5, 8 AND 9,TOWNSHIP 1 NORTH,RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO, 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° 03'WEST, 516.9 FEET FROM CORNER NO. 28; THENCE SOUTH 22°36'WEST,626.13 FEET TO CORNER NO.2; THENCE SOUTH 5P°08'WEST,241.56 FEET TO CORNER NO.3; THENCE SOUTH 10°58'EAST, 127.05 FEET TO CORNER NO. 4; THENCE SOUTH 41°09'WEST,283.26 FEET TO CORNER NO.5; THENCE SOUTH 16° 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 27-38 MUSCUPIABE RANCHO; THENCE SOUTH 89° 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° 53' EAST ALONG THE SOUTH LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST CORNER OF SAID MARTIN LAND; THENCE NORTH 16° 12' EAST ALONG THE EAST LINE OF SAID MARTIN LAND, 291.68 FEET; THENCE SOUTH 67°12'WEST,345.0 FEET; THENCE SOUTH 52°03'WEST, 174.27 FEET TO A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 0° 07 EAST ALONG SAID WEST LINE,40.0 FEET TO THE POINT OF BEGINNING. PARCEL 5(Assessor's Parcel No.265-021-13): Inbad.UHSB.DevAgr.v2 4 2012-70 • EXHIBIT`B" PUBLIC FACILITIES FINANCING PLAN WCH130610.0001 4105311.3 12/23/2011 -5- _ 2012-70 EXHIBIT"B" MELLO-ROOS COMMUNITY FACILITIES DISTRICT PUBLIC FACILITIES FINANCING PLAN This Public Facilities Financing Plan("Financing Plan")outlines the basic terms and conditions pursuant to which the City and the Property Owner will cooperate to establish one or more special districts or authorities,"as provided under California law(collectively,"Special District") for the acquisition and/or construction of public improvements and payment of fees applicable to the Project.The principal goals of the Financing Plan are to:(I)establish reasonable certainty as to how the Special District shall be implemented;and(Ii)provide for the issuance of Special District bonds in series order to minimize carrying costs. Cons derationof Community Facilities Districts.The City Council will consider the use of community facilities districts(hereinafter"CFD's")as well as other financing methods to assist certain types of residential,and/or non-residential development,where,in the City's opinion, the financing of public facilities satisfies a public need,while having the financial security to reasonably assure a.sound investment for potential bondholders and minimize any City exposure to liability for actions taken on behalf of public financing projects. CFD financing will be permitted for public Improvements that will benefit the expected long-term property owners,and whose useful life will be equal to or greater than the longer of(a)five(5) years or(b)the term of the bonds. Boundary.The Special District boundary shall encompass solely the Project. If requested by the Property Owner,the Special District may contain"multiple improvement areas"(?). Consistent with General Plan.The proposed development project must be consistent with the City's General Plan and have secured appropriate land use approvals from the City to allow for the implementation of the development of the area as contemplated. CM' h p •f Facilities.Facilities which, upon completion,are to be owned by public agencies shall be considered public facilities. Authorized Facilities.The Special District shall be authorized to finance the costs of construction of all on-site and off-site public improvements("Facilities"or"Facility"),and casts associated with formation of the District, required by the Project's condition of approval or this Agreement("Costs"). Costs of the Facilities to be constructed by the Property Owner that are eligible to be financed in the Special District are as follows: • The actual costs for the construction of a Facility,Including labor, materials and equipment costs; 1 6 2012-70 • The costs incurred in designing and preparing the plans and specifications for a Facility; • Fees paid for obtaining permits, licenses or other governmental approvals for a Facility; • Costs of construction management and supervision; • Professional costs associated with the Facility,such as engineering, inspection, construction staking, materials and testing and similar professional services;and • Costs directly related to the construction of a Facility, such as costs of payment, performance and/or maintenance bonds and insurance costs. Discrete components of the Facilities consisting of usable segments and various costs categories relating to such segments may be funded by the Special District.Examples of cost categories consisting of discrete components are as follows:- Streets • Planning,design,engineering and permitting; • Grading; • Paving; • Sidewalks;and • Final lift,asphalt cap and other final completion items and remaining soft costs. Wet Utilities(Sewer,Water Reclaimed Water,Storm Drain) • Planning,design,engineering and permitting; • Grading and trenching; • Installation of channels, pipes, basins, rip rap and other structures;and • Final completion items and remaining soft costs. Park and Trails • Planning,design,engineering and permitting; • Grading; • installation of irrigation, landscaping,parking facilities, play and recreation equipment, bathrooms and other structures;and • Final completion items and remaining soft costs. There shall be no payment from bond proceeds for costs of real property upon which improvements are constructed,except as follows. Payment for real property upon which the Facilities are constructed that is in public ownership is acceptable based on the actual cash payment to the public owner but in no case in an amount greater than the fair market value, 2 7 2012-70 ADDrkisal.An appraisal of the property subject to any lien required to secure any public financing shall be required.A minimum property value to lien/debt ratio of 4:1 (including any overlapping assessment of Community facilities districts)must be present pursuant to Premise 3 entitled"Bulk Land value"as set forth in Attachment A as determined by an M.A.I.appraisal. The appraisal shall be reviewed by the City and shall be prepared as set forth in Attachment A hereto. A•soroti•n Study.Unless waived by the City,an absorption study of the proposed development project shall be required for CFD financings.The absorption study shall be used as a basis for verification that sufficient revenues can be produced to fully and timely satisfy debt service requirements and costs of services and to determine If the financing of the public facilities and services is appropriate given the timing of the development.Additionally the projected absorption rates will be provided to the appraiser for use in the appraisal required in the Appraisal section hereof. Rate and Aoaortlonment of Soeclal Tax.With regard to CFD's,the proposed rate and method of apportionment of the special tax shall comply with the following criteria: a. The rate and method of apportionment shall not provide for an annually increasing maximum special tax for any classification. However, subject to City approval in its sole discretion, under appropriate circumstances,as determined by the City,an increase in the maximum special tax may be permitted, not to exceed two percent (2%)annually. b. The total projected annual special tax revenues must exceed the projected annual gross debt service on the bonds by at least ten percent(10%). In structuring the special tax,projected annual interest earnings on bond reserves funds shall not be included as revenue for the purpose of this calculation. c. In limited cases, as determined by the City In its sole discretion,a special tax for services may be permitted and the annual special tax may Increase to reflect projected increases in costs to provide the applicable services In an amount to be determined by the City,in its sole discretion. d. The projected annual special tax revenues shall Include amounts projected to be sufficient to pay reasonable annual administrative expenses and other direct costs to the CFD. e. All property not otherwise statutorily exempted or owned(or to be owned)by a public entity shall bear its appropriate share of the special tax liability. f. The special tax shall be apportioned on a reasonable basis to categories and,classes of property within the CFD subject to the special tax. g. A formula to prepay the special tax may be permitted. h. The projected ad valorem property tax and other direct and overlapping debt for the proposed development project charges, projected benefit assessments,levies for 3 8 2012-70 authorized but unissued debt and any other anticipated municipal charges(including estimated LLMD(Lighting&Landscaping Maintenance Districts))which may be included on property owners annual tax bill),including the proposed maximum special tax,may not exceed one and one-half percent(1.5%)of the anticipated Assessor's full cash value of each improved parcel upon completion of the bond • financed improvements and the reasonably anticipated private improvements. I. A backup special tax or other security device to protect against changes in densities resulting in Insufficient annual special tax revenues to pay annual debt service and administrative expenses may be required at the sole discretion of the City. Credit Structure of Bond twos. Each bond issue shall be structured to adequately protect bondholders and to not negatively impact the bonding capacity or credit rating of the City through a combination of credit enhancements,foreclosure covenants,and special reserve funds.Specifically: a. A credit enhancement will be required whenever one entity or related entities are responsible for twenty percent(20%)or more of the debt service obligation of the proposed debt issue.The required credit enhancement shall take the form of,and shall be provided as set forth In Attachment B, hereto. b. A foreclosure covenant will be required and shall be included In any applicable bond indenture or fiscal agent agreement. In addition,within the fiscal year immediately following the first full year of delinquency,foreclosure action shall commence against delinquent parcels as specified In the foreclosure covenant made to the bond owners. c. The City will require that capitalized interest on the initial series of bonds be funded from the proceeds of the bonds. Capitalized Interest shall not exceed twenty-four(24)months, and shall be for a shorter period if(i)further restricted by stature or(ii)determined by the City,in its sole discretion. interest earnings may,at the City's discretion be applied to extend the initial term of capitalized interest but in no event beyond the term statutorily authorized.The inclusion of capitalized interest in subsequent series of bonds will be at the City's discretion and will only be permitted if a direct benefit inures to the ultimate property owners. d. A reserve fund equal to the lesser of: (1)ten percent(10%)of the original principal amount of the bonds,(2)maximum annual debt service,or(3)one hundred twenty five percent(125%)of average annual debt service(the"Reserve Requirement")shall be funded from the proceeds of each series of bonds.A reserve fund surety bond or letter of credit,provided by a municipal bond insurer,a major banking institution or other equivalent source, may be substituted,at the City's sole discretion. Level Debt Servi eReauirement.Bond issues will be structured with approximately level debt service.To the extent that bonds are issued in series,individual series of bonds may have uneven debt service if the intent is to create level debt service at such time as all series of bonds are issued and to minimize the potential of fluctuating annual special taxes. 4 9 2012-70 Maximum Term of Bonds. If a single series of bonds is contemplated,the term of the bonds shall not exceed thirty(30)years. If multiple series of bond issue are contemplated, in no instance should an individual residential parcel be encumbered for debt service beyond a thirty- five(35)year period. Disclosure. Disclosure of the special tax lien shall be in compliance with applicable statutory authority.The City,in its sole judgment,may require additional property owner notification if it deems such disclosure will assist subsequent property owners to be made aware of the lien obligation. In addition, applicants for CFD financings and all major landowners will be required to cooperate prior to and subsequent to all bond sales with initial and continuing disclosure to bondholders and the financial markets.Applicants and landowners will cooperate in the preparation,verification and dissemination of the identity of landowners,development project plans,timetables and statistics, and financial pro-forma information,and any other information the City and its financing team deem appropriate. Formation: P ment of initial Fees and Costs by Applicant.No Proposal to initiate the formation of a CFD financing will be considered valid without the payment of a fee to compensate the City for all costs incurred to perform its analysis of the proposal and to pay for the costs of conducting the proceedings.Applicants for public financing projects shall submit proposals to the City Manager.The City will review the proposal within one hundred(100)days after it Is deemed complete and make its determination whether or not to formally consider the proposed district.The applicant(s)shall deposit a minimum$10,000 estimated fee amount with the City Manager at the time the proposal is submitted.The minimum fee will be increased to an amount determined by the City in its sole discretion to be appropriate given the size and scope of the proposed project or financing.The estimated fee amount shall be in the form of cash or other negotiable instrument. Failure to submit any requested increase in the deposit will result in a suspension of the processing of the financing. Independent Review by the City.The City will perform an independent review of the proposed public financing and may take recommendations to the City Council regarding the financial risk, impact of the City's bonding capacity,economic feasibility and related issues.The appiicant(s) shall be required to provide current and two prior years financial statements, preferably audited, of the entity responsible for the development and initial payment of special taxes and other material to assist the City or its agent in its fiscal review. City to Select Professionals. The City shall select the bond counsel, underwriter,financial advisor,appraiser, absorption consultant, special tax consultant and other professionals and consultants it deems appropriate. C000 atlon b C v Departments.All appropriate City departments will cooperate in conducting the necessary reviews and proceedings. 5 10 2012-70 shall emphasize •Ail statements and materials related to the sale of CFD phasize and state that neither the faith,credit nor the taxing is pledged to the re bonds replenish the payment of the bonds,nor is there an obligation of the City reserve fund from revenue sources other than special taxes or proceeds proceedings. tY to p eds of .�►to Acauirp r design,engineering and maintenance of the the desire of the City that it incur no liability proceeds.e, g n is e e grand a of the public improvements to be financed for the financed public he preference infrastructure,under the w�h bond the"acquisition district"approach to pay bond of the financed improvement or approved components will be released only upon pay for CFD which Is to own the Improvement s thereof and acceptance by e entity which or maintained by provement.All contracts for public improvements to be owned,the City shall be consistent with the requirements set forth In Attachment operated hereto. p aced ttachmen#C, consultant to assist the City during its The City may,at its sole discretion, employ a financial City section hereof) cal review period(noted In the Independent Revie�,by all costs for consulting services will be borne by provided in the Payment of Initial Fees and Costs by Applicant Y Y pplicant section hereof. applicant(s)as will be used and disbars . The financing documents will provide that bond proceeds ed at times and in the manner as specified in the resolutions City with forming ith respec#thereto. forming the CFD and other such agreements entered into with the Cit R v with administrative responsibilities will notify th bond City issues,all City departments circumstances if an event of default under the financing Council and file a written �AOrt of the nancing documents has occurred, .All proposed refunding or refinancing issues will be submitted City for review with complete disclosure of the benefits and costs of preliminary and final official statement or disclosure statement ed to the refunded shall final filed al o with the Cl the ndpo bonds to bencing,A meat fore City y bond Co bonds to be City Manager, City Attorney and the City Council. iI i P Ice . The City herein if,In the City's judgment, benefit Inureright ho waive or modify any of the and/or to the City. policies to property owners,the CFD O IS�.The City agrees to assume the ownership, operation completed public i acquired or constructed with Special provided completed pu li improvements mp Improvements vemeements and District bond proceeds, d the meet all requirements for public c improvements owned, d, operated and maintained by the City Including but not limited to construction to City standards 6 11 2012-70 as determined by the city engineer;2)funding for the maintenance of the improvements will be provided solely by private property owners through a combination of Assessment Districts, Special Districts,or contracts. City General Fund revenues shall not be used to fund the maintenance of any public improvements constructed with Special District bond proceeds. The City agrees to cooperate In a joint community facilities agreement with the San Bernardino City Unified School District("School District')to finance school facilities, if applicable.Alternatively, if the School District is the lead agency in the formation of a Special District for the Project,the City agrees to cooperate in securing a joint community facilities agreement with the School District in order that City required public improvements are acquired or constructed by such Special District and turned over to ownership by the City. 7 12 2012-70 ATTACHMENT A CRITERIA FOR APPRAISALS A. Definition of Appraisal.An appraisal is a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date,supported by the presentation and analysis of relevant market information. B. Standards of Appraisal.The format and level of documentation for an appraisal depend on the complexity of the appraisal problem.A detailed appraisal shall be prepared for complex appraisal problems.A detailed appraisal shall reflect nationally recognized appraisal standards, Including,to the extent appropriate,the uniform Appraisal Standards for Federal Land Acquisition,as well as appraisal standards promulgated by the California Debt and Investment Advisory Commission,and shall specifically identify any departure from such standards.An appraisal must contain sufficient documentation, including valuation data and the appraiser's analysis of the data,to support the appraiser's opinion of value.At a minimum,the appraisal shall contain the following items; 1. The purpose and/or function of the appraisal;a definition of the estate being appraised,and a statement of the assumption and limiting conditions affecting the appraisal. 2. An adequate description of the physical characteristics of the property being appraised; location, zoning,present use,end analysis of the highest and best use. 3. All relevant and reliable approaches to value consistent with section D below,as well as commonly accepted professional appraisal practices and the standards of the California Debt and Investment Advisory Commission. If a discounted cash flow analysis is used, it should be supported with at least one other valuation method such as a market approach using sales that are at the same stage of land development. If more than one approach Is utilized,there shall be an analysis and reconciliation of approaches to value that are sufficient to support the appraiser's opinion of value. 4. A description of comparable sales, including a description of all relevant physical, legal and economic factors such as parties to the transaction, source and method of financing,and verification by a party involved In the transaction. 5. A statement of the value of the real property. • 8 13 2012-70 6. The effective data of valuation date of appraisal,signature and certification of the appraiser. C. Conflict of Interest. No appraiser or review appraiser shall have any interest direct or indirect in the real property being appraised for the City that would in any way conflict with the preparation or review of the appraisal.Compensation for making the appraisal shall not be based on the amount of the valuation. D. Community Facilities District Appraisal Premises.The valuation of proposed special tax districts should be based on three premises: 1. Raw Land Value(Premise#1).The total land within the project shall be valued "as is". a. Without proposed infrastructure being financed or any future private improvements. b. With existing parcel configuration and existing land use entitlements. c. Considering planned densities allowed by the specific plan or other project approvals then in effect. This Is a typical type of land valuation 2. Project Buildout value(Premise#2).The total land within the project is valued under projected conditions. a. With proposed Infrastructure being financed completed. b. At the planned densities allowed by the specific plan or other approvals then in effect. c. Land development Is at the stage of being marketed to merchant builders or tentative tract maps ready to be filed. This is a projected value based on project plans predicated on market conditions continuing as project. 3. Bulk Land Value(Premise#3).The total land within the project is valued under projected conditions: a. With proposed infrastructure being financed completed. b. With existing parcel configuration. c. Considering planned densities allowed by the specific plan or other project approvals then in effect. This premise should consider a discounted or"quick sale"valuation considering time, costs and the possibility of a per unit value based on the total size of the project, 9 14 2012-70 ATTACHMENT B POLICY ON CREDIT ENHANCEMENT If property within the proposed boundaries of a CFD, owned by one entity or related entities, their successors and assigns, is responsible for twenty percent(20%)or more of the debt service obligation of the proposed debt issue,an irrevocable credit facility having the following terms will be required: A. The credit facility will name the bond trustee or fiscal agent as beneficiary. B. The face amount of the credit facility will be equal to three(3)times the amount of the annual debt service obligation for which the property so owned is responsible. C. The credit facility will have a term of at least one year and by subject to annual renewal or call prior to expiration. D. The credit facility may be drawn upon should there be a default by the property owner in the timely payment of the special tax obligation for the subject property. E. The credit facility must be issued by a financial institution acceptable to the City that is rated"A"or better by Standard and Poor's Corporation, Moody's investors Service or Fitch investors Service, Inc. F. The face amount of the credit facility may be drawn should the credit facility not be timely renewed or a substitute credit facility acceptable to the City not be timely provided,or if the rating or the capitalization of the provider falls to a level not acceptable to the City in its sole discretion. G. The face amount of the credit facility will be subject to periodic adjustments should the property owner sell or transfer portions of the property to unrelated third parties. For purposes of this Policy, parties will be considered to be related should they be so deemed by the Internal Revenue Code of 1986,as amended(the"Code"),and the regulations promulgated thereunder. However,the City does reserve the right to apply a stricter standard than that provided by the Code in determining parties that are related. The City may,in its sole discretion,require additional credit enhancements for particular CFD financing if it is determined that they are needed to bring the credit worthiness of the proposed debt issue up to a level that is acceptable to the City in its sole discretion, 10 15 2012-70 ATTACHMENT C CONSTRUCTION CONTRACTS FOR COMMUNITY FACILITIES DISTRICTS WITH MELLO- ROOS DISTRICTS With regard to the construction of public facilities that are to be financed from the proceeds of bonds sold pursuant to the Act,the following policies are to be applied: A. The appropriate City department will be specified as the CFD's representative to administer the construction of each of the facilities to be owned and maintained by the City. B. Unless otherwise agreed by the City,the facilities to be owned and maintained by the City are to be acquired by the CFD. C. Consistent with this policy,the City finds,pursuant to Section 53329.5(c)of the Act that it will not serve the public interest to allow the property owner(s)to elect to preform the construction of the facilities after the publication of the notice of the award of the contract and declaration to this effect is to be included In each resolution of intention submitted to the City Council pursuant to Section 53321 of the Act. D. The entity that constructs the improvements must comply with all applicable prevailing wage and bidding requirements,and so certify such compliance to the City prior to the use of bond proceeds to pay costs of any improvement constructed by an entity other than the City. 11 16 2012-70 EXHIBIT"C" TABLE OF PROCESSING FEES WC11130610.00011405311.3 1203f2011 17 2012-70 1 Planning Division 4 ;.< ': Community Development Department• • 300 North"D"Street,3rd Floor,San Bernardino,CA 92418-001 Phone: (909)384-5057 Fax: (909)384-5080 San.Been .Website: mor sbeliir_em PLANNING DIVISION SCHEDULE OF FEES Fees effective:January 1,2009 E3,i,,e Tcchriology Arc hive Tyne of Al;plRc,i1IC 1 i Fire Fi,r: Tot ill Amendment to Conditions: --Director review(Dpi) $583 $11.66 $8.00 $602.66 • -D/ERC review(DP2) $822 $16.44 $8.00 $845.44 -Planning Comm.Review (WP/DP3/SUB) $2,550 $51 $8.00 $2,609.00 Antenna Development Permit(DPi) $2,938 $58.76 11.25 $3,008.01 Appeal to Mayor&Common Council -Non-applicant,City resident $177 $3.54 $2.00 $182.54 $1,766 $35.32 $2.00 $1,803.32 -All others Appeal to Planning Commission ~! -Non-applicant,City resident $278 - $5.56 $2.00 $285.56 -All others $2,772 $55.44 $2.00 $2,829.44 Conditional Use Permit -Alcohol outlet in existing building $3,858 $77.16 $12.00 $3,947.16 -Commercial&Industrial(non-residential) $7,133 $142.66 $12.00 $7,287.66 Residential(Condo,HMOD,Guest House) $2,809 $56.18 $12.00 $2,877.18 -Revision $2,113 $42.26 . $12.00 $2,167.26 Design Review Full Consultant Cost * Development Agreement or Agreement Direct Cost + 2% • . Amendment Recovery Fee - Development Code Amendment $7,449 plus Full $148.98 * • Consultant Cost Development Permit • - Type 1(DPI-Director review) $1,070 $21.40 $11.25 $1,102.65 - Type 2(DP2-Dev.Review Committee) - $6,890 $137.80 $12.00 $7,039.80 - Type 3 (Planning Commission) $7,191 $143.82 $12.00 $7,334.82 • - Type 3 (Mayor and Common Council) $7,288 _$145.76 $12.00 174445.76 1 18 2012-70 (3n,,‘, 1t chiio{ngy ATchlvc Type of!Application FCC f c, i c( Total Document Copies Varies-see page 4 Environmental Study(Initial Study prepared $3,273 $65.46 n/a $3,338.45 by staff for MND with NM/RP) Environmental Impact Report Direct Cost Recovery Fee plus Full Consultant Cost Extension of Time -CUP&Development Permit 2/3 $3,922 $78.44 $11.25 $4,011.69 -Tentative Tract Maps $4,768 $95.36 $11.25 $4,874.61 Fence/Wall Permit $56 $1.12 1.50 $5 6z Fire Fees - CUP&Development Permit 2/3 $413.45 $413.45 - Subdivisions,Tentative Tracts,Parcel $361.85 n/a n/a $361.85 Maps,and Lot Line Adjustments (CA Dept of)Fish&Game Fees(Make check payable to."detk of the Board of supervisors' • - Environmental Impact Report $2,768.25 + $50 Admin. Fee $2,818.25 -Negative Declaration(with or without $1,993.00 + $50 Admin.Fee $2,043.00 MMRP) $50 $50.00 -Notice of Exam. A on General Plan Amendment(text or map) Direct Cost Recovery Fee($1500 Deposit) Historic Preservation Report Direct Cost Recovery Fee($815 deposit plus Consultant Cost) Home Occupation Permit $268 $5.36 $2.00 $275.36 Letter of Zoning&Gen.Plan Consistency $450 $9.00 $2.00 $461.00 Lot Line Adjustment $477 $9.54 $8.00 $494.54 Minor Exception -Concurrent with another application $288 $5.76 $4.50 $298.26 -Owner-occupied single-family residence $268 $5.36 $4.50 $277.86 -Other $792 $15.84 $4.50 $812.34 Misc.Environmental Report Review Direct Cost Recovery Fee($245 deposit)plus Full Consultant Cost($327 deposit) Minor Modification/Revision $561 $11.22 $4.50 $576.72 _ Phasing Plan Review -If not part of original project review $823 $16.46 $12.00 $851.46 • -Dev.Review Committee application $514 $10.28 $12.00 $536.28 (DP2) $536 $10.72 $12.00 $558.72 -Planning Comm.application 2 _19. 2012-70 Bose I eChI (PJyy nt chive Type of Al plic,itinn I krc fec I cc Tot:11 (CUP/DP3/SUB) Planning Commission Interpretation $1,119 $22.38 n/a 114138 Public Convenience or Necessity Letter $636 $12.72 5.50 $654.22 (PCN) Pre-Application Review-DRC Review $2,424 $48.48 $6.00 $2,478.48 (0 en application is filed within 60 days of the review, $1,500 will be credited Inward that application.) Reconsideration by the Planning Comm. $506 10.12 n/a $516.12 Sign Permit $182 $3.64 $5.50 $191.14 - Requiring Conditional Use Permit $3,858 $77.16 $5.50 $3,940.66 -Temporary $111 $2.22 $5.50 $118.72 Sign Program $610 $12.20 $5.50 $627.70 Specific Plan or Specific Plan Amendment Direct Cost Recovery Fee plus Full Consultant Cost Temporary Use Permit -Director Review $450 $9.00 $4.75 $463.75 • -Planning Commission Review $782 $15.64 $4.75 $802.39 Tentative Parcel Map $4,262 +2%of $8.00 Va it es plus$65 per parcel calculated base fee Tentative Tract Map(for Single-Family $7,561 +2%of $8.00 Varies Residential,Condo's,or P.R.D.) plus$65 per lot/dwlg calculated unit base fee Tentative Map Revision-Tract/Parcel Map $2,113 $4226 $8.00 $2,163.26 Tree Removal Permit $506 $10.12 $4.25 $520.37 Variance $2,724 $54.48 $4.75 $2,783,73 -With another application $910 $18.20 $4.75 $932.95 -Single Family Residence $322 $6.44 $4.75 $333.19 Vesting Tentative Maps Direct Cost Recovery Fee plus Full Consultant Cost- Zoning Form-written verification of zoning $22 $.44 $2.00 $24.44 only Zoning Verification Review(for Business $37 $.74 $2.00 $39.74 Registration Certificate) *Archive fees are$1.00 plus$2.00 per plan sheet plus$25 per document. Total archive fee will very base on roil number of case file documents. 3 20 2012-70 Direct scowl,Fed The Direct Cost Recovery Fee shall include all City labor and material costs, both direct and indirect,Including overhead charged against the specific Item being discussed.The applicant shall pay a deposit for the Direct Cost Recovery Fee at the time of filing the application. •Fu Consultant Cog The Full Consultant Cost shall include all costs incurred by the City under contract with a consultant. The applicant shall pay a deposit for the full consultant costs at the time of filing the application. Deposit Reauired The applicant shall pay an Initial deposit of$1,500 (or the deposit listed In the fee schedule) at the time of filing an application on which there is a Direct Cost Recovery Fee.The applicant shall pay an initial deposit of $1,500 (or the deposit listed in the fee schedule) at the time of filing an application on which there is a Full Consultant Cost Fee, When 75% of a deposit has been expended, and the Planning Division determines that the estimated remaining costs of the job will exceed the amount deposited, an additional deposit of such excess shall be required. Notification of the additional deposit required will be mailed to the applicant, who shall deposit such monies prior to the date specified in the notice. When an additional deposit has been requested, work will be suspended on the project when 95% of the deposit previously received has been expended. Projects will not be completed with money due. If an addllanal deposit is not made by date $• :._i 7• 1 I. I•A i- - • • -P: Jr- !CAI •1 e1.: '.•e All' •I 1.11 ;01 •l on • .n L; 1.rd • .n• A 1 I• n• .1 .1 IlL•I - 1!r i l no Such project may be reinstated only if additional deposit is made within 30 days from the date that the project was deemed withdrawn. If a project Involves multiple applications, the full amount of fees for each type of application shall be paid. Refunds will be made by the City of any fee that was erroneously paid or collected, for any unused deposit monies of Direct Cost Recovery Fee or Full Consultant Cost Fee after all changes for the project have been determined,or as determined by the Director. Fees are automatically adjusted annually on January 1st of each year, based on the latest available Consumer Price Index Increase from the prior year. Fees adopted per Resolution No.69-471(11/22/89),Resolution No.91-148(4/18/92),Resolution No.2003-211 (8/4/03), and Resolution No. 2006-325 (9/5/06). Fire Department fees authorized by Resolution No. 1999-173 (7/13/99) and Resolution No.2006-325(9/5/06). Technology Fee of 2.0%Is authorized by Resolution No.2008-149(05/07/08). FEES FOR DOCUMENTS & MAPS Account#001-000-4710 Documents The General Plan, Development Code, and other documents are available on the City's web page: www.sbcity.orq,select Departments and Development Services and Planning. Maps Maps are available in the General Pian located on the City's web page: www.sbdtv.org. select Departments and Community Development and Planning. Copying a. Photocopies 354 first page, plus 154 each additional page 4 21 2012-70 k' _ F Engineering Division Y! ,,,. Development Services Department 300 North"0,'Street, 3rd Floor,San Bernardino,CA 92418-001 Phone: (909)384-5111 Fax: (909)384-5115 Website: wuvw.sb= rg ENGINEERING DIVISION SCHEDULE OF FEES Fees Effective:July 18,2009 ii,v., T ,t,u.utcUU T .ciulnlogy At(-11+v.: 1 YlU of Ap plic,+liotil Yie.∎:tj • Basic .emit Fees: $45.00 $.90 $1.00 $46.90 -Engineering Permit $53.00 $1.06 $1.00 $55.06 -Blanket Permit -Permit Extension $43.00 $.86 $1.00 $44.86 permanent Encroachment Permit $625.00 $45.00 $12.50 $1.00 $683.50 Temporary Encroachment Permit: - No Lane Closure $25.00 $45.00 $1.40 $1.00 $74,80 - With Lane Closure(First Day) $136.00 $45.00 $3.62 $1.00 $185.62 - Each Additional Day $60.00 * $1.20 * $61.20 Combo Lane Closure With Excavation $286.00 $53.00 $6.78 $1.00 $346.78 Special Events Encroachment Permit: $500.00 $45.00 $10.90 $1.00 $556.90 - With A Lane Closure $571.18 - With A Street Closure $514.00 $45.00 $11.18 $1.00 $354.94 - Road Closure(First Day) $302,00 $45,00 $6.94 $1.00 - Road Closure(Each Additional $30Z.00 * * * $302.00 Day) Oversize Load Permit/Building Move $1.00 $18.34 - One Day Permit(State Fee) $17.00 * $ .34 * $1.34 4 $1.00 $97.90 - Annual Permit(State Fee) $95.00 Permits f= -• irst Day $393,00 $45.00 $7.86 $1.40 $401.86 - Each Additional Day ... $100.00 * $2,00 * $102.00 Excavation Permit(Per Day) $150.00 $45.00 $3.90 $1.00 $199.90 1 22- ` 2012-70 [i,i,;r Rc ll1C(' TechtioI ly Archive I yok of Ap lk_;ll.iot, I-'', 1_ y I:t,,, ()" ,) ref, (1-! ,j_ 1Ofli Shoet) Traffic - udy Report - Base Fee . $719.00 * $14.38 $ .25 $733.63 - Extended Review(Per Hour) $80.00 * $1.60 * $81.60 Final Map or Parcel Map Review: -Base Fee $2,210.00 * $44.20 $2.00 $2,256.20 -Per Lot Fee $55.00 * +2% - Each Additional Review $135.00 * $2.70 * $137.70 - Final Map Continuance $404.00 * $8.08 * $412.08 - Certificate of Correction (Per $97.00 * $1.94 $2.00 $100.94 Hour) Off-Site Improvement Plan Check Fee/Based on Construction Cost Estimate Minimum$50.00 Charge 4% * + 2% $2.00 1 On-Site Improvement Plan Check Fee/Based on Construction Cost Estimate 2% * + 210 $2.00 - Grading Plan Check Fees: - 50 or Less Cubic Yards(CY) No Fee * * * * - 51--100 Cubic Yards(CY) $15.00 * $ .30 $2.00 $17.30 - 101.1,000 Cubic Yards(CY) $22.50 * $ .45 $2.00 $24.95 - 1,001-10,000 Cubic Yards(CY) $30.00 * $.60 $2.00 $32.60 - 10,001-100,000 Cubic Yards $30.00/$15.00 * + 2% $2.00 (CY) additional 10,000 CY + 2% $2.00 - 100,001-200,000 Cubic Yards . $165.00/$9.00 * (CY) additional 10,000 + 2% $2.00 CY - 200,001 Cubic Yards(CY)and up $255.00/$4.50 * additional 10,000 CY Four or More Plan Checks $85.00 * + 2% $1.00 Review Revisions to Approved Plans $137.00 * $2.74 $2.00 $141.74 Review Fee: -Certificates of Compliance $828.00 * $16.56 $ .25 $844.81 - Lot Lot Line Adjustment-Single $828.00 * $16.56, $.25 $848,81* Family/Owner Occupied $414.00 * $8.28 $.25 $422.53 - Lot Line Adjustment- Commercial/industrial $828.00 * $16.56 $.25 $844.81 • 2 23 2012-70 1 1,,,,e T ssti ii t Tochnotor)y Archly, Fr ,. Fc ; Fr,,, (2',,„) {,,k (P,-r 1 ot<11 1 ypr� of Application Sho,lt) OW-Si*Construction Inspection Fee/Based on Construction Cost 4% * + 2% * Estimate On-Site Construction Inspection + 2% Fee/Based on Construction Cost , 3% Estimate Grading Inspection Fees: - 50 or Less Cubic Yards(CY) No Fee -- 51-100 Cubic Yards(CY) $150.00 * $3.00 * $153.00 - 101-1,000 Cubic Yards(CY) $225.00 * $4.50 • * $229.00 - 1,001-10,000 Cubic Yards(CY) $300.00 * $6.00 * $606.00 - 10,001-100,000 Cubic Yards $300.00/$100.00 * + 2% (CY) additional 10,000 CY - 100,001-200,000 Cubic Yards $300.00/$100.00 * + 2% (C additional 10,000 CY - 200,001 Cubic Yards(CY)and up $300.00/$100.00 additional 10,000 CY * + 2% * Blanket Permit Inspection (Per $73.00 * $1.46 * $74.46 Location) Re-Inspection $59.00 * $1.18 * $60.18 Bond Release Inspection $59.00 * $1.18 $1.00 $61.18 After Hours and Holiday Construction Inspection: - 4 Hour Minimum $369.00 * $7.38 * $376.38 - Each Additional Hour $92.45 * $1.85 . * $93.30 Review of Storm Water Pollution Prevention Plans(SWPPP): - Commercial and Residential $410.00 * $8.20 $.25 $418.45 Projects - Industrial and Linear ,$265.00 * $5.30 $.25 $270.55 (CIP/Utility)Projects Review of Water Quality Management Plans(WQMP): - Non-Categorical - $80.00 * $1.60 $ .25 $81.85 - Categorical without Conditions of $365.00 * $7.30 $ .25 $372.55 Concern - Categorical with Conditions of $1,130.00 * $22.60 $ .25 $1,152.85 Concern - Pour or more Reviews(Per Hour) $99.00 * $1.98 $ .25 $1.01.23 3 24 - - 2012-70 fl,t,,, I ,'l.L Inct. Thchouluyy Ai(Iiivc Typo of 1pplic,3ti ;n F( t_, c.. f,' (? ,, ,) Fit: (Pti 101,11 Slit_HI) Review of Erosion/Waste Management $75.00 * $1.50 $ .25 $76.75 Control Plan National Pollutant Discharge Elimination System(NPDES) $88.00 * $1.96 * $99.96 Construction Inspection: - Less Than 10 acres $179.00 * $3.58 * $182.58 - 10 Acres or More National Pollutant Discharge $145.86 Elimination System(NPDES)Business $143.00 * $2.86 $1.00 Ins.action: Hydraulic/Hydrology Study: - Three Hour Minimum $487.00 * $9.74 $ .25 $496.99 - Four or More Hours $100.00 * $2.00 $ .25 $102.45 Temporary Certificate of Occupancy $520.00 * $10.40 $1.00 $530.25 Engineering Letter $100.00 * $2.00 $ .25 $102.25 Street Name Change -- Plus the Cost of the Sign $1,345.00 • * $26.90 $ .25 $1,372.15 Sewer Capacity Analysis: - Minimum Fee $280.00 * $5.60 $ .25 $285.85 -- Extended Review(Per Hour) $80.00 * $1.60 $ .25 $81.85 Street Light Electrical Energy Fee .4 4280 - 70W 5,800L Type A $420.00 Each * $8.40 $ - 100W 9,500L Type B $472.80 Each * $9.52 $482.26 8 0 - 150W. 16,000L Type C $720.00 Each * $14.40 • $734.40 - 200W 22,000L Type D $912.00 Each * $18.24 $930.24 Billing Fee $59.00 * $1.18 $ .25 $60.43 Street or Alley Vacation - Deposit $1,000.00 * $20.00 $ .25 $1,020.25 - Balance Due Prior to Processing $1,000.00 * $20.00 $ .25 $1,020.25 Dedication of Right-of-Way(Each): - If Legal and Map are Provided $315.00 * $6.30 $ .25 $321.55 - If City Prepares Legal and Map .. $800.00 * $16.00 $ .25 $816.25 Private Party Annexation Request $14,750.00 * $295.00 $ .25 $15,045.25 City Property Lease Processing $2,100.00 * $42.00 $.25 $2142.25 4 • 25 2012-70 T4tchnrr)locly 1ltcHVi lypc of Applic,ttion Sh Ft) Community Facility District $7,010.78JLot $140.22 $.25 $7,151.25 Verdemont Area Only — Rnsidentlel in Lieu Fee $386.43/Lot $7.73 $•25 $394.40 — Residential if in CFD 2009/2010 $48,975.34/Acre $979.51 $.25 $49,954.46 Industrial/Commerda!in Lieu $2,699.48/Acre $53.98 $.25 $2,753.72 Fee industrial)/Commardal if in CFD $5,900 $118.00 .25 $6,018.25 2009/2010 — CFD Formation Fee $5,900 $118.00 $.25 $6,018.25 Assessment District ' Outside City Sewer Service Permit $1,300.00 $45.00 $26 $1.00 $1,327 * Archive fees are$1.00per permit,$2.00 per plan sheet and$.25 per document. Total archive fee wilt vary base on the total number of case file documents. FEES FOR DOCUMENTS&MAPS Account*001-0004710 Documents page: The General Plan, Development a Development other Services documents nd Planning.a available on the City's web • lyww.sbcitv.( ,select Departments Maps W_Sbdty.Ora select Departments and Maps are available in the General Plan located on the City's web page: ww — Development Services and Planning. Copying 354 first page, plus 154 each additional page Photocopies • 5 26 2012-70 EXHIBIT"D" TABLE OF IMPACT FEES WC11130610,00011405311.3 12!2312011 27 2012-70 March 28,2012 Update EXHIBIT D UNIVERSITY HILLS IMPACT FEE SCHEDULE Fees to be paid by the initial 504 Units: Detached Attached • Local Circulation System Fee $232.94 $155.28 • Regional Circulation System Fee $2,435.00 $1,626.00 • Sewer Connection Fee $419.72 per bedroom,both • Storm Drain Fee $3,925.91 $1,620.67 • Sewer Capacity Fee $3,500.00 $3,500.00 • Sewer Inspection Fee $29.18 $29.18 • Water Acquisition Fee $4,740.00 $2,370.00 • Water Administration Fee $180.00 $180.00 • School Fee $5.19 per SF for both • Parkiand and Open Space Fee $9,517.86 $7,533.45 Fees specifically excluded for the initial 504 Units • Law Enforcement Fee $639.07 $566.22 • Fire Suppression Fee $792.09 $977.13 • Library Facilities Fee $637.89 $505.30 • Aquatic Facilities Fee $326.11 $258.00 • Public Meeting Facilities Fee $1,089.54 $861.84 Current Fee Categories,to be paid by all units after the initial 504 Units. • Local Circulation System Fee $232.94 $155.28 • Regional Circulation System Fee $2,435.00 $1,626.00 • Sewer Connection Fee $419.72 per bedroom,both • Storm Drain Fee $3,925.91 $1,620.67 • Sewer Capacity Fee $3,500.00 $3,500.00 • Sewer Inspection Fee $29.18 $29.18 • Water Acquisition Fee $4,740.00 $2,370.00 • Water Administration Fee $180.00 $180.00 • School Fee $5.19 per SF for both • Law Enforcement Fee $639.07 $566.22 • Fire Suppression Fee $792.09 $977.13 • Library Facilities Fee $637.89 $505.30 • Aquatic Facilities Fee $326.11 $258.00 • Public Meeting Facilities Fee $1,089.54 $861.84 • Parkiand and Open Space Fee $9,517.86 $7,533.45 NOTE: Fees set by the State, regional governing board, School District Board, Board of Water Commissioners (or body other than the Mayor and Common Council) are subject to change at their discretion and not impacted by terms of this agreement. 7R 2012-70 EXHIBIT"E" MITIGATION MONITORING AND REPORTING PROGRAM WCH130610.0001MO5311.3 12/23/7011 2012-70 Final Environmental impact Report University Nils SpacMc Plan Mitigation Monitoring and Reporting Plan_ 5.1 introduction The following plan will help assure that the mitigation measures contained in the Draft EIR,and as modified in this Final EIR,are properly implemented according to state law. This Mitigation Monitoring and Reporting Plan(MMRP)identifies measures incorporated into the project that reduce its potential environmental impacts,the entities responsible for implementation and monitoring of mitigation measures,and the,appropriate timing for implementation of mitigation measures. As described in Section 15097 of the State CEQA Guidelines,this MMRP employs both reporting on and monitoring of project mitigation measures. The objectives of the MMRP are to: • Assign responsibility for,and ensure proper implementation of,mitigation measures; • Assign responsibility for,and provide for monitoring and reporting of compliance with mitigation measures;and • Provide the mechanism to identify areas of non-compliance and the need for enforcement action before irreversible environmental damage occurs. Mitigation monitoring and reporting procedures incorporated into the project are presented in the following Section(Section 5.2). Specific mitigation measures incorporated into the project, mitigation timing,and implementation and reporting/monitoring responsibilities are presented in Table 5-1. 5.2 Mitigation Measures and Reporting 1 As the Lead Agency,the City of San Bernardino is responsible for ensuring full compliance with the mitigation measures adopted for the Proposed Project. The City will monitor and report on all mitigation activities. If,during the course of project implementation,any of the mitigation measures identified cannot be successfully implemented,the City shall immediately inform any affected responsible agencies. The City,in conjunction with any affected responsible agencies,will then determine if modification of the project is required,and/or whether alternative mitigation is appropriate. Table 5-1 presents the implementation plans for the proposed mitigation measures for the University Hills Specific Plan. 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N� z.$333 MM-N G g r► �► O o a I 0 . 1 1- rI 1. 9.61 VIAA!§1§ ii , Dill I gilt 101 I 1111! f 111 Y 2 al 54 2012-70 11 iii . i 191 9 1 e ■ aji i i 38pfl ,� n g 4.1 lif" F: U t 1 1 11 a k i 1 .G w ,b JS c a . e asa sags it ii V- 0 Z �.- •b- C N 111 it HI IIII1 !I 11 1 i ttte l WA s 4G; 11x1 " S z� z d 8 a, Ae g � � ` A $. f a' x a E w C I a e I- 11 1.10 Lo d di i i 1 Fes- Ilw lot i Pi ill! I i 55 2012-70 EXHIBIT"F" 5 YEAR PERFORMANCE REQUIREMENT INCH\30610.0001\405311,312/23/201 56 2012-70 Exhibit F 5 Year Performance Requirement Prior to the fifth anniversary of the effective date of the development agreement the Owner/Developer shall: Acquire the necessary rights (easements, licenses, rights of way, encroachment permits,etc) to construct the Phase 1 Infrastructure,including roads;Intersections, drainage facilities, slopes,fuel medication areas,water storage tank and water lines. Complete a full submittal of completed construction plans,which will include the civil engineering and landscape architecture,for a phase of single family homes consisting of at least 25 lots,with an associated park. Complete a full submittal of completed construction plans for the Phase 1 infrastructure as follows: Phase 1 Infrastructure consists of: • • Campus Parkway from Northpark Boulevard to the project site, and through the project eastward along the Primary Local road, then along the Community Local I road to Little Mountain Road, southerly and westerly to the CSUSB campus, then southerly to the intersection of Northpark Drive.This consists of new construction, reconstruction of intersections and the acquisition of right of way or easement rights. • 2 Water storage tanks, one of 1.5 million gallons, one of 1 million gallons, along with an 1880 pressure zone pump station and a 1720 pressure zone pump station, as well as associated lines to interconnect the system. • The backbone drainage system as shown on exhibit 3-28 of the specific plan, excluding drainage systems for Planning Area 15. • The backbone sewer system as shown on exhibit 3-29,excluding the system to serve planning area 15, as well as the system to service to planning areas 16,17,18,19, and 20. 57 2012-70 EXHIBIT"G" FACILITIES MAINTENANCE PLAN • WCH1306I 0.0001 M 05311.312/23/2011 58- 2012-70 • tiE ip 1 11 a 1 0 a A 1. 11 . . 14 g IIIII1Sji a 11 '5' 11 ti girl ■ . 1. lluii1iIiIiifl1hll,.. .4e3 IA dvT 43 t4 a3el Si Iti �:911 . s 4 ;.)o slu . ._.... _. ...._ _ n - eir., „„pr, . 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Maximum lot rani, .-:: 600/x:.• 7096:_• 75+• :TiontSetl.,:3rk; • I Ta structur& 12f:.' 00' . „74 To ito It trlt ya:ge 18 ft:, 18 0 NIA• To j en 0 tage Oft:_ .D-.it .. Oft•To side-enirYB 1511 10'11 10at. Toone d.pih1 loll: ' .....:.5.4 aft To 10 5ft 3 Projections into setback a 47t. 211 1:ft• .. . rep; : Ooi 5ft • Oor3tt Oor`3;t1;• To trout ehhy gee in rear l l3 of ict )t..:. : ..0.ft- Aft. To al*Iii i gamma Ofi. , 0.fi: Olt 5 'Ifltosi ? 21t 1`f 14 Toff a:SetUe terob) b 151t. : ron 10 t S Y To h e eurure(haeo aey)*.t 51 :tit.- '...6 it t O 5 ut (1 0 30foode a 2aorwde paved•rgg aia• with wta 3 6t arrcr n eh ay 1 is r ed In akeys To aey-entrygae no.' q.(2)a 4 foot#406 alley tooWide. pved�n a footapo lh side) required.' in a lOys;W pl 'o trontrenlry g.. 1n rear 110 o1 lot Ott ' 0 I-- ': O t• Prole iftfa � 6 . a1 H3t ; 2.11 Meildtitii0l fi t �tt'.. s , •ote, Ttr'?d pel�rrfltted to•25% Permitted in 25% Tandem paitclhg 9 pe04...4d to 1w tandem �rfunl#S of untfs Building Separations 7 1011` 611 6 ft• University hills Specific Plan Page 3-5 63 2012-70 ... - ... .. .Y • • T00 44. .. Development:�ndards:�-:Attached Residential Uses:_ • Densit Average densitt►' • 1'40.13116.• 6.8`D lac 91 1.5.0 Dialac in PAti 8"13 . Density tarige 9.1-17.0;DU7sbI PA 10,14,8 5.1--20,0 DUlac •i !P 2: ttes 2 aces Maximum site liege(building.r 75% I57° • Setbacks Front 1-xtoioi Pulili;-Street • TQ t tlttUctufe 1t:ft • 1p tPki1. . 71t • : BuiEdiny SaE��raUOCt Froflt t ft a ;•Fet` . esp 1 5.ft 15-it• •i+lla teait obiique separation O ft 10• h30 2 Ansy Eiter(1l a aotwe ae ( 4 oot a paewee with a 11 3 • toot &de is ittr, Mth fib pafking,or (2 a Y1 lie j#B 1 et'"v de paved t+ h a 3 foot • t 'q t dtt)'i8: lred In with p ig.. •. • MSddmufi height 3: -. • 40 ft 4 it Mlmatut liti tie area Stud 850 sf 1 n _tom 700sf • - 2 Bedroom 900`at 3 Bedrogin 1,100 sf •Minimum common open space's 150 sf per unit•• ..Min privofe span Space peo,tiit s 80 of per unlit Minimum-dhltenaion of 6 ft in any,direction• fandtam parking Permitted in 30%of units • • Permitted in 30%of•units it#fact of=eque(e feet Dylec=patiang unibper sae Notaa;.: - Ail iiiittigiunitlia titmouse's*am.back gibs'again-to abaphnq unless noted Whine*. +Pro ec64ne are iactitealursiteatotos that ednd d the MildwIg face dione mdudefeabires sodr Meares.bay atidawa,etelnreya,p teiandthand tedu tetdrg ProJeona i oenaoach Olio 3 ant te ppey1ne 2 Biitio .3eperadan b nNbeiured:tram file exiederwell of a Madam-forte ex100`well•of mother aepaele shuchrre.The telloWI 9 matt engoed►Into the riqulmd aupe don.l)atphltedural nate#MikiMidasigionii,and eaves-311;2)covered P0449 and atocps 5 3)belooiffeb and scarf ft;: aMexnnumbrlld'ngheIghtladefinedpdilrehelMtfmnrttnshed.0detothelopoftheraofpeeC tstlict eilsgreater.An •ardf.tei telpfo)eellaaaOGhas a:diimneya.nonhabltable.toatermal fexoeedthetrialaalm 10 feet. 4 See the cheit apace prow s. the Multi-Family Open Space ouid. Ines oh page 3.13 forgr�rdetS l and definition. 1heclublluua(plandngarea7)and pul&aitlia(plainiing lanai 1,41,19 aid 21)cotetttoee rds the MOM daimon open .. :. . epece rated: Development Standards for Other Uses Development standards for-structures within the Clubhouse,Public Park, Open Space,Utilities,and Internal Slope land use categories are'provided.in . Table 3-5. - University Hills Specific Plan Page 3-7 • 64 2012-70 Development Criteria • • Table-34 Devet eilt_Standards-Othe Use. • I.:, W . Het9ht:b suture': 40.4 201t.'. r .154- Setback at stntcture from property ..20C ; *ft loft. N • • • • • • • • Thies . 1 Page 3-8 lune 2008 65 2012-70 ATTACHMENT 3 AGREEMENT CONCERNING DEVELOPMENT OF UNIVERSITY HILLS BY AND BETWEEN TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY SAN BERNARDINO THE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO AND FONTANA CORNERS 111,L.P. Dated: June ,2010 66 2012-70 TABLF{OF CONTENTS RECITALS ... 1 1. Summary of Proposed University Hills Project ...4 2. Project/Campus Improvements 6 2.1. Development of Points of Access to Project Area 6 2.2. Signalized Street Intersections 7 2.3. Slopes and/or.Retaining Walls Regarding the Points of Access 7 2.4. Easements for Public Rights of Way at Points of Access and Extensions. 8 2.5. Construction of Points of Access 8 2.6. Map of Utilities and Stub-outs for CSUSB 9 2.7. Right of Way Easement from San Bernardino County Flood Control Agency 9 3. Master Declaration;Master Association 9 4. Project Approval 10 5. Mutual Support of Project and Faculty/Staff Housing 10 6. Disapproval or Substantive Modifications of Amendments 10 7. The Parties Duties Upon Project Approval 11 8. Not Transferable 11 9. Assignment 11 10. Notices 12 11. Automatic Expiration 13 12. Covenant of Good Faith and Fair Dealing 13 LIST OF EXHIBITS EXHIBIT'A' Aerial View of CSUSB Campus,Fontana 111 Property,and surrounding Land Uses with Notation of Approximate Location of Certain Project Improvements EXHIBIT'B' UHSP Conceptual Development Plan EXHIBIT'C' T-intersection at the extension of Little Mountain and North Park EXHIBIT'D' Grading easement over Little Badger Mountain EXHIBIT'E' Grading easement and Location of Retaining Wall at the intersection of Campus Parkway and North Park EXHIBIT'F' Faculty/Staff Housing Parcel including entrance into the Parcel EXHIBIT'0' 2 University stub-out access points into Campus Parkway extension EXHIBIT'H' Location of the Trails access from the University on the main project trails along Campus Parkway i .. a1.0011■ndtkdud ComunwilIi 100-003(Day/ymt.)1P1ti1Awosmurc Concwins DevelnpmeM Rom CSU(6.t1 010)01(6.172010).doe • 67 2012-70 AGREEMENT CONCERNING DEVELOPMENT OF UNIVERSITY HILLS This AGREEMENT CONCERNING DEVELOPMENT OF UNIVERSITY HILLS ("University Hills Agreement') is made as of this—day of June 2010 ("Effective Date") by and between the TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ("Trustees"), THE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ("Foundation"), and FONTANA CORNERS 111, L.P., ("Fontana 111"), a limited partnership organized and existing under the laws of the State of California. RECITALS A. Fontana 1 l I is the developer of certain real property ("Fontana 111 Property") located adjacent and north of property owned by Trustees and utilized for Trustees' California State University San Bernardino's ("CSUSB") main university campus ("CSUSB Campus"). Both the Fontana 111 Property and the CSUSB Campus are located in the City of San Bernardino ("City"), County of San Bernardino ("County"), California. The Fontana 111 Property and the CSUSB Campus are depicted in Exhibit"A"for general reference. Note that Exhibit"A"also identifies the general location of other improvements, referenced in additional Exhibits to this Agreement. B. The Fontana 111 Property was previously known as "Paradise Hills," and is the subject of the City adopted Paradise Hills Specific Plan SP 90-03,General Plan Amendment 91- 07, Development Agreement 90-03, and a certified Environmental Impact Report (collectively, the "Paradise Hills Specific Plan"). The Fontana 111 Property as approved for development pursuant to the Paradise Hills Specific Plan SP 90-03 consists of approximately 404 (the "Paradise Hills Project Area") acres and is subject to a series of approvals by the City in 1993, 1 QA.ehMernneland CommunitliV t00.000(ON Asrrt.)lflnrl Asraunen%Conamla;Aaelopmat For OW(6-142010)01(6.170010).doo 68 2012-70 including without limitation the Paradise Hills Development Agreement No. 91-03 approved on March 19,1993. C. The Paradise Hills Specific Plan SP 90-03, as adopted, provided for 504 single family residential dwelling units to be located on approximately 229 acres of the Fontana 111 Property,with the balance of 175 acres representing what was defined in that Specific Plan as open space. Of the 504 single family residential units approved under that Specific Plan, that Plan provided for 121 Estate sized lots (nzini mum 10,000 square feet or more) which were designated for an area of the Fontana 111 Property now proposed under the University Hills Specific Plan (see Paragraph D)to be a portion of an area designated to be donated for public benefit D. Fontana 111 has made application to the City to amend certain of the previously approved Paradise Hills documents, including the Paradise Hills Specific Plan, to change the scale, scope and density of the permitted development,including the project area. The proposed amendments to the Entitlements of the Paradise Hills Specific Plan to form the University Hills Specific Plan involve consolidating the residential development of 980 dwellings on to approximately 184 acres of land located on the southerly portion of the Fontana 111 Property (the "University Hills Specific Plan Area"), which would leave remaining approximately 220 acres of land generally north of the southern branch of the San Andreas Fault line("Education and Research Parcel"), also shown in Exhibit"A". These proposed revisions to the Paradise Hills Project are consistent with Fontana 111's desires to accomplish those planning features described in Section 1 and elsewhere in this Agreement, and are also consistent with recent preferences communicated by the City. This revised project shall be known as the"University Hills Project," Exhibit"B" depicts the Conceptual Development Plan for the University Hills Project. E. CSUSB has identified to Fontana 111 a need for additional faculty and staff residential housing ("Faculty/Staff Housing"), and Fontana 111 recognizes the potential public 2 Q1webVnlaniWdand Conueuniiie0Mtl0403(Do A$ml.)FOm1 Apaemen Conoe,n ns povelo►m■m(tom (6.144010)0116.174010).doc 69 2012-70 benefit of assisting CSUSB in that regard by providing an area("Faculty/Staff Housing Parcel") within the University Hills Project for housing of faculty, staff and affiliated persons, and by making certainimprovements to the Faculty/Staff Housing Parcel'which will assist and facilitate CSUSB in its future development and construction of Faculty/Staff Housing. The term "affiliated persons"means and refers to persons who are affiliated in some official capacity with CSUSB operations, and not to the general public. Of the 980 dwellings on 184 acres, it is proposed that a Faculty/Staff Housing Parcel be set aside,being a maximum of four(4)acres in size and being zoned for not more than sixty (60) dwellings pursuant to the University Hills Specific Plan proposed to be adopted by the City,and used as housing for the CSUSB faculty, staff and affiliated persons until the end of build out of the multi-family portion of the University Hills development, or thirty (30) years from the date of this Agreement, whichever is sooner. CSUSB's use of the land must conform to existing zoning regulations. The Faculty/Staff Housing Parcel is depicted in Exhibit"B"as"PA-16,"and with further detail in Exhibit"F." F. Fontana 111 has identified certain areas within the CSUSB Campus which, if developed in conjunction with development of the University Hills Project, could benefit both Fontana 111 and CSUSB. These are identified herein as"Points of Access,"road"Extensions," and"Signalized Intersections." G. Trustees, the Foundation and Fontana 111 desire to enter into this Agreement to document and memorialize their agreements with regard to: (i)the proposed joint use of certain improvements, either now existing or to be constructed in the future, on both the CSUSB Campus and the University Hills Project Area; (ii) the development of the University [fins Project; (iii) the development within the University Hills Project of the proposed Faculty/Steff Housing Parcel; (iv) the development of the Education and Research Parcel, supported by adjacent infrastructure for Public benefit; and (v) the overall cooperation between Trustees,the Foundation and Fontana 111,and among Trustees,the Foundation,Fontana ill and the City. 3 Q:1woAllnleedSntwd Commmnhle410040)(D,.AIpm.)1llnal A esmem Coeccnnint Dcv,loppwnl Nom CSI(64 010)01(&.174010).doo 70 2012-70 Based on the foregoing Recitals, and in consideration of the mutual covenants of the Parties,the Parties hereby agree: 1. Summary of Proposed University Hills Project. In order to put in perspective the proposed revisions to the Paradise Hills Specific Plan which will, if approved, result in the University Hills Project,the following are feature highlights of the University Hills Project. 1.1. Project Area to be reduced from approximately 404 acres with limited open space to approximately 184 acres, resulting in substantially increased undeveloped land of approximately 220 acres. This will result in the elimination of 121 estate sized lots (minimum 10,000 square feet) which were approved under the previous Paradise Hills Specific Plan, substituting a portion of the Fontana 111 Property to become an Education and Research Parcel under the proposed University Hills Specific Plan. Final acreage will,of course,depend on final engineering in connection with the final approval of the University Hills Specific Plan. This expanded area creating an Education and Research Parcel will be made available for donation to the Trustees for the benefit of that public agency and the Public for uses, consistent with deed restrictions. The expanded Education and Research Parcel will include features of the San Andreas Fault,thus presenting a unique opportunity for"in the field" research a short distance from The adjacent CSUSB Campus. The Education and Research Parcel will also provide wildlife,geologic and geographic research and study opportunities. Additionally,it will offer to the Public the opportunity to engage in the close observation of wildlife and other environmental features in the Education and Research Parcel on the currently existing public trails, and will offer opportunities for the CSUSB Campus and other Public agencies to conduct study groups, science classes and other educational activities. 1.2. As proposed,the University Hills Project Area(reduced acreage from the Paradise Hills Project Area) will employ a higher density cluster housing concept for dwelling units, resulting in economically feasible living accommodations consistent with current market needs in the City. The University Hills Specific Plan concept will also provide a mix of housing 4 QAweh\laLadllnlud Commoal1Ig11100-063(De.40101FInd AWNmen1 ComarningDa.doptiuu Oom CEU(6•14-2010)01(647-9010).doe 71 2012-70 products and styles that will offer a range of housing choices intended to satisfy a variety of life stages and incomes more in line with young professor and faculty-staff needs. It will contribute to building a sense of community and place as a result of creating distinct pedestrian friendly neighborhoods and providing the necessary physical infrastructure conducive to a vibrant social community. The Development Plans in the University Hills Specific Plan are consistent with the University District Specific Plan,dated November 2005,and will promote design guidelines with, the CSUSB Campus character("Design Guidelines"). 1.3. The University Hills Specific Plan will propose setting aside a developed area—the Faculty/Staff Housing Parcel-to be donated by separate agreement to The Foundation for California State University San Bernardino ("Foundation") for construction by the Foundation of new Faculty/Staff Housing to meet the expanding CSUSB Campus needs,making the Campus more conducive to attracting teaching and research personnel. 1.4. The University Hills Specific Plan will result in an improvement of current vehicular access points for better traffic circulation and enhanced emergency access by various fire and other emergency agencies to the CSUSB Campus,the University Hills Project Area and the Education and Research Parcel. The proposed traffic circulation elements and access points will integrate the CSUSB Master Plan access points and bike path and trail connectivity. They will also provide for an enhanced future safety for the CSUSB Campus by the implementation of Hillside Fire Protection Standards and the use of trails at the development edges to act as fuel modification or fire protection zones. When donated to the Trustees,the Education and Research Parcel,enhanced by the proposed improvements within the University Hills Specific Plan area, will enhance the synergy with CSUSB by allowing for learning opportunities for various departments and by promoting interdisciplinary CSUSB Campus programs. Finally,the improved traffic circulation,together with the installation by Fontana 111 of additional utility services and hookup adjacent to the CSUSB Campus, will result in greatly enhancing the ability of the CSUSB Campus to grow to meet the expanding needs and goals of that campus. 5 Q:\wchUn4adUelend Commwude01144003 Oka Aimtnelnl Awe=ani Conou ie`Dwelopme t tram CSU(6.143010)01(6.17.2010).d00 72 2012-70 1.5. All provisions in this University Hills Agreement regarding size,quantity, location and functionality are based on the design of, and the information in, the Fontana 111 proposals for modifications to the Paradise Hills Specific Plan which will become the University Hills Specific Plan. If governmental approvals result in substantial modifications to the University Hills Specific Plan as proposed by Fontana 111, it should be expected that those modifications will have an impact on related assurances herein. 2. Project/Campus Improvements. In connection with the proposed University Hills Specific Plan,certain improvements have been identified which,if approved and developed,will benefit both the University Hills Project and the CSUSB Campus. These improvements are referred to sometimes herein collectively as the "Project/Campus Improvements." Some of the Project/Campus Improvements have been earlier identified in this University Hills Agreement, including the proposed Education and Research Parcel and the proposed Faculty/Staff Housing Site. Other Project/Campus Improvements will include the"points of access"(more particularly identified below), certain signalized street intersections, and improved and extended streets, slopes and retaining walls,the latter group of which will significantly improve traffic circulation. The following subsections identify the Project/Campus Improvements in more detail. 2.1. Development of Points of Access to Project Area. Fontana 111 and CSUSB acknowledge that there are two points of street and utility access to the Project Area: the fag point of access involves the extension of Campus Parkway along the northeasterly property line of the CSUSB Campus, and the second point of access involves the extension of Little Mountain Drive north of Northpark Boulevard across the southeasterly corner of the CSUSB Campus. These two points of access are referred to herein as the"Points of Access"and are intended to be designed and constructed as to right of way only,and in the same scope as the current Campus Parkway and Little Mountain Drive rights of way. Exhibit"E"depicts the right of way and slope easement at the intersection of Campus Parkway Extension and Northpark Boulevard and the Campus Parkway Extension. Exhibit"C" depicts theT-intersection of Little 6 Q:1wolMiand 1nWd Callow MICOU100-001(Div Asl,lpiin,l AyeMasM COMMIT*)NveIopM"t from CSU(6.14.1010)01(6.174010).dnc 73 2012-70 Mountain Drive,East Campus Circle,and Little Mountain Drive Extension. Exhibit"D"depicts the Grading and Slope Easement over Badger Hill at Little Mountain Drive and the Little Mountain Drive Extension. 2.2. Signalized Street Intersections. Fontana 111 and CSUSB acknowledge that in developing the Points of Access,the signalization of the following two street intersections will need to be constructed, including traffic signalization, for purposes of proper vehicular movement and traffic safety: (1)the intersection of Campus Parkway and Northpark Boulevard; and(2)the intersection of the northerly extension of Little Mountain Drive to East Campus and the University Hills access road (collectively,the"Signalized Intersections"and individually, a "Signalized Intersection"). As confirmed by a letter dated May 29, 2008, written by City Manager Fred Wilson to Dr. Al Karnig, President of CSUSB, the City has placed both of the Signalized Intersections on the City's Capital Improvement Program("CIF"), and those traffic signals will be installed and operational in a sequence and manner as determined by the City. The location,design and construction of such improvements,and any acquired grading easement and retaining wall,as well as the location, design and construction of the other areas requiring grading easements and,potentially,retaining walls,are all as depicted in Exhibits"D,""E,""0" and"H"hereto,and in the proposed University Hills Specific Plan,as might be modified by the Approved University Hills Specific Plan. 2.3. Slopes and/gr Retaining Wells Regarding the Points of Access. I?ontana 111 and CSUSB acknowledge that in developing the Points of Access, certain slopes and/or retaining walls will need to be constructed at Fontana 111's sole cost,and that such slopes and/or retaining walls will have some impact to property adjacent to CSUSB Campus property. It is the understanding of the Parties that the fence shown on Exhibit"E"adjoining the Facilities yani is on the CSUSB property line. Fontana 111 agrees that the road improvements, as shown in Exhibit"E",will not go beyond or encroach on that property line and if it is later determined that the fence requires movement to the property line,Fontana 111 will be permitted to move it to the property line at its expense. Fontana 111 further agrees that all drainage will be designed so that 7 te.eu$MMudinfconunud h ilo.col(Ow Awn')tFIwI Arroanem CoiwWng 110.ebpm'nc ben CN 46-14 4610)01(6-11-2010).000 74 2012-70 no runoff will be directed onto the existing developed Facilities yard or the (.'° USB campus. the slope and retaining wall locations are dcpicicd generally in l'.xhibit "F and in the proposed University Hills Specific Plan where details of the locations and designs are set forth. The final locations and designs will be as set forth in the Approved University 1lilts Specific Plan and approved final engineering plans as agreed to by the parties. .�I. L'.fisements for Public Kights ofW Way at Points cif AcceSS_and_l:;x gesions. 'Me Parties acknowledge that,as referenced herein and in the proposed University Hills Specific Plan, the Points of Access and related road extensions might require, in connection with final engineering, the dedication of easements to the City nod the City's acceptance thereof. Those easement dedications might be facilitated as part of any final subdivision map being recorded for all or a portion of the Project, but might also be facilitated by separate dedication agreements with the City. The Parties acknowledge that their cooperation with each other and the City concerning these easements for rights of way will be critical to the success of the Project and must be timely accomplishedd in order to support the Project schedule. Those Points of Access, slope areas,retaining areas and street extensions are generally identified in Exhibit"A"and more specifically identified in Exhibits"C" "I-1","l?"and"(I". • 2.5. f_onsmictisn.oi 'Dims of Access. The locations of the Points of Access will be established during the Project approval process, pursuant to Fontana 1 11's engineering. After the Project Approval, and in accordance with the terms of such Project Approval, Fontana I11 shall be solely in charge (unless any one or more of them is constructed by the City) of modification to the locations, engineering and construction of the Points of Access, at its sole, •{'liL 1 oulnriedior1 cost, with the only exception being the payment by €5tiSft of its fair share of traffic.or other <i.) impact fees to the City in connection with the Faculty/Staff Housing Parcel. Once constructed, Fontana I I 1 shall be released from further responsibility and liability regarding the Points of Access. 8 lld,X3 f1.ir.. ■11 Muir•yelr:+,':J l.,+rscr..lnAllafl'.,“,..1 if.n.r.S1'(f•.I',,'1 75 2012-70 2.6. Map of Utilities and Stub-outs for CSUSB. Fontana 111 shall provide CSUSB, for its review and immediate (not longer than ten [10] days) approval, with a map identifying the location of all utility systems located within or adjacent to the Points of Access. During construction of the Point of Access involving the extension of Campus Parkway along the northeasterly property line of the CSUSB Campus,Fontana 111. shall provide, at no cost to CSUSB, available utility stub-out connections from Campus Parkway and curb-cuts for future street intersections with Campus Parkway, at two (2) locations along Campus Parkway to be identified by CSUSB,as conceptually depicted in Exhibit"G." 2.7. Right of Way Easement from San B_ernard't o County_Flood Control Agency. As depicted in Exhibit I)", the University Hills Specific Plan includes a proposed right-of-way easement over a portion of land adjoining the Fontana 111 and CSUSB Properties and controlled by the San Bernardino County Flood Control District. This right-of-way easement in favor of the Project would permit pedestrian and vehicular access to and from the Project, as well as installation and maintenance of utilities. The Parties agree to cooperate in efforts to obtain this necessary right-of-way casement at the earliest possible time in order to facilitate final design of the Project, approval of the University Hills Specific Plan, and commencement of development. 3. Master Declaration; Master Association, A Master Association Declaration of Covenants, Conditions,Restrictions and Easements("Master Declaration")will be recorded on the entire University Hills Project Area,including the Faculty/Staff Housing Parcel. That Master Declaration for the University Hills Specific Plan will contain construction guidelines("Design Guidelines") and provisions for a Design Review Committee. Apart from the development improvements for which Fontana 111 is responsible herein,the Foundation will be responsible for all construction on the Faculty/Staff Housing Parcel and compliance with the Design Guidelines and obtaining approval of the Design Review Committee. The Master Association shall have the duty and power to assess all dwellings in the University Hills Project, including the Faculty/Staff Housing Site, for maintenance of certain common areas, including the 9 OftwensionanIand Communi0M110P6D7(Ow Aynt.>Wbut Aerogram Com,m4g D•c,lopmem/tomCSU(6-10.1010)01(6.17.101014oc 76 2012-70 community center. The community center shall be available for use by all residents of the Faculty/Staff Housing. Some of the other residential communities within the University Hills Project will be part of additional sub-associations which will govern and maintain those areas. 4. Project Approval. As used in this University Hills Agreement,Project Approval means that all government permits and approvals,excluding building permits,necessary for the construction of the Project,including the Faculty/Staff Housing,have been issued and are legally effective insofar as the time for legal challenge,initiative or referendum has expired,or if a legal challenge, initiative or referendum is timely made, then such is brought to a successful conclusion confirming the legal effectiveness of the Project Approval. 5. Mutual Support of Project and Faculty/S H usin . The Parties recognize their mutual support of each other is vital in order to obtain the Project Approval. A full and complete copy of the Fontana 111's proposed land plan portion of the Proposed University Hills Specific Plan is set forth in Exhibit "B" to this University Hills Agreement which the Parties agree is satisfactory. CSUSB and Fontana 111 agree not to criticize or object to the Project or the Faculty/Staff Housing. If CSUSB or Fontana ill has questions or concerns regarding the processing by the City of San Bernardino or other governmental agencies of any of the various Project Approvals,each agrees to notify the other first privately and to meet and confer over the questions and concerns,prior to involving any third party including the Mayor's Office of the City of San Bernardino or any other governmental agency. The provision concerning mutual support does not apply to CSUSB faculty,staff and students objecting on their own behalf 6. Disapproval or Substantive Modifications of Amendments. The Parties further acknowledge that the understandings memorialized. in this University Hills Agreement are contingent upon the Project being approved, as proposed, by the City of San Bernardino and other applicable governmental agencies. If the University Hills Specific Plan is not approved,or is approved with substantive changes that materially affect the understandings contained in this University Hills Agreement,then either party may provide notice to the other to meet and confer 10 Q:\wdadandlnwod C, mmGlptlIp0.00](Div A{nti.)VIm1 Moroni Cottoning DivIlopmse,Dom CSU(4.44010)01(6174014d%6 77 2012-70 to resolve the consequences of such action upon the understandings reached in this University Hills Agreement. If such meet and confer fails to resolve the issues, then mediation involving the Mayor's office and both parties shall occur in a timely manner. If that does not resolve the issues, then either party may proceed to commence termination of this University Hills Agreement upon the providing of 30 days advance,written notice. 7. The Parties Duties Upon Project Approval.. If the proposed University Hills Specific Plan is approved, then each party shall cooperate with the other to implement the University Hills Project and all of the University Hills Project approval conditions and mitigation measures, including without limitation executing subsequent documents, agreements and instruments,as may be necessary by the City of San Bernardino and other government agencies with jurisdiction over the Project. CSUSB and Fontana I11 acknowledge their respective obligations to bind their properties with covenants, conditions and restrictions which establish, among other items, a homeowners' association and shared rights and responsibilities,including assessment obligations,to the master clubhouse and recreation facility to be constructed as part of the Project. In addition, the Foundation and Fontana 111 acknowledge their respective obligations to participate in any Landscape and Lighting Maintenance Assessment District to be established by the City which provides for the shared financing of infrastructure necessary for the Project. 8. Not Trans€erable. This University Hills Agreement is applicable only to the University Hills Specific Plan Project Area,and it is not transferable to any other property. 9. Assignment. Trustees shall not have the right to assign its position in this University Hills Agreement,or any part hereof, without the express written consent of Fontana l 11,which consent may be withheld for any reason or no reason. The Foundation may assign its position in.this University Hills Agreement to any entity which becomes a successor in interest to the Foundation's position in the Fontana 1.11 Property but then,only if such assignee assumes all of Foundation's obligations herein. Subsequent to the initial conveyance by Fontana 111 to 11 ClaweAtnIsedlnIard CammwnhtaU:OO O3(UevAg o011ua 1AB*amrlCun08m[,gDev.bpmentfOmCSU(6.14-V111001 7-20101.doe 78 2012-70 Foundation and Trustees, it is understood that the Trustees or the Foundation might thereafter deem it appropriate to convey the Research and Education Parcel or the Faculty/Staff Housing Parcel to another entity for management purposes. Fontana 111 may assign its position in this University Hills Agreement to any entity which becomes a successor in interest to Fontana 111's position in the Fontana 111 Property but then,only if such assignee assumes all of Fontana 111's obligations herein. 10. Notices. Any notice or correspondence delivered pursuant to this University Hills Agreement shall be given by depositing the same in any United States Post Office, postage prepaid,and addressed to: To CSUSB: California State University San Bernardino 5500 University Parkway San Bernardino,California 92407-2393 Attention:Robert Gardner With Copy to: California State University San Bernardino Office of the Chancellor 401 Golden Shore,4th Floor Long Beach,California 90802 Attention: Elvyra San Juan To Foundation: The Foundation for California State University San Bernardino 5500 University Parkway San Bernardino,California 92407-2393 Attention:Deborah Burns To Fontana 111: Fontana Corners Iii,L.P. c/o inland Communities Corporation 7536 Loiina Lane Los Angeles,California 90046 Attention:Jim A.Ahmad 12 Q:lwddto}so thb dCommonllLaY100.00)(O v edot,)1FInMt Aytse.nsm Concerning DeoskpnKnl Rom L511(6444010)Ot(6,1 7-10 10)40 0 79 2012-70 With,Copy to: Aradi,Inc. 2001 Pennsylvania Avenue,NW Suite 1150 Washington,DC 20006 Attention: Amer Hammour With Copy to: William C.Holzwarth,Esq. Law Office of William C.Holzwarth,APC 2155 Chicago Avenue,Suite 304 Riverside,California 92507 Phone: (951)300-2000 11. Automatic Expiration. This University Hills Agreement shall automatically expire, and shall become null and void,five (5) years from the date first written above,unless extended by mutual further agreement of the Parties. 12. Covenant of Good Faith and Fair Dealing. The Parties acknowledge their duty to act with each other in all respects concerning this University Hills Agreement under the covenant of good faith and fair dealing. IN WITNESS WHEREOF,the parties have executed this AGREEMENT to be effective upon the date first written above. QA wamma.dunWacoumenldkal00-o07(fiwntm�.TdIt Agaaxent Camping oevdopmemFrom(au(6•M-7010)01(6.17401o).doe 80 2012-70 CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ‘6411- Albert .Karnig,Pres dent 71119 Date I APPROVED: TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY • Elvyral.Say hi, Assistant Vice Cl ancelloi Capital Planning,Design&Construction CI t 0 Date l'ILE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO o...11,1 F.? ( Deborah Burns,Executive Director Date • 1 0 t4.nIhJ puty Aer:YJMIt WI 1.0)01 WI 81 2012-70 FONTANA CORNERS 111, LP.,a California limited partnership By: ARAD1,LTD.,a Nevada limited partnership, its General Partner By: ARAD1,1NC.,a Nevada ct)rporation,its General Partner By: /sutler liammout,President Date 2 , iIU I.:Cb(L) Ape:01..11 Apieeenerd tynnlas1),tbrienug Nor.(MI 0,1‘401D1 fil 41,I/MAO)do, 82 2012-70 EXIUUI`1'"A" AERIAL VIEW OF CSUSII CAMPUS,Ii'ONTANA 111 PROPERTY,AND SURROUNDING LAND USES WITH NOTATH)N OF APPROXIMATE LOCATION OF CERTAIN PROJECT IMPROVEMENTS • 83 2012-70 . . •A:'.. . ... k..,, . 'i..' • • • . .- ...._,..... 1 .4./.3.411 rd;.,',.:.1 ,...i , . • , ., . . ... • ;.. A.,..IA, ( , .. . . ,.. .. . . ' .. . .. ... . , . , . . . • . • . --••• „..„... .. . . - - .....„_. ,:. r'' ."\ - '.:::.-,?•."'..- ';‘7,' ',.-. I.., ,'_ .',.'•... igi.i..15*.!. [1-) • ,..; ' I' '.4..-.'i'W'''.■.=:...........:--,-.4., ':'•'.7'..'.•.'4. 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PREPARED FOT• 1I • INLAND COMMUNITIES e :; CORPORATION �•:__ 1o3�a Honig:� il t Engineering som 440 • Planning nirvana CA 91603 1801 Avenue of the Slors Surveying Td:(981))358-1433 'SA! 1208 I ^�,�..�.� Construction Suvlcea Fow(A61)388-1434 Los Angeles, CA 30067 I S.! awxc _ u — . 88 . 2012-70 EXHIBIT"D" GRADING EASEMENT OVER LITTLE BADGER MOUNTAIN 89 2012-70 = - -.,`. . ,` -':.............. ./ mil /I/1 ''"I jiI\�' t'i / / !r li . -'•'�,.\;•���� _..-,..'`= ; �\\'•\'--;'-- �_._-. •i /07 /•f'''1,f/A /('''''': f /:'�� ./..''...s....'::.:.:i'S:::::;.\1,:::"..'.. ..\\\\N‘.:::::::.::::::::::::::..:■:.:::::::....</4.1,41.74 I I/ .1:' i'': r:'''''''; ' i piel • \\ `' v 11� 0"' , - -ti• :z,=::_; --_-----• _ ;11,i k%\ 4 ,' ),)) . 7: . 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''''' A ` t /` 07 ' �-RIGHT OF WAYAND , "--P �:_ i SLOPE EASEMENT II$- / / fitt a r, • r a �" 1 I CSUSB CAMPUS ' '� '—[-1+ e � e ,.� :•r ,._:' -, ♦ 1 ; I ��'\ i \i a \ \ 1 I )\\ 11 1 \ i\ 9 • lJ\l '0 0 I I yam .• i . x 1 1. 1 CITY OF SAN N BERNARDINO - UNIVERSITY HILLS i RIGHT OF WAY AND SLOPE EASEMENT AT THE INTERSECTION OF CAMPUS PARKWAY EXTENSION AND NORTHPARK BLVD EXHIBIT V OCTOBER 20, 2007 • ' • PREPARED 8K PREPARED FOR: ti INt AND.C,OMM1 l'1S ! 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I 1-- • ' ; -y;', : , •5•-• ..• t' �� �� ,f:1! . 1E1 ' i 1,2007 I It I. 0 5;17.-.71:1):: ''1.-'1r::17tomie.'''..:1";:. 4;II.,10;4\;.41',1:i .,::i..j,.. .. 5 :VIII` -J.-19. , K. 4 1`.::‘'- . '•11:40,"V At13 '. , .ii IA. ;•1 -0 ' .';'', '. art=s ' 93 2012-70 EXHIBIT"F" FACULTY HOUSING SITE INCLUDING ENTRANCE INTO THE PARCEL 1213411-22201 94 2012-70 —-----‘!•*:■•••• -4PAIP' If.iffirtritfe, ft r .� � ee`I � . t i %•• .-.� , • - + -*-.1// i , �� `i . • , / / /7./ ---,'N.--.,., A.art,..3,& \s. 4i. •:......, -,),:„.- ...... ..,..z....: :.::...„.. ..:::,.,.,-- ----,.... ,- / /' / / • 4►`� s., r•i / ., $ 4 : I j_7 . - , t4,\ O/ %�,:., ._._� �� jT v 1 ,OI rte : ,-. ;� / „,,, . , , ., ., • r•-• ,...ity -- ".•c....;*(w,4 ,, - ( ( _ fr n , / / .,..'.. iss, # y 4 - s r 4„0 + "- , 1� tl•%,.._-.J ,• r .... .. t. . ik ,.. ,\ , \ k. \ -.....IN.,.,. l\ i .• • .. 1) ) , , \ . \ - } , � '� `' .) -. .� , . i CITY OF SAN BERNARDINO- UNIVERSITY HILLS I FACULTY HOUSING PARCEL INCLUDING . N ENTRANCE INTO THE PARCEL i EXHIBIT eP OCTOBER 2D, 2007 PREPARED Br PREPARED FOR. '/+ i COMM� Engineering 10370 Hemel s1 c• A' N Suit planning s 200 ft g Fereekle CA 92503 1891 Avenue of the Slurs Surveying L.rgsii)350-1433 Suite 1205 a it mr• Fox la5i)3SB-1d3d S Conalruclbn Services Los Angeles, CA 90067 i mrrxrsrrrtitoo 95 2012-70 EXHIBIT"G" 2 UNIVERSITY STUB-OUT ACCESS POINTS INTO CAMPUS PARKWAY EXTENSION 96 2012-70 r- —1 - . . „... „...- ,-,.....- ...•„... m .•„.„ „. „. „... ... .- ,...• .-- . .• . - ,__ . - -.--;:-..P.VIERPMRINNO,NNIT ... ..- • .--- . ,••••-(.... .,._...• ,„•... - . , • - - ,- ..". .....-....--- ,_ . - ......--_____-- ... .._.......0'-- ,.:---.'.:......_... --- .,..., /•:-::w,• .- • .... , -,.: .• .eventia RAY ;;;;;;;;■,=° .. ..- , .NJ • t • , :40:: :301°...., .: - • ...',„.... - ,.._, - (,..,:• ..... ..„--...._ .. _ .-- _, . \......:::..,........ ,2 . -- . ... - ..- -----0-/-..\ „----- - • —) OMB CAMPUS ,,.. 1--.... r-------• k_.1 r . /v • „...A • I ,,--, , : • ; ,-,, ...... ....... ....... i COUNIY i ,.. / • . _. .... ._. ....._. .....,....,...:....... ... .._._.,. .......... •-•• ...,-, • ,.........___........_, -..- .. ..........._-_____-- .......... ... _ _. ---------........-•_...:-....,,,.... sagno-40,::::..-_•....._ -, , -----„._ . ., •______ . -, :... - 0, . 41, ' - - •••- .. .....'`.-.... ....,.. . . . -.................ei _.„ ; '3 . . -, ..'”" ..—'..M... 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CA 90087 it came.fout',nu Akira' ."'"—""'"""'"""—"-""'"......'"1:1=a11111.11.111===111111.■=6, L . ...J 97 2012-70 EXHIBIT"H" LOCATION OF THE TRAILS ACCESS FROM THE UNIVERSITY ON THE MAIN PROJECT TRAILS ALONG CAMPUS PARKWAY 98 2012-70 Vim{6'mob ,� '°$` �r �/ r , !r 1 + r- ` \ .1_■ ti r r 1 1 1`'`--� ;, 1 ................,..............„,,.... _........ .,...f_ :1-......1---.,_,,..............................J1.121 i ras3 , 1I/' 'j \II I- lif II j -... ''''''''■. 1111411Olgt lit5.3.5, ilkf --... --, Ilt //' , ..... "... ..,11470 i' , y► .. a4 i ,':. SAN INO COUNTY FLOOD ON=DISTRICT 8 PROPERTY , A ,/ , ' ' \ \ .ice<* , ' \ , `'�`�.- 4_ �e •SAN HEt RIXNO CNO X !s ---- _ "- _ PROP COAiTiiOt DfS7tilCT\ y '•�-- TRAM ACCESS er - -� t5fl5 15946 1�\ OUSE CAMPUS � '� CITY OF SAN BERNARDINO UNIVERSITY HILLS ..` TRAIL ACCESS FROM THE UNIVERSITY CAMPUS ALONG CAMPUS PARKWAY EXHIBIT 1 OT E. 2007 1 i 'PREPARED FQR: PREPARED BY.- s MILANO it '.....l. M�v 1 Engineering 10370 Hemel at ��+\ Planning 'tea t 1801 Avenue el the Stars phew s,CA 92003 Survepng Te5(951)350-1433 Suite 1205 "I' Caestwcllon Services Foc(e91)35e-i4.14 — Los moot CA 90067 OrMar arMt N reef mar .w� ar 99 2012-70 AGREEMENT TO DONATE LAND BY AND BETWEEN FONTANA CORNERS 111, L.P. AND TRUSTEES OF CALIFORNIA STATE UNIVERSITY AND THE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO Dated: June ,2010 100 2012-70 TABLE OF CONTENTS RECITALS 1 3 1. Donation of Donation Parcels 3 1.1. Offer to Donate 3 1.2. Acceptance of Donation 3 1.3. Determination of Value. 4 2. Conditions to Donation 2.1. Conditions of Fontana 111 Precedent to Causing the Donation 4 4 2.2 Conditions of CSUSB to Acceptance of the Donation 6 2.3. Title Policies 7 2.4. Completion of Conditions 7 7 3. CSUSB's Inspection of Donation Parcels for Future Use 8 8 3.1. CSUSB's Access to the Donation Parcels 8 3.2. Indemnification of Fontana 111 9 4. Title 9 4.1, Review of Project Documents 9 4.2. Survey 9 5. Close of Escrow 9 5.1. Escrow Agent 5.2. Title 9 19 5.3. . Fontana ill's Deposits into Escrow 10 5.4. CSUSB's Deposits into Escrow 10 5.5. Closing Date 1 5.6. Escrow Closing 0 Statement 10 5.7. Closing Procedure . 11 5.8. Proration 12 5.9. Possession . 12 6. Fontana Ill's Representations and Warranties 12 , 6.1. Hazardous Substances 13 6.2. Compliance with Law 13 6.3. Leases 13 6.4. Litigation and Investigations 13 6.5, Access to the Property 13 6.6. Disclosure 13 6.7. Subsequent Information 14 6.8. Definition of Hazardous Substances 14 7. Authority of Parties 14 7.1.. Authority for Fontana 111 7.2. Authority, 14 for CSUSB 14 8. Brokers 9. Notices 15 15 10. Entire Agreement 16 11. Severability 16 12. Assignment 17 13. Waivers i MectAlnlimatnta d CammumiloUi00-001 Lnd Uon1F1n1t AI:memmnl to p0ey,1,Lad from CS!)(6-147010)01(6.17.4010)doc 101 2012-70 • 14. Construction 17 1 7 15, Merger 16. Counterparts 18 1 8 17. No Obligations to Third Parties 18 18. Amendment to this Agreement 18 19. Time of the Essence 18 20. Successors 21. Governing Law and Venue 18 18 22. Cooperationl.of Parties 19 23. Cooperation Regarding Qualification of Donations 19 24. Incorporation of Recitals and Exhibits EXHIBITS EXHIBIT"A"MAP: FONTANA 111 PROPERTY AND CSUSB CAMPUS EXHIBIT"B"UNIVERSITY HILLS SPECIFIC PLAN: EDUCATION AND RESEARCH PARCEL EXHIBIT"C"UNIVERSITY HILLS SPECIFIC PLAN: FACULTY/STAFF HOUSING PARCEL EXHIBIT"D"FIDELITY'S GENERAL ESCROW INSTRUCTIONS EXHIBIT"E"FACULTY/STAFF HOUSING—GRANT DEED EXHIBIT"F"EDUCATION AND RESEARCH PARCEL-GRANT DEED • ii Q:twahllNendVnleet CommweideA1100.00e End DOMINI hi eemtte to Donele Lend 0100 C5UI(6.147110)01(417.0010)dot 102 2012-70 AGREEMENT TO DONATE LAND, THIS AGREEMENT TO DONATE LAND("Agreement") is made as of this day of June 2010("Effective Date")by and between FONTANA CORNERS 111,L.P.,a California limited , partnership ("Fontana 111"), and the TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY ("Trustees") and THE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ("Foundation"). Fontana • 111,Trustees and the Foundation are each sometimes referred to herein separately as a "Party"and jointly as the"Parties" RECITALS A. Fontana 111 is the developer and uncontested owner the fee title interest in certain real property comprising 404 acres ("Fontana 111 Property") located generally northerly of, and adjacent to, the northerly property owned by Trustees and utilized For Trustees' California State University San Bernardino ("CSUSB") main university campus ("CSUSB Campus"). Both the Fontana I 1 1 Property and the CSUSB Campus are located in the City of San Bernardino("City"),County of San Bernardino("County"), California. The Fontana I11 Property and the CSUSB Campus are depicted in Exhibit "A"for general reference. The Fontana 111 Property was previously known as"Paradise Hills" and is the subject of the City adopted Paradise Hills Specific Plan SP 90.03, General Plan Amendment 91-07, Development Agreement 90-03, and a certified Environmental Impact Report (collectively the "Paradise Hills Specific Nan"). The Paradise Hills Specific Plan provided certain land use entitlements and vested rights ("Entitlements") to develop 504 residential units on approximately 229 acres of the Fontana 111 Property. B. CSUSB has expressed to Fontana 111 certain needs of the CSUSB . Campus,those.important.to.facilitate the further growth of that..campus,both in.shear size and also in its ability to better serve its students and faculty, and also to better serve the 1 • Q:\wcM1 n11"QUnLndCommueRlad100.000 Lad ARM nal Arcwn",% Do»le Lard from CSU(6-14.2010)01(6-172010).doo 103 2012-70 Public, The CSUSB Campus needs primarily comprise the following (i) land in its natural state, which can be used for biological, geological and general environmental research and studies,and(ii)land for affordable faculty and staff housing. C. In response to those needs,Fontana 111 desires to make a donative gift to Trustees and the Foundation and accordingly, Fontana 111 will make a new application to the City for approval of certain amendments to the Paradise Hills Specific Plan. The proposed amendments to the Paradise Hills Specific Plan will be made under the amended name "University Hills Specific Plan," and all references herein to the "Project,"as modified,shall be by reference to that name. The proposed amendments to the Paradise Hills Specific Plan shall include among other things the following: 1. Amendments to the paradise Hills Specific Plan that will involve consolidating the residential development onto an area of laud located on the southerly portion of the Fontana 111 Property resulting in a reduction of the developable area on the Property from approximately 229 acres to 184 acres (the "University Hills Specific Plan.Area"),leaving a balance of approximately 220 acres of vacant land generally north of the southern branch of the San Andreas Fault line ("Education and Research Parcel") also shown in Exhibit"B"for future donation to Trustees. The donation of the Education and Research Parcel will result in substantial educational and financial benefits to CSUSB,the Public,and the surrounding neighborhoods. Those benefits will include the addition of substantial research and teaching opportunities for the University, as well as the creation of synergy within CSUSB by permitting learning opportunities for various departments, promoting interdisciplinary University programs, and the ability to obtain State grants. The Public will benefit through the ability to participate in environmental education opportunities,and through the enhancement of the quality of life for the Public in general and the local residents in particular. 2. Amendments to the Paradise Hills Specific Plan that will help the CSUSB Campus realize its goal for affordable faculty and staff housing,by allocating a graded area within the Project specifically set aside for future donation to, and development .by..the Foundation.for that purpose...("FacultyIStaff Hqu ng Parcel") as . shown in Exhibit"C". The donation of the Faculty/Staff Housing Parcel will result in an 2 Q.0 410414101ad Comm wrdaU100 401 Lad Doe fbrl/Wound to Wax LW8 anC5U(61a1010)01(6.11.2010).doe • 104 2012-70 improved housing site available for future affordable faculty, staff and affiliated persons housing units within close proximity to the CSUSB Campus. The term "affiliated persons" means and refers to persons who are affiliated in some official capacity with CSUSB operations,and not to the general public. D. The Education and Research Parcel and the Faculty/Staff Housing Parcel are sometimes referred to herein jointly as the"Donation Parcels." E. CSUSB and the Foundation acknowledge the potential benefits to it and to the Public,and desires to encourage Fontana 111 in Fontana 111's proposed amendments to the amendments to the Paradise Hills Specific Plan and the development of the proposed University Hills Specific Plan Area portion of the Fontana 111 Property to facilitate the donation of the Donation Parcels and the resulting benefits. NOW,THEREFORE,based on the above Recitals,and the covenants,terms and conditions set out below,the Parties hereby agree as follows: 1. ponatlon of Donation Parcels. 1.1. Offer to Donate. Fontana 111 hereby offers to cause the donation to Trustees and the Foundation of the Donation Parcels at such time, and upon the conditions,as set forth herein. 1.2. ,Accentance of Donation. Trustees and the Foundation hereby agree to accept the donation and conveyance of the Donation Parcels at such time, and upon the conditions, as set forth herein. The Faculty/Staff Housing Parcel shall he conveyed to the Foundation California State University San Bernardino and the Education and Research Parcel shall be conveyed to the Trustees. 1.3. Determination of Value., The Parties agree that it is Fontana 111's intent to make a gift comprising the Donation Parcels to Trustees and the Foundation, and intends to report the transaction when consummated as a charitable contribution for income tax purposes. Accordingly, Fontana 111 intends to make .... ..appropriate application to the Internal Revenue Service("IRS")for tax benefits resulting from the Donations. Fontana 111 shall obtain a "Qualified Appraisal" of each of the 3 QA...04u5134w1Co m,niti04100-001LodMarini Astamletto Donate Land from CSU(6.14-1010)01(b17.7410)doa 105 2012-70 Donation Parcels, as defined in Section 170(#)(1 l)(B)(i) of the Internal Revenue Code ("IRC"),conducted by a"Qualified Appraiser"as defined in Section 170(f)(11XE)(ii)of the IRC,and shall be responsible for compliance with all laws and rules of the Internal Revenue Service relating to claiming the contribution. The Qualified Appraisals shall determine the"Appraised Values" Trustees and the Foundation make no representation to Fontana 111 as to the tax consequences of such an election. Fontana 111 shall obtain independent tax counsel and will be solely responsible for compliance with the gift value substantiation requirements of the IRC and California Franchise Tax Board. 2. Conditions to pollution. 2.1. Conditions of Fontana 111 Precedent to Causing the Donation. Fontana 111's obligation to perform under this Agreement is subject to the satisfaction (or waiver by Fontana 111) of each and all of the following conditions precedent (Fontana 111 shall use its commercially best efforts, with the active support of Trustees and the Foundation,to attain each and all of these,but makes no assurance of its success in that regard): a. Fontana 111 shall have obtained full and final approval by the City and all jurisdictional and other controlling governmental agencies (collectively, the "Governmental Entitlement Approvals") for the proposed 980 dwelling University Hills Specific Plan, and the time periods for all legal challenges to such Governmental Entitlement Approvals approvals shall have expired and no legal action shall be pending; b. There shall be no moratoria enacted effecting the University Hills Specific Plan Area; c. Fontana 111 shall have recorded a final map for the University Hills Specific Plan Area which map includes,either as an identified lot or parcel, as a"not a part"parcel,the Education and Research Parcel,and the City approved University Hills Specific Plan shall show the Faculty/Staff Housing Parcel as a separate planning area and the final parcel map shall show it as a parcel thereon; this condition of recorded map is intended to comply with the provisions of . ..... . ..California...Govemment•Codo Section.66499.30(e),.and. s not waivable by either Party; 4 Q:\mMintaadlldand Camewr&b.M 100 1.nd Mad Iod Swam*to Dons a GM Own CSU(644.2010)01(6-17.2010).doo 106 2012-70 d. Fontana 111 shall have received from the City a mass grading permit and the mass grading of the University Hills Specific Plan Area shall have been completed; e. The backbone infrastructure for the University Hills Project shall have been installed pursuant to the approved University Hills Specific Plan, including paved public roads and utilities; f. Fontana 111 will include a restriction in the deed to the Education and Research Parcel that the property will remain an open space parcel. Additionally the deed will reserve to the Public certain rights, including the continued use of the existing hails within the Education and Research Parcel,and reserve to the City, County and State and Federal Forestry Services the right to enter upon any portion of the Education and Research Parcel to address emergencies,including fires; g. The name of the Education and Research Parcel shall be "The Akkad Reserve," which name shall be used openly by CSUSB without any substitute or alternative name being used in all literature, signage, communications and programs instituted by CSUSB for the University and for the Public; the name shall not be changed, altered or disregarded by CSUSB in any way without the specific written consent of Fontana 111,which consent may be withheld in its sole discretion, as the name required in this Subsection g. is en important part of the consideration to Fontana 111 for the donation;and h. Trustees and the Foundation, through their proper authority structures,shall have approved the form and content of this Agreement,and shall have duly executed this Agreement i. The Faculty/Staff Housing Parcel shall have been approved by the City, as part of the City-adopted University Hills Specific Plan, being shown as PA-16 thereon, and such Parcel being specifically approved by the City for a maximum of four(4)acres in size and being zoned for not more than sixty (60) dwelling units. The Faculty/Staff Housing Parcel will be mass graded and will include .utilities stubbed. out .at.the site's adjoining right-of-way for Mire 5 Q thek\thiiU ti I d Coemmni11eA410OM0 1.41d DonVi d Apemen(to Donate Lod glom CSU(0.I03O10)01(6.1740I0).dos 107 2012-70 connections. A point of entry will be provided from a public street up to the end of the curb returns. j. A Master Association Declaration of Covenants, Conditions, Restrictions and Easements ("Master Declaration") has been recorded on the entire University Hills Project Area, including the Faculty/Staff Housing Parcel. That Master Declaration for the University Hills Specific Plan will contain construction guidelines ("Design Guidelines") and provisions for a Design Review Committee. Apart from the development improvements for which Fontana 111 is responsible herein, the Foundation will be responsible for all construction on the Faculty/Staff Housing Parcel and compliance with the Design Guidelines and obtaining approval of the Design Review Committee. The Master Declaration or conveyancing deed will further provide that the Faculty/Staff Housing Parcel shall be reserved for housing for CSUSB faculty members, staff and affiliated persons until the end of build out of the multi-family portion of the University Hills development, or thirty (30) years from the date of this Agreement,whichever is sooner. The term"affiliated persons"means and refers to persons who are affiliated in some official capacity with CSUSB operations, and not to the general public. The Master Association shall have the duty and power to assess all dwellings in the University Hills Project, Including the Faculty/Staff Housing Parcel,for maintenance of certain common areas,including the community center. The community center shall be available for use by all residents of the Faculty/Staff Housing. Some of the other residential communities within the University Hills Project will be part of additional sub-associations which will govern and maintain those areas. k. The IRS has issued all requisite approvals confirming the qualification of the donation of the Donation Parcels at the Appraised Values. 2.2. Conditions of Trustees anoLtbe Foundation to A centance of the Donation. Trustees' and the Foundation's obligations to perform under this Agreement is subject to the satisfaction(or waiver by Trustees or the Foundation)of each and all of the following conditions within the Inspection Period: ZducatJon an Research Parcel. 6 Q:IwtAVnhnnandComw^111.000A041..4 Do, inJ Ay+nnarWDa ukl.+ndhemCSU(6.14-201501(6-17-2A10).dw 108 2012-70 a. There shall exist at the time of the conveyance of the Education and Research Parcel to the Trustees, an area,either on the southern border of the Education and Research Parcel, or on the northern border of the Plan Area, connected to a public street and improved for vehicle parking for a minimum of 6 vehicles,together with a facility for drinking water; b. Fidelity National Title Company ("Title Company") shall be prepared to issue to the State its ALTA Owner's Standard Coverage Policy of Title Insurance("Education and Research Parcel Title Policy") in the amount of the Appraised Value of that Donation Parcel,insuring title in the Trustees. c. The Education and Research Parcel description in the grant deed shall either(i) include features of the San Andreas Fault adequate for conducting seismic and geologic research,or(ii)include an easement and right of entry on to a portion of the Plan Area immediately adjoining the southerly boundary of the Education and Research Parcel, in the San Andreas Fault sufficient to conduct such studies;and Paculty/Staff Housing Parcel. a. The site shall be graded. b. The site shall have utilities stubbed out to the curb entrance. c. Title Company shall be prepared to issue to The Foundation its CLTA Owner's Standard Coverage Policy of Title Insurance ("Faculty/Staff Housing Parcel Title Policy") in. the amount of the Appraised Value of the Faculty/Staff Housing Parcel. 2.3. Title Policies. The Education and Research Title Policy and the Faculty/Staff Housing Parcel Title Policy are sometimes referred to herein jointly as the"Title Policies." 2.4. Completion of Conditions. Upon completion of the conditioned improvements and actions set forth in Sections 2.1 and 2.2 (the "Completion Date"), Fontana 111 will notify Trustees and the Foundation in writing ("Completion Notices") of such fact, and shall include with the Completion Notice with respect to each Donation Parcel: (i) the certification ("Engineer's Certification")by a civil engineer licensed by the State of California,certifying to 7 Q:1wom.b.hLJ..d e......mon00O01 Led Do(PIn IAge gn,etteDOduU IJmd bon CSU(6.1A8o10)Ol 46474010}doe 109 2012-70 the completion of the physical improvements and mapping, (ii) proforma title policies issued by the Title Company, signifying Title Company's'willingness to issue the Education and Research Title Policy and Faculty/Staff Housing Title Policy, and (iii) without warranty, copies of all reports, studies, plans, surveys, • specifications, and other documents pertaining to the physical, geological, or environmental condition of the Donation Parcels that are owned by or in the possession of Fontana 111 (collectively,"Project Documents"). 3. Trustees and the Foundsktiou's Inspection of Donation Parcels fur Future Use. 3.1. Trustees'and the Foundation's Access to the 1)1 Batten Parcels. Upon Fontana 111's issuance of the Completion Notices,and for the period to the Close of Escrow("Assess.Period"),Trustees, the Foundation and their authorized agents and consultants shall be permitted reasonable access to the Donation Parcels. Access shall be permitted during normal business hours upon at least three (3) business day's notice to Fontana I11,and shall be subject to the provisions set forth in Section 3.2. The right of access shall include the right to conduct normal noninvasive engineering analysis and environmental audits of the Donation Parcels,and upon specific authorization of Fontana 111, soils tests, all for the purpose of Trustees, the Foundation and its agents and consultants beginning to plan for its future use of the Donation Parcels. 3.2. Indemnification of Fontana 111. During the Access Period, Trustees and the Foundation shall indemnify and hold harmless Fontana 111,its officers, employees,agents,consultants,contractors,subcontractors and affiliates,and the Fontana 111 Property (collectively,the "Fontana 111 Indemnified Parties") from and against all losses, claims, damages, liabilities, charges, fees, fines, penalties, injuries, claims of personal injury or property damage, judgments, liens and expenses (collectively, "Claims"), including costs and attorney's fees incurred as a result of defending against and resolving such Claims resulting from, or arising out of, entry on to the Donation Parcels or any other part of the Fontana 111 Property by Trustees' or the Foundation's respective employees, officers, agents, consultants, contractors, subcontractors and affiliates or others acting on.behalf of, or are under the control.of Trustees or the Foundation(collectively, "CSUSB Indemnifying Parties"), except to the extent that any 8 0:1wdNMmdtioland Co,mwlilea100-004 I.M DO,*I M Arxmem to DONMN LSO ar a CSU(6144.01 O)01(6.17-2010)4OC 210 2012-70 such Claims arise solely out of the gross negligence or willful acts of Fontana 111 Indemnified Parties. Any entry onto any portion of the Fontana 111 Property,including the Donation Parcels by any of the Indemnifying Parties shall be at reasonable times after notice to Fontana 111 in accordance with Section 3.2, 4. it e. 4.1. *view of Proicct Documents. Pursuant to Section 2.4,Trustees and the Foundation will have received the Project Documents along with the Completion Notices,and may use those documents and information in further analysis of its proposed uses of the Donation Parcels. Fontana 111 agrees to reasonably cooperate,at no.further cost to Fontana 111, in assisting Trustees and the Foundation to obtain further information as reasonably required by Trustees and the Foundation for this analysis. To the extent the title information provided by Title Company reflects property taxes or assessments on the Donation Parcels,Escrow Agent shall prorate those to the Close of Escrow and Fontana 111 shall be responsible for the payment of that portion prorated up to the Closing Date. It shall be the sole responsibility of Trustees or the Foundation to petition the County (and other appropriate taxing authorities) for any potential tax relief from the portion prorated from after the Close of Escrow,but in the event that relief is not forthcoming,then to be responsible for the payment thereof. 4.2. Survey. Following the full execution of this Agreement by all parties,and in connection with its engineering of the Fontana 111 Property,Fontana 111 will cause to be completed surveys of the Donation Parcels, (if such is required in connection with the Qualified Appraisal) to be prepared by a registered surveyor or professional engineer("Surveys"). 5. Close of Escrow. 5.1. Escrow Agent. Fidelity National Title Company ("Escrow Agent")shall act as Escrow for this transaction. Escrow Agent's General Instructions are attached as Exhibit"D." 5.2. 316. Simultaneously with the Close of Escrow, Escrow Agent shall cause Title Company to issue the Title Policies in the amounts of the Appraised Values of the Donation.Parcels,as determined.by the Qualified Appraisal. 9 41)Aw01plex Untend ConnnwitisA1100.0041.4 DonVisd Atmmentlo Douala Lind Goat CSU(641.1019)a (647.1010).doc 111 2012-70 5.3. Fontana ill's Deposits into Escrow. Fontana 111 shall deposit with Escrow Agent,not less than two(2)business days prior to the Close of Escrow,the following: (i) Grant Deeds, each describing a Donation Parcel, (in the • forms attached as Exhibit "E" and Exhibit"F") in recordable form, fully executed and acknowledged by Fontana 111 ("Deeds"); (ii) The original Master Declaration of Restrictions (and any other documents to be recorded to comply with requirements of the California Department of Real Estate — "DRE"), in recordable form, fully executed and acknowledged by Fontana 1 l I; (iii) Fontana 111's approval of the draft of Escrow Agent's Closing Statement;and (iv) Funds required, if any, to pay Fontana 11I's prorated portion of property taxes and any monetary liens on the Donation Parcels,prorated to the Close. 5.4. Trustees' and Foundation's Deposits into Escrow. Trustees and the Foundation shall deposit with Escrow Agent,not less than two(2)business days prior to the Close of Escrow,the following: (i) Trustees' and Foundation's approval of the draft of Escrow Agent's Closing Statement;and (ii) Funds required, if any, to pay Trustees' and Foundation's prorated portion of property taxes. 5.5. Closing Date. The conveyance of the Donation Parcels to Trustees and the Foundation and the closing of this transaction("Close of Escrow")shall take place within thirty (30) days("Closing Date")following the receipt by Trustees and the Foundation of all Completion Notices,unless otherwise agreed upon by the Parties. 5.6. Escrow Closing Statement No less than two (2) business days prior to the Closing Date, Escrow Agent shall deliver to Trustees, Foundation and to Fontana 111,for their respective approvals, drafts of Escrow Agent's Closing Statement showing all charges to each.of the Parties and proposed disbursements from the Escrow. 10 Q1wehVMCdUobnd Connwhith1100.004 IadDOalFlnd Ayn,s to Demo 1..A4 drem CSU(6144010)01(6.17.2010).doo 112 2012-70 5.7. Closing procedure. On the Closing Date (or any extension thereof),Escrow Agent shall close Escrow as follows: (i) record the Master Declaration of Restrictions (and other documents required by ARE) (if not previously recorded) on the Faculty/Staff Housing Parcel;then (ii) record the Grant Deeds(marked for return to Trustees)with the County Recorder (with the Grant for the Education and Research Parcel containing covenants regarding conservation restrictions and Public open space provisions as provided in Section 2.1f);then (iii) issue the Title Policies;ten (iv) prorate taxes, assessments, and other charges, if any, as provided in Section 4.1 and Section 5.8;then (v) charge the Parties for those costs and expenses to be paid pursuant to this Agreement;and then (vi) prepare and deliver to both Trustees, Foundation and Fontana 111 one signed copy of Escrow Agent's Final Closing Statement showing all receipts and disbursements of the Escrow. If Escrow Agent is unable to simultaneously perform all of the instructions set forth above, Escrow Agent shall notify Trustees, Foundation and Fontana 111 and retain all funds and documents pending receipt of further instructions jointly issued by Trustees, Foundation and Fontana 111. 5.8. Prorations. Escrow Agent shall prorate the following costs at the Close of Escrow: (i) Fontana 111 shall pay: a. to the extent not otherwise exempted or waived by applicable laws,all governmental conveyancing fees and taxes due upon transfer of the Property,including,but not limited to,all documentary transfer taxes; b. all charges in connection with issuance of the Title Policies in the amounts of the Appraisals including the issuance of Title Insurance; 11 Q:\wtMnlantndudComi uddse9100A04LodDon indAgrmnom,o Dame Land 8omCSU(6444010)01(6-177010)40 • 113 2012-70 c. to the extent not otherwise exempted or waived by applicable laws, the recording charges in connection with recordation of the Master Declaration of Restrictions and the Deeds; d. the entire escrow fee charged by Escrow Agent;and e. Fontana 111's share of property taxes and assessments, prorated to Close of Escrow. (ii) Trustees shall pay: a. no charges for Escrow Agent's services. b. Trustees' share of property taxes and assessments,prorated from after the Close of Escrow if Trustees are unable to gain relief therefrom pursuant to Section 4.1. (iii) Real Estate Taxes,Bonds, and Assessments. Real property taxes shall be prorated at the Close of Escrow based on the most current real property tax bill available,including any additional property taxes that may be assessed after the Close of Escrow but that relate to a period prior to the Close of Escrow, regardless of when notice of those taxes is received or who receives the notice. In this regard, Trustees acknowledge that it will be fully responsible, after the Close of Escrow, for making application to the San Bernardino County Tax Assessor (and any other appropriate agency)to obtain a determination that the Donation Parcels, once legally owned by the Trustees or the Foundation,is exempted from further property taxes or assessments. 5.9. Possession. Possession of the Donation Parcels shall be delivered to Trustees and the Foundation at the Close of Escrow. 6. Fontana 111's Representations and Warranties. Fontana 111 represents and warrants to Trustees and the Foundation that as of the date of this Agreement and as of the Closing Date for each respective Donation Parcel: 6.1. Hazardous Substances. To the best of Fontana 11l's actual knowledge, the Donation Parcels are: (1) free from unpermitted levels of Hazardous Substances (as defined below); (ii) contain no buried or partially buried storage tanks located on the Donation Parcels; (iii) has not been used for the generation, storage or disposal of any Hazardous Substance and no Hazardous substance has been.,spilled,, 12 QAwdoblIUM INUdComawnt11eAnmow find Oon1iMl AWS ntW ro Doom Wed from CSU(644-1010)01(6.7.4010).doc 114 2012-70 disposed of,or store on under,or at the Property;and(iv)has never been used as a dump or landfill; 6.2. Compl'. cg with Law. The Donation Parcels will be, at the Completion Date, in material compliance with all applicable conditions set forth in the University Hills Specific Plan; 6.3. Leases. No leases, licenses, or other agreements allowing any third party rights to use the Donation Parcels are or will be in force as of the Closing; 6.4. Litigation and Investigations. To the best of Fontana 111's actual knowledge,there is no pending or threatened litigation,administrative proceeding, or other legal or governmental action with respect to the Donation Parcels, and Fontana 1 1 1 has received no notice, warning, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Donation Parcels are or have been in violation of any Laws or Environmental Laws, or informing Fontana l I1 that the Donation Parcels are subject to investigation or inquiry regarding the violation of any Laws or Environmental Laws. 6.5. Access to the Pronertv. Access to the Donation Parcels will be, as of the Completion Date,directly from a public right-of-way. 6.6. Disclosure. Fontana I 1 1 has disclosed to Trustees and the Foundation all information, records, and studies in Fontana 11l's possession in connection with the Donation Parcels, including any reports or studies concerning Hazardous Substances. All information that Fontana 111 has delivered to Trustees and the Foundation,either directly or through Fontana 111's agents,is to the best of Fontana 11.l's actual knowledge,accurate and Fontana 111 has disclosed all material facts known to Fontana 111 concerning the operation, development, or condition of the Donation Parcels. To the best of Fontana 111's actual knowledge, Fontana 111 has received no written communications from any authority indicating any concerns or problems with the Donation Parcels related to the potential existence of Hazardous Substances. The term "to the best of Fontana 111's actual knowledge"shall mean Fontana 111's current actual knowledge without investigation. .6.7.. ....$ubseauent.Information. .Fontana ill shalt. promptly,notify Trustees and the Foundation of any facts that would cause any of the representations 13 Q.+1.vc],VnleedV0leod Comourd MO1100404 Lod Do01F1od Ayeoaent W Dome Lod from CSU(6-14.2010)01(6.11-20101doc 115 2012-70 contained in this Agreement to be untrue as of the Close of Escrow. If Trustees and the Foundation reasonably conclude that a fact materially and adversely affects the Donation Parcels,Trustees and/or the Foundation shall have the option to terminate this Agreement by delivering written notice to Fontana 111 and Escrow Agent. If Trustees and/or the Foundation terminate this Agreement pursuant to this Section,Escrow Agent shall cancel the Escrow and Fontana 111 shall be responsible for all costs of Escrow. 6.8. Definition of Hazardous Substances. Hazardous Substances shall mean any substances,materials,or wastes that are or become regulated or classified as hazardous or toxic under federal, state,or local laws,or regulations and any material., waste, or substance that is a petroleum or refined petroleum product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33 U.S.C.A, Section 1321 or listed pursuant to 33 U.S.C.A.Section 131'7,a flammable explosive,or a radioactive material. 7. Authority of Parties. • 7.1. Authority for Fontana ].11. Fontana 111 warrants that this Agreement and all other documents delivered prior to or at the Close of Escrow: (1) Fontana 111 is a limited partnership and further represents that Fontana 111 is duly formed and validly existing and in good standing under the laws of the State of California; (ii) have been authorized,executed,and delivered by Fontana 111; (iii) are binding obligations of Fontana 111; (iv) are collectively sufficient to transfer all of Fontana 111's rights to the Donation Parcels;and (v) do not violate the provisions of any agreement to which Fontana 111 is a party or which affects the Donation Parcels. 7.2. Aatbor1ty for Tr d the F lotion. Trustees and the Foundation warrant that (1) this Agreement and all other documents delivered prior to or on the Close of Escrow have been authorized, executed, and delivered by Trustees and the Foundation; (ii) are binding obligations of Trustees and the Foundation;and 14 (Nw0AUddMlW4nd CommudUea lOIN004 Lrd Don ing Atprnue4nl toDonua land Rojo CSll(6-14-2010)01(647-201000 116 2012-70 (iii) it has full and complete authority (and will obtain such additional authority or approvals from time to time as needed prior to issuing such approvals herein) to approve, on behalf of itself, Trustees and the Foundation, all approvals and authorizations required of it(or of Trustees or the Foundation)in connection with the due diligence, conveyance of the Donation Parcels and the Close of Escrow, together with any other actions required of it herein. 8. Brokers. Both Parties represent that no broker is involved in this Agreement and each Party agrees to indemnify the other against brokerage or commission claims arising out of the indemnifying Party's actions. Each Party agrees to defend,indemnify,and hold harmless the other Party from any claims,expenses,costs,or liabilities arising in connection with a claim by a broker for any such fees or commissions. 9. Notices. As used in this Agreement,notice includes but is not limited to, the communication of any notice, request, demand, approval, statement, report, acceptance, consent,waiver and appointment. All notices must be in writing. Notice is given either (1) when delivered in person to the person or company intended named below,(ii) when delivered via facsimile with confirmation from the receiving party via return fax; or (iii) when sent via reputable overnight courier (such as Federal Express), addressed by name and addressed to the Party or persons intended,as follows: To CSUSB: California State University San Bernardino 5500 University Parkway San Bernardino,California 92407-2393 Attention:Robert Gardner With Copy to: Office of the Chancellor 401 Golden Shore,rd Floor Long Beach, California 90802 Attention: Elvyra San Juan To Foundation: The Foundation for California State University San Bernardino 5500 University Parkway .. .. San Bernardino,California •92407-2393. Attention:Deborah Bums 15 Q:\wddinlIndlinland Cocomunlde,V100.004 Lnd Don'Fial/town/0 to Doom Land ion CSU(6.44010)01(6.17 4010).da 117 2012-70 To Fontana 111: Fontana Inland Communities Corp. 7536 Lolina Lane Los Angeles,California 90046 Attention:Jim A.Abmad With Copy to: Aradi,Inc. 2001 Pennsylvania Avenue,NW Suite 1150 Washington,DC 20006 Attention: Amer Hammour With Copy to: William C.Holzwarth,Esq. Law Office of William C.Holzwarth,APC 2155 Chicago Avenue,Suite 304 Riverside,California 92507 Phone: (951)300-2000 Until such time as a Party gives notice of the change of address in accordance with the terms of this Section. 10. Entire Agrenpent. This Agreement and the documents referenced herein contain the entire agreement between the Parties to this Agreement concerning the donation of the Donation Parcels to Trustees and the Foundation, and shall not be modified in any manner except by an instrument in writing executed by the Parties or their respective successors in interest. 11. Severabiiity, If any term or provision of this Agreement shall, to any extent,be held invalid or unenforceable,the remainder of this Agreement shall continue in full force and effect if the remaining portions of this Agreement, read as a whole, continue to fully satisfy the intent of each Party. 12. Assinment. Trustees shall not have the right to assign its position in this Agreement,or any part hereof,without the express written consent of Fontana 111,which consent may be withheld for any reason or no reason. The Foundation may assign its position in this University Hills Agreement to any entity which becomes a successor in • interest to the Foundation's position in the Fontana 111.Property but then, only if such assignee assumes all of Foundation's obligations herein. Further, if such assignment 16 %WAINBa8UrTud Cem,s& iNU100.0041nd DosaFia&1 A{,aMasnt to Doi I,1An6 tram COD(6.44.2010)01(6174.010).doe 118 2012-70 takes place before the property has been transferred between the parties,such entity shall be qualified under Section 503(c)(3) of the Internal Revenue Code ("Code") at the time of the transfer so that such assignment will not have a negative impact on the qualification by Fontana 111 of the donated areas —the Education and Research Parcel and the Faculty/Staff Housing Parcel— for purposes of the tax benefits to Fontana 111 under the Code. Finally,as to possible assignment of Foundation's responsibilities,such assignee entity must be organized under the California Government Code as an entity approved to own and manage campus housing. Subsequent to the initial conveyance by Fontana 111 to a qualified entity as described herein,it is understood that the Trustees or the Foundation might thereafter deem it appropriate to further convey the Research and Education Parcel or the Faculty/Staff Housing Parcel to another entity for management purposes and that such transferee entity might not meet the qualifications set forth in this Section 12; provided,however,that in no event shall either the Education and Research Parcel or the Faculty/Staff Housing Parcel be used for any purpose other than those specific purposes described and set forth herein until the event or time period set forth in Section 2.1.j. has occurred (i.e. end of build out or 30 years whichever is sooner). Fontana 111 may assign its position in this Agreement to any entity which becomes a successor in interest to Fontana 111's position in the Fontana 111 Property. 13. Waivers. A waiver or breach of covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act. 14. Construction. The Section headings and captions of this Agreement are, and the arrangement of this instrument is,for the sole convenience of the Parties to this Agreement. The Section headings,captions,and arrangement of this instrument do not in any way affect, limit, amplify, or modify the terms and provisions of this Agreement. The singular form shall include plural, and vice versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both parties ..have prepared it. .Unless..otherwise.indicated, all references to Sections are to this 17 Qpvrchlinli alard Comrau,it1a$1100-001 LM Dor i II A,04$*to Dowe4a6 Gem CSU(6.141010)01(6-17-2010)AOa 119 2012-70 Agreement. All exhibits referred to in this Agreement are attached to it and incorporated in it by this reference. 15. Merger. All of the terms, provisions, representations, warranties, and covenants of the parties under this Agreement shall merge in the Deeds and other documents recorded at the Closing. 16. Counterparts; This Agreement may be executed in one or more counterparts,each of which shall be deemed an original and all of which,taken together, shall constitute one and the same instrument. p expressly 17. o O lions t Thi Pa i . Except as otherwise px y provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties hereto, to any person or entity other than the Parties hereto. 18. Amendment to this Aareetne . The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties hereto. 19. Time of the Essence. Time is of the essence in this Agreement. 24. Successors. This Agreement shall inure to the benefit of and shall be binding upon the Parties to this Agreement and their respective heirs, successors, and assigns. 21. �t�vemin .aw a d Venue. This Agreement and any dispute arising hereunder shall be governed by California law. Each Party hereby consents to the exclusive jurisdiction of the state courts sitting in the County of San Bernardino, State of California, in any action on a claim arising out of, under or in connection with this ti this Agreement. THE PARTIES Agreement or the transactions contemplated by HEREBY ACKNOWLEDGE THAT THE FOREGOING VENUE PROVISIONS HAVE BEEN CHOSEN AS THE APPROPRIATE AND CONVENIENT FORUM FOR Y SUCH ACTION AND WAIVE ANY RIGHT TO OBJECT TO JURISDICTIO N ON THE BASIS OF LACK OF PERSONAL JURISDICTION OR FORUM NON CONVENIENS. Each Party hereby consents to service of process via mail or overnight courier to the address specified in Section 9 or by any other method permitted under California law. 18 41-101.1-6 undcOmuwnko 1Qp.000uedoenlfiwl A$Iwnex%beano Land ftoR CU/(6.14.2010)01(6.174010).doe 120 2012-70 22. Coo crab n of Parties. In the event the Parties are not in agreement regarding compliance by Fontana 111 with the conditions set forth in Section 2.2,or in the event other disagreements arise between the Parties,the Parties agree to first privately meet and confer over such issues,and if after reasonable attempts are made by the Parties to resolve those issues, then to request that the Mayor's Office of the City select a reputable civil engin eer, licensed by the State of California, to make an independent determination of Fontana 11 l's compliance with the conditions set forth in Section 2.2. of al o o for approval 1 o ry Recognizing that the entitlement process to be conducted by Fontana 111 o and that of the University Hills Specific Plan could take approximately one (1) year, physical preparation of the University Hills Specific Plan Area, as described in Subsections`c', `d', `e', `f', `i', and `j' of Section 2.1 could take an additional five (5) years,the Parties fully understand and acknowledge the need during those times for full cooperation between them and between each of them and the City and other governmental agencies which maintain some degree of control over the Donation Parcels and the Project. The Parties acknowledge their duty to act in cooperation with each other in all respects concerning this Agreement under the covenant of good faith and fair dealing. The understanding for cooperation described in this Section 22 shall incude the t cooperation of each Party regarding approval of further documentation consistent the spirit and intent of this Agreement. 23. c,,,Dena+411 RestarcdIin$ Qaaliffeation of Donatio . Trustees and the Foundation acknowledge that Fontana 111 intends to apply for tax benefits resulting from the donation of the Donation Parcels, and Trustees and the Foundation agree to reasonably and timely cooperate with Fontana 111 and IRS, both before and after the Closing,in providing to IRS and any other appropriate governmental agencies additional information as might be requested to confirm issues and information relevant to their analysis of Fontana 11 l's application for tax benefits resulting from the Donations. 24. ne ors'o an . The Parties acknowledge the accuracy of the Recitals. The Recitals and the Exhibits are hereby incorporated into this Agreement as if set forth in full herein. IN WITNESS WHEREOF, the Parties have executed this AGREEMENT to be effective upon the date first written above. 19 aiwdaah.w.atad Cam,o,imwle0-0M Lad Doolflsal/meamo*to Daubs Land 6omCSU(6-141010)05(b171010).dee 121 2012-70 CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ti Albert K..Karnig,President . . • ir i- 2 2 Of _......4.1.....06a.—.....t.::./..._er_!.. Date. APPROVED: '11ktiSTEES OF THE CALIFORNIA 8.1.A.I*1 1 i ERSITY '''1'' f 1 1 \ .; 1...vyra 14 San Aunt Assistant Vice On ncellor Capital Planning,Design& Construction SII 0 Date THE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ._ _.....,............. ......... ......__________. Deborah Burns,Executive Director Date FONTANA CORNERS ill, I-.P.,a California limited partnership By: ARAM,LTD,,a Nevada limited partnership, its General Partner By: ARAD1„INC.,a Nevada corporation, its General Partner .. By: Amer 1 larrimoui,President -1 •t•-. 'It..) . : Date .. ., ... 20 I ro.w.c.itit....1.)Sin o1,1 I.4 1).naila.Atm..'OW..t.1-1 ft•m•CM;(i,14-$.1(•)fil(6-17 711)Nao- • 122 2012-70 MAP: PONTANA 111 PROPERTY AND CSUSB CAMPUS • 21 • Q,pvlagav tagnd Coatmoa'101100 MLod Dota7M1od Afro+oeot to Donato Lmd6omCSU(6-142o1o)a1(Om-2010)Am 123 2012-70 . I' lki.2 • • I .7: 1, ,. . . . ,. , II ',-' , 1 • I.{,•;.•,. ..'s !.1. , . ;'''-',40,,k.,34 it „43';'.,;•'' . ' ; iy0,-• a. , 4 , ,.-4,.....:.< i , .s: .t,\ , .,' ,-,, ' . ' . ',,' .. i . :: . ' - :...,- . 1 '121.413. Y`Otf„,-,f; .„,;;;:,N),, '. • .,,,,. ,,, , ' i `„:;,•,. . , , :..'•- ' ,,...:,..,-,. 114.sill,1r ' , , ,a `:- :..'tV't';'‘, ,1•-, ,i .4•:: , '1' ' ''-. <‘. ' ' -1".‘; ,:' C'', .. . 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CA 91)067 leets or o - . 126 • 2012-70 EXIi1111'1'f"C" UNIVERSITY IlILLS SPECIFIC.PLAN: F'AC:UL 1'Y/STAFF IUOUSIN( S1[rE [SEE(Jiil..1Rrr"A") 23 1J 1•,fh'.IIJ.nYfdMaN{f:OiHmnlYI[e.[il{IIU WO I l:1 0001a41 Ap m.ra[Ell/4.11k i_u:S fn.%(:Sf•it 144010)0i C.17.I011q.ac' 127 2012-70 -1 1 (fo,'1 ' , - .,.' b.,' X.1,,•.;' . . . ,:- ,:.,,,43.:,..% r'') ,, 1:: - , .,,- .1'' 1: 14"4-'•q Al r..‘-.•■•'f\;`,■v 'tit,/,...w. , '. '' '. 9 la'11D L 4 C44, 6 ti'1,4: .".-.. CY c.A-). ,, ■ '- --'4, ,,m* sit it■.°1,44:0 0 0/.5 14,',00.41i1;.1-.', I e ;4:74,:g7t:tf:'..' ' ,• ' f.,:,-.;14., v., . r, 1.. - ; f 1,1 v.i ill,'-• -'''..`-ti,„:•, d in,,til,61?,i,41.4; lir,,, (,..5,,:, ,,‘ 44 ,%:iliet .1.7.,;,Ottyyt ,i.,‘ s.,At .sop:,,.,,-. lif% ,• .0,,t4''' • i. '+ . • ' ' ,':1 At,-e+'yr.- •,,.$,,_do, -P...iWi•• ,`,4, 0, `.-ti. "::',. + ', ' ). ' .94! ••••;•-e., •' 1 • ' ' • ' ) • '''' ' • ' 1 kt- 'le,,g;SAIR #000,/ i kA, . ', • - e.-6- if f . 0,114-/ -; 401) • . ) i(... j$0 "g, - -:i. 0 sl '',, *.•,k '''i' . 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I. , ,l'' t ' •,, + . .. -ef, • i V In , . , 1- • rl- ' - ' - '. lifiet -'ii4'f, - I I 1 '; ' ' I • ..if:3,... I:-e .-. t ., i • I. q . 1 . ;) • _ i , , IH ', x.,. _ , r-ie.• I 1 I • -._ 128 2012-70 EXHIBIT"I)" FIDELITY'S GENERAL ESCROW INSTRUCTIONS • 24 (rmtAt01eod0daod Coot muidl(o311100-000 Lod DeetWWI Aroma!to Damn Land from CSU(6.1440/0)0i(6474010)d0c 129 2012-70 GENERAL PROVISIONS 1.DEPOSIT OF FUNDS The law dealing with the disbursement of funds requires that all funds be available for withdrawal as a matter of tight by the title entity's escrow andlor sub escrow account prior to disbursement of any funds. Only cash or wire transferred hinds can be given trmmedlate availability upon deposil. Cashier's checks,teller's checks and Certified checks may be available area business day after deposit. AR other funds such as personal,corporate or partnership checks and drafts are subject to mandatory holding periods which may cause matador delays In disbursement of funds in this escrow. In order to avoid delays,all fundings should be wire transfer. Outgoing wire transtera will not be authorized until confirmation of the respective incoming wire transfer or of avallebiley of deposited checks. All finds received in this escrow shell be deposited with other escrow funds In a general escrow account or accounts of Fidelity National Title Company•Major Accounts,with any Mate or nallonel bank,and may be transferred to any other such general escrow account or accounts, Said funds wit)not earn interest unless the Instructions otherwise specifically state that funds shall be deposited In an Interest_ bearing account. All disbursements shall be made by check of Fidelity National Title Company-Major Accounts. The principals to this escrow are hereby notified that the funds deposited herein are insured only to the limit provided by the Federal Deposit Insurance Corporation. Any Instruction for bank wire will provide reasonable time or notice for Escrow Holder's compliance with such instruction. Escrow Holder's sole duty and responsibility shall be to place said wire transfer Instructions with Its wiring bank upon conerrnation of(1) satisfaction of conditions precedent or(2)document recordation at close of escrow. Escrow Holder will NOT be held responsible for lost Interest due to wire delays caused by any bank or the Federal Reserve System,and recommends that all parties make themselves aware of banking regulations with regard to placement of wires. In the event there is Insufficient time to place a wire upon any such confirmation or the wires have closed for the day,the parties agree to provide written instructions for an alternative method of disbursement. WITHOUT AN ALTERNATIVE DISBURSEMENT INSTRUCTION,FUNDS WILL BE HELD IN TRUST IN A NON-INTEREST BEARING ACCOUNT UNTIL THE NEXT OPPORTUNITY FOR WIRE PLACEMENT. If for any reason funds are retained or remain in escrow following the close of escrow,you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than$10.00 per month. 2.PRORATIONS AND ADJUSTMENTS Al prorations andlor adjustments called for in this escrow are to be made on the basis of a thirty(30)day month unless otherwise instructed In writing. You are to use information contained on lest available tax statement, rental statement as provided by the Seller, beneficiary's statement and 11ro insurance policy delivered into escrow for the prorations provided for herein. 3.SUPPLEMENTAL TAXES The within described property may be subject to supplemental real property taxes due to the change of ownership taking place through this escrow. Any supplemental real property taxes arising as a result of the transfer of the property to Buyer shall be the sole responsibility of Buyer and any supplemental real property taxes arising prior to the closing date shall be the sole responsibility of the Seller. TAX BILLS ISSUED AFTER CLOSE OF ESCROW SHALL BE HANDLED DIRECTLY BETWEEN BUYER AND SELLER. 4.UTILIUESIPOSSESSION Transfer of utilities end poseesskm of the premises are to be settled by the parties directly and outside escrow. 6.PREPARATION AND RECORDATION OF INSTRUMENTS Escrow Holder is authorized to prepare,obtain,record and deliver the necessary instruments to carry out the tens and conditions of this escrow and to order the policy of title Insurance to be issued at close of escrow as called for In these Instructions. Close of escrow shall moan the date Instruments are recorded. . 6.AUTHORIZATION TO FURNISH COPIES You are authorized to furnish copies of these Instructions, supplements, amendments, nottces of cancellation and closing statements,to the Real Estate Broker(s)and Lender(s)named in this escrow. 7.RIGHT OF CANCELLATION Any principal Instructing you to cancel this escrow shall file notice of cancellation in your office In writing. You shall,within two(2) working days thereafter,deliver,one copy of such notice to each of the other principals at the addressee stated in This escrow. UNLESS WRITTEN OBJECTION TO CANCELLATION IS FILED IN YOUR OFFICE BY A PRINCIPAL WITHIN'TEN(10)DAYS AFTER DATE OF SUCH MAILING,YOU ARE AUTHORIZED TO COMPLY WITH SUCH NOTICE AND DEMAND PAYMENT OP YOUR CANCELLATION CHARGES. If written objection is fried,you are authorized to hold all money and Instruments In this escrow and take no further action until otherwise directed,either by the principals'mutual written instructions,or by final order of a court of competent jurisdiction. IL PERSONAL PROPERTY No examination or insurance as to the amount or payment of personal property taxes is required unless specifically requested. By signing these General Provisions,the parties to the escrow hereby acknowledge that they are Indemnifying the Escare Holder against any and all matters relating to any"Bulk Bales"requIrements,and instruct Escrow Agent to proceed with the dosing of escrow without any constderallon of matter of any nature whatsoever regarding'Bulk Bales"being handled through escrow. 9.RIGHT OF RESIGNATION Escrow Holder has the right to resign upon ten (10)days written notice delivered to the principals herein. If such right is exercised,all funds and documents shall be returned to the party who deposited them and Escrow Holder shall have no liability hereunder, 10.AUTHORIZATION TO EXECUTE ASSIGNMENT OF HAZARD INSURANCE POLICIES Either Buyer,Seiler andlor Lender may hand you the insurance agent's name and Insurence policy information,and you are to execute,on behalf of the principals hereto,fern assignments of Interest In any insurance poky(other than title Insuance)Called for in this escrow,forward assignment and policy to the Insurance agent,requesting that the Insurer consent-to such transfer andlor attach a loss payable clause andlor such other endorsements as may be required,and forward such policy(s)to the principals entitled thereto, It Is not yaw responsibility to verify the information handed you or the assignability of said insurance. Your sole duty is to forward said request to Insurance agent at close of escrow. Further,there shall be no reeponalbiity upon the pert of Escrow Holder to renew hazard insurance poicy(s)upon expiration or ..otherwise keep hill force.eitherddudirg or.subaequent toile.dose of esticrew. Caneeiatian of any existing Monad Insurance poppies to to be handled direotlyby the principals,end outside of escrow.. 11.ACTION IN INTERPLEADERThe principals hereto expressly agree that you,as Escrow Holder,have the absolute right atycur ejection to file en action In interpleader requiring the principals to answer and litigate their several maims and rights among themselves end you are authorized to deposit with the clerk of the court all documents and funds held in this escrow. In the event such action is flied,its principals 130 2012-70 jointly end severally agree to pay your cancellation charges and coats,expenses and reasonable attorney's fees which you are required to expend or Incur in such Interpleeder action,the amount thereof to be fixed and judgment therefor to be rendered by the court Upon the filing of such action,you shell thereupon be fully released and discharged from all obligations imposed by the terms of this aircrew or otherwise. 12.TERMINATION OF AGENCY OBLIGATION If there is no action taken on this escrow within six(6)months after the"time limit date"as set forth in the escrow instructions or written extension thereof,your agency obligation shall terminate at your option and all documents,monies or other Items held by you shall be returned to the parties depositing same. In the event of cancellation of this escrow,whether it be at the request of any of the principals or otherwise,the fees and charges due Fidelity National Title Company-Major Accounts,including expenditures Incurred andfor authorized shall be borne equally by the parties hereto(unless otherwise agreed to specifically). 13.CONFLICTING INSTRUCTIONS Upon feeeipt of any conflicting Instructions, you are to lake no action in connection with this escrow until non-conflicting instructions ere received from all of the principals to this escrow(subject to sections 7,9,11 and 12 above). 14.REIMBURSEMENT ATTORNEY FEES/ESCROW HOLDER In the event that a suit Is brought by any party or parties to these escrow Instructions to which the Escrow Holder is named as a party which results in a judgment in favor of the Escrow Holder end against a principal or principals herein,the principals or principals'agent agree to pay said Escrow Holder all costs,expenses and reasonable attorney's foes which it may expend or Incur In said suit,the amount thereof to be fixed and judgment therefore to be rendered by the court In said suit. 1e.DEUVERYIRECEIPT Delivery to principals as used In these instructions unless otherwise stated herein Is to be by regular mail, and receipt is determined to be 72 hours after such mailing. All documents,balances and statements due to the undersigned are to be malted to the address shown herein. 1e.STATEIFEDERAL CODE NOTlPICATIONS According to Federal Law,the Seller,when applicable,will be required to complete a sales activity report that will be utilized to generate e 1099 statement to the Internal Revenue Service. Pursuant to State Law,prior to the dose of escrow,Buyer will provide Escrow Holder with a Preleminery Change of Ownership Report in the event said report Is not handed to Escrow Holder for submission to the County in which subject property ls located, upon recording of the Grant Deed,Buyers acknowledge that the applicable fee will be assessed by said County and Escrow Holdershell debit the account of Buyer for same at dose of escrow. Buyer end Seller herein represent and warrant that they will seek and obtain independent legal advice end counsel relative to their obligations under the"Foreign Investors in Reel Property Act",and any other applicable federal andlor state Jews regarding same,and will take all steps necessary In order to comply with such requirements and hereby hold you harmless relative to their compliance therewith, 17.ENCUMBRANCES Escrow holder Is to act upon any statements furnished by a lienholder or his agent without liability or responsibility for the accuracy of such statements. Any adjustments necessary because of a discrepancy between the information furnished Escrow Holder and any amount later determined to be correct shall be settled between the parties direct and outside of escrow. 16.ENVIRONMENTAL ISSUES Fidelity National Title Company-Major Accounts has made no Investigation concerning said property as to envlronmentaUtoxic waste Issues. Any due diligence requiread or needed to determine environmental impact as to forms of toxlficadon,If applicable,well be done directly and by principals outside of escrow. Fidelity National Title Company-Major Accounts is released of any responsibility andlor tlamilty In connection therewith. 19.USURY Escrow Holder Is not to be concerned with any questions of usury In any loan or encumbrance involved In the processing of this escrow and Is hereby released of any responsibility or liability therefore. 20.DISCLOSURE Escrow Holder's knowledge of matters affecting the property, provided such fads do not prevent compliance With these instructions,does not create any liability or duty in addition to these instructions. 21.CLARIFICATION OF DUTIES Fidelity Natonal Title Company-Major Accounts serves ONLY as an Escrow Holier In connection with these instructions and cannot give legal advice to any party.hereto. • Escrow Holder is not to be held accountable or liable for the sufficiency or correctness as to form,manner of execution,of validity of any instrument deposited in this escrow, nor as to the identity,authority or rights of any person executing the same. Escrow Holdses duties hereunder shall be limited to the proper handling of such money and the proper safekeeping of such Instruments,or other documents received by Escrow Holder,end for the disposition of same in accordance with the written instructions Scented by Escrow Holder, The agency and duties of Escrow Holder commence only upon receipt of copies of these Escrow Instructions executed by all parties. THIS AGREEMENT IN ALL PARTS APPLIES TO, INURES TO THE BENEFIT OF, AND BINDS ALL PARTIES HERETO, THEIR HEIRS, LEGATEES, DEVISEES, ADMINISTRATORS, EXECUTORS, SUCCESSORS AND ASSIGNS,AND WHENEVER THE CONTEXT SO REQUIRES THE MASCULINE GENDER INCLUDES THE FEMININE AND NEUTER, AND THE SINGULAR NUMBER INCLUDES THE PLURAL. THESE -INSTRUCTIONS•AND ANY.OTHER AMENDMENTS•MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE CONSIDERED AS AN ORIGINAL AND BE EFFECTIVE AS SUCH. 131 2012-70 4 EXHIBIT"E" FACULTY/STAFF HOUSING PARCEL-GRANT DEED 25 • Q.1weh@ nIanakdandCommundleAlIQOA O4L edDo,YO■dA®omeeaitoPoore[.00dnomCSU(6•44010)at(sn-2OJO).doe • 132 2012-70 RECORDING REQUESTED BY AND WHEN RECORDED MNLTHI6 DEED AND.UNLESS OTHERWISE SHOWN aELC N,MAIL TAX STATEMENT TO: Nemo 8I,eet Addreae City& . Slate ZD Tide Order No. Escrow No. SP• E ABOVE THIS LINE FOR RECORDER`S s' Grant Deed THE UNDERSIGNED GRANTOR(S)DECLARE(S) DOCUMENTARY TRANSFER TAX IS$ unincorporated area City of San Bernardino Parcel No 0 computed on full varuo of interest or property conveyed,or ['computed on full value less value ofliens or encumbrances remaining at time of sale,end FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, FONTANA CORNERS 111,L.P.,a California limited partnership hereby GRANT(S)to The Foundation for California State University,San Bernardino the following described real property in the City of San Bernardino. county of San Bernardino ,state of California See Legal Description attached hereto as Exhibit"A"and incorporated herein by this reference. FONTANA CORNERS 111, L.P. a California limited partnership Dated STATE OF CALIFORNIA COUNTY OF By: Its General Partner On before me, dare need name and tWa of the Aced pemodaly fedearad who proved to me on the basis of satisfactory evidence to be the persons)whose names)Ware subscdbed to the within Instrument and acknowledged to me that hslahelIhoy executed the same in hlsfter/thelr authorized capecltylles), and. that by hldherfBreir instalment on the instent the perron(s),or the entity upon behalf of which the persons)acted,executed the inabument. I certify under PENALTY OF PERJURY under the laws of the state of .Caufornla that the foregoing pectipaph is true and correct. WITNESS my hand and official seat Signature ;111a emsforondet note iel seal) MAIL TAX STATEMENTS TO PARTY SHOWN ON FOLLOWING LINE;IF NO PARTY SHOWN,MAIL AS DIRECT-if)ABOVE Neme Street Address ''• • 133 • 2012-70 EXHIBIT"F" EDUCATION AND RESEARCH PARCEL-GRANT DEED • 26 QAwe4tle1mdllnlendCormun01001100.004 Ltd DonIFInal Ayraeaeat W DOW..Load OomCSU 44.140010)01 05-17-20K0406 • 134 2012-70 RECORDING REQUESTED BY AND WHEN RECORDEDMAIL 1M S DEED AND.UNLESS OTHERVNE SHOWN BELOW.MAIL TAXSTAlEMBNTTO: Nome Simet Address City a . Stale ZIP Title Order No. Escrow No. AC ABO T ' UN F. R; ORDEl Grant Deed THE UNDERSIGNED GRANTOR(S)DECLARE(S) DOCUMENTARY TRANSFER TAX IS$ unincorporated area City of San Bernardino Parcel No. 0 computed on full value of interest or property conveyed,or (]computed on full value less value of liens or encumbrances remaining at time of sale,and FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, FONTANA CORNERS 111,L.P.,a California limited partnership hereby GRANT(S)to The State of California for the Benefit of California State University, San Bernardino the Iblloa ing described real property in the City at San Bernardino, county of tan Bernardino ,state of California See Legal Description attached hereto as Exhibit"A"and incorporated herein by this reference. FONTANA CORNERS 111, L.P. a California limited partnership Dated STATE OF CALIFORNIA COUNTY OF By: Its General Partner On before me, • (hem Omit name and are of the odour) .personalty appeared who proved to me on the baste at satisfactory evidence to be the person(e)whose names)IsMre subscribed to the within Instrument and acknowledged to me that hefehelthey executed the same in Mather/their authorized capacityQes), and that by hhdhedthelr signatures)on the Instrument the person(s),or the entity upon behalf of whichihe person(e)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the elate at . California that tRte•forepobtg•parapreph Is true and torrect. WITNESS my hand and cadet seat ., Signature (Thts cns for°tete Waal esell MAIL TAX STATEMENTS TO PARTY SHOWN ON FOLLOWING LINE;IF NO PARTY SHOWN,MAJL AS DIRECTED ABOVE Name Sheet Address City d Slate " 135 2012-70 ATTACHMENT 4 PLANNING COMMISSION STAFF REPORT CITY OF SAN BERNARDINO-PLANNING DIVISION urommorimmoommunk Aummons CASE: Development Agreement No. 12-01 AGENDA ITEM: 3 HEARING DATE: March 28,2012 WARD: 5 OWNER/APPLICANT: Inland Communities Corp 650 E.Hospitality Lane Suite 140 San Bernardino,CA 92408 REQUEST/LOCATION A request for recommendation of approval of a development agreement regarding 404 acre University Hills development to implement the University Hills Specific Plan, generally located northwest of the California State University at San Bernardino campus between the northern termini of Campus Parkway and Little Mountain Road. APNs: 0265-011-06,07,08;0265-021-13; 0265-041-12;0265-051-09, 12, 13;0265-061-16. CONSTRAINTS/OVERLAYS: University Hills Specific Plan approved by Resolution 2008-422,November 17,2008. ENVIRONMENTAL FINDINGS: ❑ Not Applicable ❑ Exempt from CEQA Section 15301 —Existing Facilities a No Significant Effects ❑ Potential Effects,Mitigation Measures and Mitigation Monitoring/Reporting Plan ® EIR for University Hills Specific Plan SCH#2007071155 STAFF RECOMMENDATION: • ® Approval ❑ Conditions ❑ Denial ❑ Continuance to: 136 2012-70 UH Development Agreement PC Hearing Date:03.28.12 Page 2 PROJECT DESCRIPTION The proposed development agreement (DA) addresses the State and City required elements of DA's including duration, permitted uses, density, maximum height and size of proposed buildings,provisions for the reservation or dedication of land for public purposes,provisions not , permitting protection from future fee increases, provisions for tiered amendment review and provisions for a health and safety exception. Optional conditions,terms,restrictions,and timing requirements including phasing among others are allowed and included. SETTING &SITE CHARACTERISTICS The University Hills Site Plan encompasses 404.3 acres. It allows 980 residential units in the following densities: 14 acres,up to 3.1 u/a,37 units 10 acres,up to 9 u/a,70 units 30 acres,up to 17 u/a,358 units 31 acres,up to 20 u/a,51.5 units 10 acres,parks/club house 308 acres,open space and roads BACKGROUND • November 1, 2005 Mayor and Common Council adopted the city's General Plan and University District Specific Plan by Resolution 2005-362. • November 17,2008 Mayor and Common Council approved the Final Subsequent EIR for the University Hills Specific Plan,Tentative Parcel Map 18969 and TTMs 18140 and 18696. CALIFORNIA ENVIRONMENTAL QUALITY ACT(CEQA) Utilize certified EIR for University Hills Specific Plan SCH#2007071155. ANALYSIS Over the course of the past year,city staff has met regularly with the developer and his representatives regarding the terms of the proposed Development Agreement. San Bernardino Municipal Code 19.40 requires a public hearing before the Planning Commission for a recommendation to approve,conditionally approve or disapprove prior to a public hearing for final decision before the Mayor and Common Council. 137 2012-70 UH Development Agreement PC Hearing Date: 03.28.12 Page 4 FINDINGS OF FACT 1. The Development Agreement is consistent with the General Plan and in that changes to The Development Agreement land uses as approved in the University Hills Specific Plan allow densities allowed by the 2005 San Bernardino General Plan. 2. The Development Agreement is consistent with any applicable Specific Plan. The Development Agreement is implementing all requirements of the University Hills Specific Plan,portions of which are attached to the Development Agreement as Exhibits. 3. The Development Agreement is consistent with the Development Code. The Development Agreement does not allow any uses or set standards outside of those allowed by Title 19 of the San Bernardino Municipal Code. 4. ,The Development Agreement will promote the welfare and public interest of the city The Development Agreement allows for the orderly development of varying densities of development,while maintaining 58% of the site undeveloped and creating ten acres of parks and recreation space. RECOMMENDATION, Recommend that the Mayor and Common Council approve Development Agreement No. 12-01 with Exhibits H—K,based upon the findings of fact contained in the staff report. Respectfully Submitt . ,//(.:).„/ iiL M. argo Wheeler,A.I.C.P. Community Development Director Attachment A Development Agreement Attachment B CA.Government Code 65864-65869.5 Attachment C Exhibits H-K 138 VIZ �V�{•J kbV v•v✓vv. v✓vvi.✓ 2012-70 1 Vl J GOVERNMENT CODE SECTION 65864-65869.5 65864 . The Legislature finds and declares that: (a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. (b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. (c) The lack of public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities, is a serious impediment to the development of new housing. Whenever possible, applicants and local governments may include provisions in agreements whereby applicants are reimbursed over time for financing public facilities. . 65865. (a) Any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article. (b) Any city may enter into a development agreement with any person having a legal or equitable interest in real property in unincorporated territory within that city's sphere of influence for the development of the property as provided in this article. However, the agreement shall not become operative unless annexation proceedings annexing the property to the city are completed within the period of time specified by the agreement. If the annexation is not completed within the time specified in the agreement or any extension of the agreement, the agreement is null and void. (c) Every city, county, or city and county, shall, upon request of an applicant, by resolution or ordinance, establish procedures and requirements for the consideration of development agreements upon application by, or on behalf of, the property owner or other person having a legal or equitable interest in the property. (d) A city, county, or city and county may recover from applicants the direct costs associated with adopting a resolution or ordinance to establish procedures and requirements for the consideration of development agreements. (e) For any development agreement entered into on or after January 1, 2004, a city, county, or city and county shall comply with Section 66006 with respect to any fee it receives or cost it-recovers pursuant to this article. 65865.1. Procedures established pursuant to Section 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest http://www.leginfo.ca.gov/cgi-bin/displaycode?set1391=gov&group=65001-66000&file=6.., 2/29/2012 CA Codes(gov:65864-652569.5) 2012-70 Page 2 of 5 thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial _ evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement. 658 65.2. A development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time. The agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time. 65865.3. (a) Except as otherwise provided in subdivisions (b) and (c) , Section 65868, or Section 65869.5, notwithstanding any other law, if a newly incorporated city or newly annexed area comprises territory that was formerly unincorporated, any development agreement entered into by the county prior to the effective date of the incorporation or annexation shall remain valid for the duration of the agreement, or eight years from the effective date of the incorporation or annexation, whichever is earlier. The holder of the development agreement and the city may agree that the development agreement shall remain valid for more than eight years, provided that the longer period shall not exceed 15 years from the effective date of the incorporation or annexation. The holder of the development agreement and the city shall have the same rights and obligations with respect to each other as if the property had remained in the unincorporated territory of the county. (b) The city may modify or suspend the provisions of the development agreement if the city determines that the failure of the city to do so would place the residents of the territory subject to the development agreement, or the residents of the city, or both, in a condition dangerous to their health or safety, or both. (c) Except as otherwise provided in subdivision (d) , this section applies to any development agreement which meets all of the following requirements: (1) The application for the agreement is submitted to the county prior to the date that the first signature was affixed to the petition for incorporation or annexation pursuant to Section 56704 or the adoption of the resolution pursuant to Section 56800, whichever occurs first. (2) The county enters into the agreement with the applicant prior to the date of the election on the question of incorporation or annexation, or, in the case of an annexation without an election pursuant to Section 57075, prior to the date that the conducting authority orders the annexation. http://www.leginfo.ca.gov/cgi-bin/displaycode?sectj.48=gov&group=65001-66000&file=6... 2/29/2012 2012-70 rage i oT (3) The annexation proposal is initiated by the city. If the annexation proposal is initiated by a petitioner other than. the city, the development agreement is valid unless the city adopts written findings that implementation of the development agreement would create a condition injurious to the health, safety, or welfare of city residents. (d) This section does not apply to any territory subject to a development agreement if that territory is incorporated and the effective date of the incorporation is prior to January 1, 1987. 65865.4. Unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866. 65865.5. (a) Notwithstanding any other provision of law, after the amendments required by Sections 65302.9 and 65860.1 have become effective, the legislative body of a city or county within the Sacramento-San Joaquin Valley shall not enter into a development agreement for property that is located within a flood hazard zone unless the city or county finds, based on substantial evidence in the record, one of the following: (1) The facilities of the State Plan of Flood Control or other flood management facilities protect the property to the urban level of flood protection in urban and urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in nonurbanized areas. (2) The city or county has imposed conditions on the development agreement that will protect the property to the urban level of flood protection in urban and urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in nonurbanized areas. (3) The local flood management agency has made adequate progress on the construction of a flood protection system that will result in flood protection equal to or greater than the urban level of flood protection in urban or urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in nonurbanized areas for property located within a flood hazard zone, intended to be protected' by the system. For urban and urbanizing areas protected by project levees, the urban level of flood protection shall be achieved by 2025. (b) The effective date of amendments referred to in this section shall be the date upon which the statutes of limitation specified in subdivision (c) of Section 65009 have run or, if the amendments and any associated environmental documents are challenged in court, the validity of the amendments and any associated environmental documents has been upheld in a final decision. (c) This section does not change or diminish existing requirements of local flood plain management laws, ordinances, resolutions, or regulations necessary to local agency participation in the national flood insurance program. http://www.leginfo.ca.gov/egi-bin/displaycode?sec141=gov&group=65001-66000&file=6... 2/29/2012 2012-70 rage 4 of 5 CA LOaeS(gov:03504-dDuay.3} 65866. Unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies. 65867. A public hearing on an application for a development agreement shall be held by the planning agency and by the legislative body. Notice of intention to consider adoption of a development agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement. 65867.5. (a) A development agreement is a legislative act that shall be approved by ordinance and is subject to referendum. (b) A development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan. (c) A development agreement that includes a subdivision, as defined in Section 66473.7, shall not be approved unless the agreement provides that any tentative map prepared for the subdivision will comply with the provisions of Section 66473.7. 65868. A development agreement may be amended, or canceled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Notice of intention to amend or cancel any portion of the agreement shall be given in the manner provided by Section 65867. An amendment to an agreement shall be subject to the provisions of Section 65867.5. 65868.5. No later than 10 days after a city, county, or city- and county enters into a development agreement, the clerk of the legislative body shall record with the county recorder a copy of the agreement, which shall describe the land subject thereto. 'From and after the time of such recordation, the. agreement shall impart such notice thereof to all persons as is afforded by the recording laws of this state. The burdens of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in http://www.leginfo.ca.gov/cgi-bin/displaycode?secig2r=gov&group=65001-66000&file=6.., 2/29/2012 2012-70 rage of 5 CA Codes(gov:004-0869.J) interest to the parties to the agreement. 65869. A development agreement shall not be applicable to any development project located in an area for which a local coastal program is required to be prepared and certified pursuant to the requirements of Division 20 (commencing with Section 30000) of the Public Resources Code, unless: (1) the required local coastal program has been certified as required by such provisions prior to the date on which the development agreement is entered into, or (2) in the event that the required local coastal program has not been certified, the California Coastal Commission approves such development agreement by formal commission action. 65869.5. In the event that state or federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, such provisions of the agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. • http://www.leginfo.ca.gov/cgi-bin/displaycode?sec1gai=gov&group=65001-66000&file=6.,. 2/29/2012 2012-70 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of San Bernardino Attn: City Manager 300 North"D"Street,6'1'Floor San Bernardino,California 92418 (SPACE ABOVE FOR RECORDER'S USE ONLY) DEVELOPMENT AGREEMENT SPECIFIC PLAN NO. 08-02 (UNIVERSITY BILLS) CITY OF SAN BERNARDINO FEBRUARY , 2012 144 2012-70 TABLE OF CONTENTS P_ ane 1. Project Development Requirements 3 1.1 Standard of Development 3 1.2 Vested Provisions;Rules and Regulations 3 1.3 Updating of Applicable Regulations 4 1.4 Fees and Fee Credits 5 1.5 Building Permits 8 1.6 Processing of Applications;Final Action 8 1.7 Timing of Development 9 1.8 Public Services 9 1.9 [Intentionally deleted.] 10 1.10 Public Financing 10 2. Status of Project Approvals 11 2.1 Term of Approvals 11 2.2 Consistency of Land Use Designations 11 3. Term of Agreement 11 3.1 Initial Term Extensions 11 3.2 Project Completion 12 4. Binding Effect of Agreement 12 4.1 Covenant 13 4.2 No Property Interest 13 5. Assignment 13 5.1 Right of Assignment 13 5.2 Notice Requirement 13 5.3 Compliance with Project Approvals 14 5.4 Effect of Assignment;Effect of Default 14 6. Notices 14 6.1 Form of Notice 14 6.2 Change of Address 15 7. Amendment of Agreement 15 7.1 Formal Amendment 15 7.2 Clarification 15 8. Interpretation and Enforcement of Agreement 16 8.1 Complete Agreement 16 8.2 Severability 17 8.3 Conflict with State or Federal Laws 17 8.4 Applicable Law 17 8.5 Prevailing Party 17 8.6 Defense of Agreement 17 8.7 Authority of Signatories 17 8.8 Indemnification 17 8.9 Waiver and Delays 18 8.10 Third Party Actions 18 145 2012-70 8.11 Force Majeure 18 9. Effect on Property 18 9.1 Estoppel Certificate 18 9.2 Release of Lots from Agreement 18 10. Periodic Review of Compliance with Agreement 18 10.1 Annual Review 18 10.2 Contents of Report 19 10,3 Waiver 19 11. Violations 19 11.1 Violation by Property Owner 19 11.2 Violation by City 20 11.3 Legal Enforcement 20 11.4 Mortgagee Protection 21 • 12. Relationship of Parties 22 13. Exhibits 22 14. Adoption of Agreement 22 15. Recording of Agreement 22 Exhibits Exhibit"A"—Legal Description of Property Exhibit"B"—Public Facilities Financing Plan Exhibit"C"—Table of Processing Fees Exhibit"D"—Table of Impact Fees Exhibit"E"—Mitigation Monitoring and Reporting Program Exhibit"F"—5-Year Performance Requirement Exhibit"G"—Facilities Maintenance Plan ii 146 2012-70 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this day of February, 2012, ("Effective Date") by and between(i) the CITY OF SAN BERNARDINO, a municipal corporation organized and existing under the laws of the State of California (the "City"), and (ii) FONTANA CORNERS 111, L.P., a California limited partnership (the "Property Owner"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code. The City and the Property Owner may be referred to herein individually as a"Party" and collectively as the"Parties." RECITALS A. The Property Owner is the Owner of a large property, consisting of approximately four hundred four (404) acres, more particularly described in Exhibit "A" attached hereto (the "Property"). The Property is located in the northerly portion of the City, in close proximity to the campus of California State University, San Bernardino ("CSU"). B. The Property previously was the subject of Resolution No. 93-45, adopted by the City on February 22, 1993, approving General Plan Amendment No. 91-07 and Specific Plan 90-03 and related conditions of approval,and authorizing execution of Development Agreement No. 91-03 with the Property Owner (collectively, the "Prior Approvals"). C. Pursuant to the Prior Approvals and the plan of development contained therein, commonly known as Paradise Hills, the Property Owner prepared and filed a proposed map for subdivision of the Property. Subsequently Property Owner withdrew that proposal. D. The Property Owner now proposes to develop the Property as a residential community to be known as University Hills (the"Project"). E. The Property Owner has made application (and intends to make additional applications in the future) to the City for additional discretionary land use approvals, including, but not limited to, a new specific plan(the "Specific Plan"), a new General Plan amendment (the "GPA"), a zone change (the "Zone Change"), one or more subdivision maps (the "Map" or the "Maps") and formation of one or more financing districts. F. The Specific Plan, the GPA, the SEIR (Recital J), the MMRP (Recital J) and any other discretionary land use approvals relating to the Project (and the Prior Approvals, to the extent not inconsistent) are incorporated herein by this reference, and collectively comprise the "Project Approvals." Any and all Maps and other future discretionary land use approvals relating to the Project shall become part of 1 147 2012-70 the Project Approvals upon receiving approval from the City. The Property Owner desires to develop the Property in accordance with the Project Approvals and this Agreement. The Project consists of development of the Property as contemplated by the Project Approvals and this Agreement, subject to any refinements agreed upon by the Parties. G. Pursuant to the processing of the Project,the Property Owner proposes to enter into this Agreement. Entering into this Agreement is acknowledged to be to the mutual benefit of the Parties. Further, Property Owner and CSU propose to enter into two (2) agreements (jointly, the "CSU Agreements") titled: (1) Agreement Concerning Development of University Hills, and (ii) Agreement to Donate Land. The Agreement Concerning Development of University Hills provides for permanent public access to the Property, and also provides for joint cooperation on the development of certain street intersections and adjoining landscaped areas. The Agreement to Donate Land provides that,upon the occurrence of specified events, Property Owner will (1) convey to CSU approximately 220 acres of open space for educational and research purposes and will include public trails and (2) convey to CSU a planning area within the Property for the construction by CSU of up to 60 dwelling units for use by faculty and staff. The City acknowledges that these agreements (and the land conveyances to CSU)will be of significant benefit to the City and the public. H. The Property Owner has a legal interest in the real property situated in the City which is the subject of this Agreement, and therefore satisfies the statutory requirements to enter into this Agreement. In conjunction with the Prior Approvals, City Council Resolution No. 93-45 certified a Final Environmental Impact Report (the "EIR"), adopted findings and a statement of overriding considerations, and adopted Mitigation Monitoring Program as contemplated by the EIR. The City Council certified that the EIR was legally adequate, and that it satisfied the requirements of the California Environmental Quality Act("CEQA;" California Public Resources Code Section 21000 et seq), the CEQA Guidelines (California Code of Regulations Section 15000 et seq.) and applicable ordinances and regulations of the City. J. In connection with this Agreement, the City Council reviewed the previously approved EIR and related documents, prepared a Final Subsequent Environmental Impact Report (the "SEIR"), and at a duly called and held public hearing on November 17, 2008, certified that the SEIR is legally adequate. The City Council's certification of the SEIR included its approval of the Mitigation Monitoring and Reporting Program ("MMRP") for the Project. The MMRP is attached hereto as Exhibit"E". K. California Government Code ("Government Code") Sections 65864 et seq. (collectively, the "Development Agreement Law") authorizes the City to enter into binding development agreements with persons having a legal or equitable interest in 2 148 2012-70 the 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 development. The City,being a charter city pursuant to the laws of the State of California,has adopted by ordinance Municipal Code Chapter 19.40, by which the City has provided its separate-.-development--criteria-for--development---agreements.----T-his-Agreement is adopted pursuant to the Development Agreement Law and the provisions of the City's Municipal Code Chapter 19.40. L. The Planning Commission, on November 5, 2008, conducted hearings and adopted findings relating to this Agreement, as required by Municipal Code Section 19.40, and recommended that the City Council approve this Agreement. The City Council, on , 2012 by Resolution No. , made all findings and determinations relating to this Agreement which are required by the Development Agreement Law and by Municipal Code Section 19.40,and approved this Agreement by its adoption of Ordinance No. M. The City Council finds that execution of this Agreement and the performance of and compliance with the terms and conditions set forth herein by the Parties: (i) is in the best interests of the City; (ii) will promote the public convenience, general welfare and good land use practices in the City; (iii) will promote preservation and enhancement of land values in the City; (iv) will encourage the development of the Project by providing a reasonable level of certainty to the Property Owner; and (v) will provide for orderly growth and development in a manner consistent with the General Plan and other plans and regulations of the City. NOW, THEREFORE, in consideration of the above Recitals, all of which are expressly incorporated into this Agreement, and the mutual promises and obligations of the Parties set forth herein,the Parties agree as follows: 1. Project Development Requirements. 1.1 Standard of Development. The Project shall be developed in accordance with the Project Approvals and this Agreement.During the Term (see Section 3.1)of this Agreement,the permitted uses within the Project,the density and intensity of use, maximum height and size of buildings, other zoning standards, the requirements for reservation or dedication of land for public purposes, the mitigation requirements and all other terms and conditions of development of the Project shall be those set forth in the Project Approvals. 1.2 Vested Provisions;Rules and Regulations. Property Owner shall have the vested right, to the fullest extent allowed under the Development Agreement Law(Gov. Code Sections 65864 et seq.) and Municipal Code Section 19.40, and except as otherwise expressly provided in this Agreement, to develop the Property in accordance with the provisions of the Specific Plan identified in Recital 13, and the terms and provisions in the other Project Approvals, all as in effect as of the Effective Date and the other provisions of 3 149 2012-70 this Agreement (collectively the "Vested Provisions"). Municipal Code Chapter 19.40 provides, at subsection 2 of Section 19.40.010, that: "Should any apparent discrepancies between the meaning of these documents arise [Chapter 19.40, Section 65864 et seq. of the Government Code, and the Development Agreement], then the documents shall control in construing the development agreement in the following order of priority: A. The plain terms of the development agreement itself, B. The provisions of this Chapter; and C. The provisions of Article 2.5 of the California Government Code,cited above. Pursuant to Government Code Section 65866, and except as otherwise provided in this Agreement, the regulations, rules and official policies of the City governing (i) permitted uses within the. Project, (ii) density and intensity of use, (iii) design, improvement and construction standards and specifications, (iv)preparation, design,conditions and approval of tentative and final subdivision maps and parcel maps, and (v) all other terms and conditions of development of the Project shall be those regulations, rules and official policies which are in effect on the Effective Date of the resolution approving this Agreement, as modified and/or supplemented by the Specific Plan (the "Applicable Regulations"). Other ordinances, regulations and official policies of the City which are adopted thereafter may be applicable to the Project, to the extent that they are not in conflict with the Applicable Regulations. In accordance with the provisions of Government Code Section 66452.6, all tentative maps,and all permits and other approvals, shall be extended, from time to time in increments of not less than 36 month periods, pursuant to application by Property Owner,consistent with the Term of this Agreement. In light of this Agreement, the ten (10) year limitation in Section 66452.6 shall not apply. The number of phased final maps that may be filed shall be determined by the City's advisory agency at the time of approval or conditional approval of a tentative map. Such tentative and final maps shall comply with State and Federal laws, but may be exempted from certain regulations and requirements which do not threaten the public health, safety and welfare. The Vested Provisions may be modified only by the City as it determines to address a compelling public necessity regarding health and safety that cannot reasonably be addressed by other means or to comply with any later adopted federal or state law or regulation. [Note: All references in this Agreement to "map" or"maps," "tentative map" or"tentative maps,"whether capitalized or lower case, shall, unless specifically designated to the contrary, mean and refer to tentative subdivision maps, final subdivision maps, and tentative parcel maps and final parcel maps, all as defined in, and regulated by, California Government Code, Sections 66410 et seq (collectively, the "Subdivision Map Act"or the "Map Act."] 1.3 Updating of Applicable Regulations. The foregoing notwithstanding, the Parties recognize that planning and design considerations are constantly evolving and being modernized, and that development of the Project may from time to time require updating of City regulations and standards in order to achieve the most desirable outcomes 4 150 2012-70 for the City from the Project. Accordingly, the City agrees that it shall diligently and in good faith review and process to final action any proposals made by the Property Owner for such updating of City regulations and standards. 1.4 Fees and Fee Credits. Parties recognize that fees which.may be imposed by the City ("City Fees") upon the Project fall within two categories: (i) fees for processing applications for City actions or approvals ("Processing Fees"); and (ii) fees or other monetary exactions which are established or contemplated under City ordinances or resolutions in effect as of the effective date of the ordinance approving this Agreement and which are intended to defray the costs of public facilities or other amenities related to development projects(e.g.,parks, streets and traffic controls)("Impact Fees"). i. Processing Fees. The City may charge Processing Fees against the Project based upon the lesser of (A) the fees applicable at the time of the Property Owner's application for City action or approval, or (B) the fees applicable as of the Effective Date of approval of this Agreement by the City, in either case subject to the limitations in Paragraph 1.4.iii below. A list of the categories and amounts of Processing Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit"C". ii. Impact Fees. Attached as Exhibit D is the fee schedule ("University Hills Fee Schedule") with categories as previously approved by the City for the Paradise Hills Project. Also attached as Exhibit D is the City's current fee schedule ("Current Fee Schedule"). For the first 504 single family residential building permits issued by the City, City shall use and assess impact fees consistent with the Paradise Hills Fee Schedule. Commencing with the 505th single family residential building permit issued by the City, City shall use the Current Fee Schedule. The Impact Fees set forth in the Current Fee Schedule shall remain unchanged for the first ten(10)years after the Effective Date. Thereafter,the Impact Fees set forth in the Current Fee Schedule shall adjust upward by 2% per year. The Property Owner may defer payment of Impact Fees related to any structure until the time of City's release of utility meters or a period of 18 months from the time building permits were issued,whichever occurs first(i.e., pro rata payment as to each applicable structure as such structure has meters released). For any public facilities constructed by Property Owner which are included in any current Impact Fee list, such fees shall be either credited in lieu by City or if previously paid, then reimbursed to Property Owner. The amount of the credit will be limited to the amount of cost estimated for the improvements as identified in the associated Fee Study regardless of the actual cost. The amount of the credit shall not exceed the amount of the respective fee being credited. In the event that only a portion of a facility identified in the Fee Study is constructed, the credit amount will be a prorated amount that reflects the appropriate portion of the estimated cost of the facility as identified in the Fee Study as determinet4 by the Director of Public Works. A list of the categories and amounts of Impact Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit"D". iii. Fee Categories. The City shall not impose upon the Project any categories of fees or other monetary exactions which are not included within(A) the 5 151 2012-70 Processing Fees as those categories exist as if the date of this Agreement, and (B) the Impact Fees as those categories existed as of the date of adoption of the Project Approvals, unless required by state or federal law or regulations. iv. Mitigation of Impacts. The Parties anticipate that, in addition to.paying_various._feesto_the-City,the---Property-Owner. will develop-various public improvements as components of the Project, or in satisfaction of conditions of approval of the Project. To the extent that the Property Owner develops improvements which mitigate the impacts of the Project upon public facilities or infrastructure that are identified in a Fee Study associated with an Impact Fee,or the Property Owner secures such improvement in a manner reasonably acceptable to the City, the Property Owner shall be entitled to credits against any such Impact Fees in an amount equivalent to the estimated cost for such improvement as identified in the Fee Study as of the date that any such facility or other item of infrastructure is conveyed to and accepted by the City. As to any category of such public facilities or infrastructure in which the Property Owner develops or secures the development of all such public improvements required to serve the Project, the Property Owner shall be entirely exempt from that category of Impact Fees. In particular, in recognition of: (A) The significant permanent public open space, improved parkland and public trails provided for in the Specific Plan. (B) Provided, however, that in the event that, at the time of the first closing of an escrow for the sale and conveyance of each Lot improved with a residential structure within a final approved and recorded subdivision map "Map" within the Project, one or more of the public facilities or infrastructures which have been made conditions in such Map, has not been completed and for which construction has not been bonded, then Property Owner shall pay the pro-rata Impact Fee due on each such closing for such public facility or infrastructure required as a condition for that Map. All such payments shall be held by City in a separate account until the earlier to occur of: (i) Property Owner's completion of such public facility or infrastructure or the bonding thereof, or(ii)City has issued 500 building permits. If the action in(i)above has occurred, then City shall refund to Property Owner all previously paid Impact Fees for such public facility or infrastructure, but if that activity has not occurred by the time set forth in (ii), then City shall be free to use those Impact Fees for the construction of such public facility or infrastructure, and Property Owner shall continue thereafter to pay the pro-rata Impact Fees for such public facility or infrastructure for the balance of first escrow closings for Lots in that Map. (C) In lieu of any park fee otherwise, required by the City to be paid by Property Owner in connection with the approval of a tentative or final map pursuant to local ordinance or Government Code Section 66477, Property Owner may contribute land for, or construction of, or both for any park site and improvements so required, and Property Owner shall receive full credit for the value thereof. 6 152 2012-70 (D) The sewer lift station required to service a portion of the Project shall be acquired by the City (or a sub-agency thereof)through financing provided by either a community facilities district or an assessment district (see Section 1.10) and shall be maintained by the City(or a sub-agency thereof)through a landscape maintenance district or similar assessment district. v. Public Improvements; Reimbursements. It is understood that during Property Owner's development and construction of the Project, Property Owner likely will design, construct and/or install public improvements or facilities (collectively, "Facilities") which benefit other development projects or properties ("Benefited Properties") or the public in general in addition to the Project, including(i) those Facilities for which Property Owner would otherwise be charged an Impact Fee, and (ii) those Facilities which are included in the City's Capital Improvement Program ("CIP"). Included by way of example as Facilities are: (i)the extension of Campus Parkway from its current easterly terminus which is an improvement called for in the City's General Plan,for the benefit of CSU and the Public, and (ii) any other improvements to be constructed at both the intersection of Northpark Boulevard and Campus Parkway and the intersection of Little Mountain Road and East Campus Circle, including all traffic signalization systems. Property Owner shall be entitled to reimbursement and/or waiver of Impact Fees, as provided below, for such Facilities, based on the following methods, and subject to the following limitations: (A) For Facilities which are included in the City's adopted CIP budget. Property Owner will receive a reduction(or credit) in the Impact Fee(s) specifically applicable to that Facility, such reduction to be equal to the amount budgeted ("CIP Budget")by the City for such completed Facilities; and then (B) To the extent the reduction of Impact Fee(s) owed by Property Owner and the funds, if any, held in the CIP for that Facility and disbursed to Property Owner are insufficient to account for the full amount of the CIP Budget for such Facilities, then City shall enter into a reimbursement agreement ("City Reimbursement Agreement") for a term of not less than five (5) years and not greater than ten (10) years with the Property Owner so that future funds from such Reimbursement Agreement(s) and from other funding sources will flow into the CIP and then be disbursed to Property Owner. vi. Maintenance Responsibilities. The Project Approvals include requirements for the construction by Property Owner, from time to time, of certain infrastructure,both on-site to the Property and off-site. The schedule of such infrastructure improvements, including a plan identifying their locations and a matrix of terms for completion of the improvements will be conveyed for maintenance is attached as Exhibit "G." The city's maintenance for items which are outside it's normal responsibility shall be funded partially or wholly through a financing method such as an LMD,CFD,IFD,CSA or similar method. Examples include the Sewer Lift Station, the maintenance of slopes or street lights. 7 153 2012-70 vii. Attached Multifamily Restriction., For purposes of this provision, the portion of the Property upon which the Project will be located (sometimes referred to as the "Project Site)," shall be divided into three (3) areas: "West Area," "Central Area,"and"East Area." The West Area shall consist of Planning Area 1 through Planning Area 7, inclusive, and Planning Area 10. The Central Area shall consist of - - Planning Area 7 through Planning-Area-9;--inclusive,-Planning Area 1-1 through--Planning Area 15, inclusive, and Planning Area 21 and Planning Area 22. The East Area shall consist of Planning Area 16 through Planning Area 20, inclusive. Prior to that date when one single family detached subdivision within the West Area, Central Area or East Area has(A)completed(1)at least 26 residential units and(2)at least one park of.a minimum '/2 acre size,and(B)the City has completed its final inspection,the City shall not be required to issue any building permits for attached multifamily units in that same West Area, Central Area or East Area (other than for senior restricted products pursuant to Civil Code Section 51.3,affordable housing pursuant to applicable provisions at Sections 65580 et seq. and elsewhere in the California Government Code, or student/faculty housing for the Faculty/Staff Housing Parcel(PA 16), each of which is exempt from this restriction). 1.5 Building Permits. The Property Owner shall have the right to obtain building permits necessary for construction of the maximum number of dwelling units and other structures permitted by the Project Approvals, consistent with the other requirements and conditions in this Section 1. 1.6 Processing of Applications: Final Action. The Parties recognize that there are additional approvals required by the Property Owner from the City in connection with carrying out the Project pursuant to the Project Approvals, including but not limited to one or more Maps. During the term of this Agreement, the Property Owner shall have a legally vested right, subject to the proper exercise of discretion (limited by law and Property Owner's vested rights) by the Planning Commission, the Mayor and Common Council, and such other boards and commissions of the City of San Bernardino as required by the law thereof and applicable thereto, to obtain such additional approvals and to carry out the Project in accordance therewith. Any tentative subdivision map prepared for the Project shall, in accordance with Government Code Section 65867.5, comply with the provisions of Government Code Section 66473.7 and shall be extended,from time to time as required,pursuant the Government Code Section 66452.6. i. The City shall diligently and in good faith process in as expeditious a manner as reasonably 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. In no event shall..such processing exceed the time periods set forth in any applicable state laws and local ordinances or regulations. The foregoing requirements are subject to the Property Owner's applications for such additional approvals being in proper form for submittal and processing, including all required documents, information 8 154 2012-70 and fees, based on the City's generally applicable standards in effect at the time of submittal. ii. The Project shall be exempt from any moratorium or ,other restriction on the acceptance, processing or approval of development-related applications — and/or of issuance-of development-related permits;except as-otherwise-required-by state or federal law. The timing of acceptance, processing and approval of such applications and the issuance of such permits shall not be affected by any limitation imposed after the date of approval of this Agreement upon the number of lots or permits which may be approved by the City, including limitations pertaining to particular time periods. Any conditions or requirements imposed by the City in connection with any such approvals or permits shall not exceed those typically imposed by the City in connection with similar approvals for other development projects in the City. iii. In connection with City's commitment to expedited processing of entitlements, maps and plans,the City shall,with the concurrence of Property Owner as to the cost, engage consultants or assign City staff for the purpose of coordinating, facilitating, expediting and/or reviewing subsequent applications by the Property Owner to the City for additional approvals and permits related to the Project. The Property Owner shall bear the costs of compensation of such specially assigned consultants and staff and any other City expenses associated with such persons, except as otherwise provided herein.The consultants and staff assigned to the Project shall at all times be persons having a level of training and experience commensurate with the size and complexity of the Project and the diversity of further approvals and permits required for the Project. 1.7 Timing of Development.The Parties acknowledge that development of the Project will be affected by numerous factors outside the control of the Property Owner, e.g.,general economic conditions,interest rates and market demand. Accordingly,the Parties hereby acknowledge and agree that the Property Owner may develop the Project in such order and at such rate and times as are appropriate within the Property Owner's business judgment,subject to compliance by the Property Owner with the Project Approvals and such other conditions and requirements imposed by the City and not in conflict with this Agreement. In regard to the timing for construction of, or the bonding for the construction of, the facilities identified in sub parts (B) and (C) of Section 1.4 (iv), City shall not be obligated to issue the 500th building permit for construction of a residential structure within the Project until Property Owner has either commenced construction of those facilities or bonded for their construction. All Impact Fees paid by Property Owner for those facilities identified in(B) and(C) of Section 1.4 (iv), up to the 500th building permit, shall be held by the City in a separate account,and shall be refunded to Property Owner upon commencement by Property Owner of construction of those facilities, or upon the posting of bond(s) for construction thereof. 1.8 Public Services. i. Following satisfaction by the Property Owner of the requirements to obtain the necessary permits to carry out each phase of the Project, in accordance with the Project Approvals, the City shall provide to the Project all municipal services required to carry out the Project(including but not limited to services and/or facilities toward which the 9 155 2012-70 Property Owner has paid Impact Fees) which are provided by the City to other similar situated property owners, at a cost no higher basis than is charged to such other property owners, provided that the Property Owner complies with all requirements of the Project Approvals pertaining to construction and/or financing of improvements related to such services, and further provided that there are no physical impediments which make it _ _ .impossible f_or..the City._to.pr-ovide_any_particular service-to-the.P-r-oject.as-determined by the City in the exercise of its discretion. ii. The City recognizes the importance to the Project of extending public transit services to the Project site.The City shall use its best good faith efforts to secure such service. 1.9 [Intentionally deleted.] 1.10 Public Financing. i. The City shall cooperate with the Property Owner in making available means of public financing for acquisition and maintenance of some or all of the public facilities and/or services required to be constructed or provided in connection with the Project and Impact Fees required to be paid in connection with the Project, pursuant to the Project Approvals.Upon application by the Owner,the City shall initiate proceedings for the establishment of one or more public facilities districts, community facilities districts, landscape maintenance districts or other similar financing mechanisms, or, alternatively, shall initiate proceedings regarding participation in one or more such financing mechanisms established by another public agency. The City's obligations in this regard shall be subject to and consistent with the City's ordinances and policies, regarding use of public financing, as well as any applicable provisions of state law, and shall be consistent with the Public Facilities Financing Plan attached hereto as Exhibit`B". ii. In establishing or participating in any special financing district other than a community facilities district, the City shall, to the greatest extent feasible, include in such district all property which will receive any identifiable benefit from the facilities and/or services to be provided or financed thereby. To the extent that it is infeasible to include any such benefited property in a district,the City shall take all reasonable steps to ensure that the Owner or developer of such property is required to enter into a reimbursement agreement with the Property Owner,whereby the Property Owner will recover from such other owner or developer a pro rata share of the cost of the facilities and/or services financed by the district. iii. The Property Owner acknowledges that provision of public financing, as well as other forms of financial assistance which the City may provide to the Project,may cause the Project or portions thereof to become subject to wage payment and contract bidding requirements which are not otherwise applicable to private development projects,and that the City makes no representations as to the likelihood of such requirements becoming applicable to the Project. Property Owner agrees to indemnify,defend and hold City harmless from any claim made regarding the failure to pay prevailing wages (as required by Section 1771 of the California Labor Code) for any public work(as defined in Section 1720 of the Labor Code) constructed by it on the Project. 10 156 2012-70 2. Status of Project Approvals. 2.1 Term of Approvals. The Project Approvals (including tentative subdivision maps)shall remain valid and in effect for the entire Term of this Agreement, and the_City s_. i take no Lion to rescind, revise or other—Wise modify the ProJec —Approvals except at the request of or with the consent of the Property Owner, or as otherwise required by law. 2.2 Consistency of Land Use Designations. The Parties recognize the importance of maintaining the planning and design integrity of the Project and of ensuring that there is compatibility between those features of the Project and the surrounding community to the greatest extent feasible. Accordingly, the City shall not modify any land use designation outside the Project boundaries in such a way as to preclude or interfere with all or any part of the Project without proper notice of such proposed modification to the Property Owner. 3. Term of Agreement. 3.1 Initial Term Extensions. The term ("Term") of this Agreement shall commence on the Effective Date and shall,subject to the provision below in 3.1.1, extend for an initial period of twenty(20)years thereafter("Expiration Date"). 3.1.1 Completion of Certain Plans and Improvements. Pursuant to the "5 Year Performance Requirement" plan, more particularly described in Exhibit "F," within the first five (5) years after the Effective Date, off-site rights-of-way must have been acquired; the "deemed complete" construction plans for the backbone infrastructure, including Campus Parkway and Little Mountain, with adjacent improvements shall be submitted; and the "deemed complete" plans for the first phase of single family detached structures with an associated park,shall have been submitted to the City. 3.1.2 First Extension. Subject to the proviso that the last annual review performed by the City prior to the Expiration Date,pursuant to Section 10 below,has determined that the Property Owner is in good-faith compliance with the terms of this Agreement, the Expiration Date shall automatically be extended for an additional period of five(5)years("First Extension"). 3.1.3 Second Extension. Subject to the proviso that the last annual review performed by the City prior to the expiration of the First Extension, pursuant to this Section 3.1, determines that the Property Owner is in good-faith compliance with the terms of this Agreement,then the Expiration Date shall automatically be extended for an additional period of five(5)years("Second Extension"). 3.1.4 Property Owner Response; Special Circumstances. In the event City has concluded, either in the last annual review for the First Extension or for the Second Extension,that Property Owner is not in good-faith compliance with the terms of this Agreement, City shall give Property Owner adequate written notice thereof(not less than 30 days notice) and Property Owner shall be entitled to adequate opportunity to advise the City 11 157 2012-70 of special circumstances which should be considered in any proposal to terminate this Agreement. Such special circumstances might include, by way of example, the existence of public or private funding which relies on completion of the Project, commitments made to other public agencies or to the DRE,commitments made to CSU, and commitments made to purchasers of dwellings within the Project. 3.2 Project Completion. If not already terminated by reason of any other provision hereof, this Agreement shall automatically terminate upon the occurrence of all of the following: (i) total build-out of the Project pursuant to the Project Approvals and any amendments thereto; (ii) the issuance of all occupancy permits for improvements on the Property; (iii) acceptance by the City of all dedications of public rights-of-way and public improvements;(iv)documented transfer and acceptance for the purposes intended of all parts of the Project to be transferred to third party entities per the Project Approvals; specific reference is hereby made to transfers to be made to California State University San Bernardino for purposes' of open space and for faculty housing and ownership of the club house and pool to the master homeowner's association; (v) Completion and recording as a deed restriction and a covenant running with the land of conditions, covenants, and restrictions (CC&R's) applicable to all single-family and multi-family residences in the Project; such CC&R's shall be submitted to the City for approval prior to recordation and shall include a provision that the City may, but shall not have the obligation to, enforce any provision contained therein and shall be entitled to recovery of its costs; the CC&R's shall expressly state that each lender, upon default of the property owner shall, upon taking possession of the property, or when notified by the City or any holder of a right under the CC&R's that the property has been abandoned by the property owner, whichever notice occurs earlier, shall be bound by all covenants thereof with respect to the maintenance and the payment of any fees or association dues applicable to the property; and (vi) establishment of one or more home owner's association ("Association(s)") or other entities for the collection of costs of maintenance of the non-public recreational facilities and lands of the Project. There shall be a master association which extends to all residential properties, single-family and multi-family in the Project. There may be established such lesser associations as deemed appropriate by the Property Owner.The by-laws of the association(s) shall be submitted for approval by the City before recordation or filing with the appropriate authorities of the State. The by-laws and rules of such association shall be subject to the conditions respecting the City as set forth above for CC&R's. Where all such conditions have been satisfied with respect to any phase of the Project, consisting of one or more Planning Areas designated in the Specific Plan,then this Agreement shall continue to apply to that phase until occurrence of the above-described conditions for the entire Project, except upon written agreement of the Property Owner and the City.As used herein, "total build-out" shall mean the completion of all construction in the Project, of all buildings, structures, infrastructure, improvements, landscaping and associated amenities contemplated or permitted by the Specific Plan, all other infrastructure required by the Project, and performance by the Property Owner and the City of all of their respective obligations hereunder. 4. Binding Effect of Agreement. 12 158 2012-70 4.1 Covenant. This Agreement shall bind,and inure to the benefit of, the respective Parties and their successors in interest, including their heirs, representatives, assigns, partners and investors, and all other persons and entities acquiring any rights or interests in the Property or any portion thereof,whether by operation of law or in any other manner whatsoever. All of the provisions of this Agreement shall be enforceable as _equitable-servitudes-and-constitute-covenants-running-with the-land-pursuant to-Seetions 1460 et seq.of the California Civil Code. 4.2 No Property Interest. Nothing herein shall be construed as a dedication or transfer of any right or interest in,or as creating a lien with respect to, title to the Property. 5. Assignment. 5.1 Right of Assignment. The Property Owner may assign its rights and obligations hereunder to any other person or entity ("Assignee"), at any time during the term of this Agreement, provided that: (i) (y) such assignment shall occur in connection with sale,hypothecation or other transfer of a legal or equitable interest in the Property or a portion thereof,including any foreclosure of a mortgage or deed of trust or a deed in lieu of foreclosure, or in connection with formation of a new entity which is the assignee and in which the Property Owner is a partner, member or other form of co-owner, or (z) such assignment results from the formation,by Property Owner, of a new legal entity, in which Property Owner has an interest,which will own all or a portion of the Property; and(ii)the assignee demonstrates the following,to the reasonable satisfaction of the City Manager: (a) the ability to perform or secure any public improvement obligations required by the City in connection with the Project phase or other interest being transferred, as identified in the conditions of approval of the applicable subdivision map or elsewhere in the Project Approvals; (b) the financial capabilities to meet the obligations of this Agreement as they relate to that portion of the Project assigned to Assignee; and (c) its expertise in managing projects similar in size to the Project phase or other interest being assigned. The City shall give the Property Owner written notice of its satisfaction or dissatisfaction with the proposed Assignee within thirty(30)calendar days of receipt by the City of the information the City requires pursuant to this Section. The City's failure to timely communicate to Property Owner its approval or disapproval shall result in City being deemed to have approved. The City shall, to the extent permitted by law, treat all such information as confidential and proprietary,to be made available solely to City officials and staff required to review it in order to carry out the purposes of this paragraph. 5.2 Notice Requirement. The Property Owner shall give the City notice of any such assignment,and the Assignee shall provide the City with notice acknowledging its acceptance of its obligations hereunder as a successor in interest to the Property Owner. Upon such assignment, the acceptance thereof by the Assignee and provision of the required notices to the City by both the Property Owner and the,Assignee, the Property Owner shall be relieved of its rights and obligations hereunder to the extent that such rights and obligations have been specifically transferred to and accepted by the Assignee. Only 13 159 2012-70 upon compliance with all of conditions set forth in Sections 5.1, 5.2 and 5.4 shall there be an assignment hereunder(the"Assignment"). 5.3 Compliance with Project A..rovals. Each Assignee acquiring all or any portion of the Property, and thus becoming an Assignee of the rights and obligations in this-Agreement-to-the tent-of-such-property-aequisitio shall-be-entitled-to-each-and all of the rights, and be subject to each and all of the conditions and obligations, set forth in, and established by,the Project Approvals. Subsequent to an Assignment under this Section 5.2, all references in this Agreement to "Property Owner" shall mean and refer, instead, to the Assignee as such references pertain to a portion of the Project acquired by the Assignee. 5.4 Effect of Assignment Effect of Default. Upon Assignment and approval of that Assignment as provided in Section 5.1, such Assignee shall be entitled to all of the rights and be subject to all of the obligations as set forth in this Agreement, as such rights and obligations apply specifically, either wholly or pro-rata, to that portion of the Project to which Assignee has acquired an interest as the result of such Assignment. Such rights and obligations shall include, by way of example only, the obligations concerning Impact Fees and the rights concerning waivers and refunds,each and all as they apply to that portion of the Project so assigned. Any default by the Property Owner in the terms or conditions of this Agreement or in the Project Approvals, existing at the time of assignment of any of its rights and obligations hereunder, shall remain the obligation of the Property Owner, unless the Assignee expressly accepts such obligation and the City expressly approves the assignment of such obligation. Any default by the Assignee in the terms or conditions of this Agreement or in the Project Approvals, occurring after the time of assignment of any rights and obligations of the Property Owner to the Assignee, shall be solely the responsibility of that Assignee, and shall not be deemed to be a default by either the Property Owner or any other Assignee and shall not affect the rights occurring to any other portion of the Property pursuant to this Agreement or the Project Approvals. 6. Notices. 6.1 Form of Notice. AU notices between the City and either the Property Owner or an approved Assignee given pursuant to the provisions of this Agreement, shall be in writing and shall be given by personal delivery, facsimile or mail. City shall have no notice obligation to any party otherwise bound to this Agreement pursuant to Section 4.1 above except as specifically set forth herein or as otherwise agreed in writing. Notice by personal delivery or facsimile shall be deemed effective upon the delivery of such notice to the Party for whom it is intended at the address set forth below (or, in the case of an Assignee,at the address specified by such Assignee in a written notice to the City).Notice by mail shall be deemed effective two (2) business days after depositing such notice, addressed as set forth below, properly sealed, postage prepaid, registered or certified, return receipt requested, with the United Stated Postal Service, regardless of when the notice is actually received.The addresses to be used for purposes of notice shall be: To City: City of San Bernardino Attn: City Manager 14 160 2012-70 300 N. "D" Street,3rd Floor San Bernardino,CA 92418 Facsimile: (909)384-5080 With a copy to: City Attorney --- Ci ef-San- ernarr o — __ 300"D" Street,6th Floor San Bernardino,CA 92418 Facsimile: (909)384-5238 To Property Owner: Inland Communities Corp. Attn:Jim Ahmad,President 7536 Lolina Lane Los Angeles,CA 90046 Facsimile: (323)874-8800 With a copy to: William C. Holzwarth,Esq. Dzida,Carey&Steinman 3 Park Plaza, Suite 750 Irvine,CA 92614 Facsimile: (949)399-0361 6.2 Change of Address. Any Party may change the address to which notices are to be sent at any time by giving written notice of such change in the manner provided above. 7. Amendment of Agreement. 7.1 Formal Amendment. This Agreement, including the term hereof, may be amended from time to time by mutual consent of the Parties, in accordance with the provisions of Municipal Code 19.40 and Government Code Section 65868. 7.2 Clarification. The foregoing notwithstanding, the Parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. If and when the Parties find that changes or adjustments are necessary or appropriate,which changes do not necessitate a formal amendment of the Agreement as determined by City in the exercise of its discretion,they shall, unless otherwise required herein or by law, effectuate the changes or adjustments as follows: 7.2.1 Community Devlopment Director Authority, subject to appeal permitted by the Municipal Code shall apply to the following requests for change or modification: 15 161 2012-70 (a) Approval of minor site plan revisions; (b) Changes in Project infrastructures; (-c) Producttypes; (d) Annual review and approval of the Mitigation Monitoring and Reporting Program; (e) Minor revisions to Design Guidelines; (f) Density transfer between Planning Areas without exceeding to top number of units allowed by the approved Specific Plan. 7.2.2 Plannin L Commission Authori sub'ect to a• •eal •ermi -d b Municipal Code shall apply to the following requests for change or modification: (a) Change in total number of proposed Units; (b) Approval of major site plan revisions; (c) Major revisions to Design Guidelines; (d) Minor revisions to Land Use Plan when uses could be considered accessory to approved uses; and (e) Increase/decrease in number of lots. 7.2.3 City Council Authority shall apply to the following requests for change or modification: (a) Alteration of the permitted uses of the Property; (b) Increase in the intensity of use or the number of lots;and (c) Deletion of a requirement for the reservation or dedication of land for public purposes except for minor boundary adjustments approved by the City Planning and Building Services Department. 8. Interpretation and Enfgrcement of Agreement. 8.1 Complete Agreement. This Agreement represents the complete understanding between the Parties, and supersedes all prior agreements, discussions and negotiations relating to the subject matter hereof. No amendment, modification or 16 162 2012-70 cancellation of this Agreement shall be valid unless in writing and executed by the Parties, other than pursuant to Section 11 below. 8.2 Severability. If any provision of this Agreement is determined to be invalid or unenforceable,the remainder of the Agreement shall not be affected thereby and shall---remain- in-full-force-and-effeet, unless-sueh--invalidation renders-any-remaining provisions impossible or impractical to enforce. 8.3 Conflict with State or Federal Laws. In the event that any state or federal laws or regulations, enacted after the effective date of this Agreement, prevent or preclude compliance by either Party with any provisions hereof, such provisions shall be modified or suspended to the extent necessary to comply with such state or federal laws or regulations. 8.4 Applicable Law. This Agreement shall be construed,interpreted and enforced in accordance with the laws of the State of California and any applicable laws of the United States of America. 8.5 Prevailing Part . In the event of any action or proceeding brought by either Party against the other to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover reasonable costs and expenses, including attorneys' fees, incurred in connection therewith, including cost of City Attorney and staff. 8.6 Defense of Agreement. In the event of any action or proceeding brought by a third party, whether a private or governmental person 'or entity, challenging the validity of this Agreement or any provisions hereof, the City shall actively defend against any such action or proceeding, including taking all reasonable measures to protect the enforceability of the Agreement. The Property Owner shall pay all actual, reasonable legal expenses associated with such defense. The Parties shall cooperate in defending against any such challenge. The City shall consult regularly with the Property Owner regarding such defense and shall notify the Property Owner of any significant developments relating to the action or proceeding. During the entire course of any such challenge, including any review up to a court of final jurisdiction, this Agreement shall remain in full force and effect. 8.7 Authority of Signatories. The Parties represent and warrant that the persons signing this Agreement on their behalf have full authority to bind the respective Parties. 8.8 Indemnification. The Property Owner agrees to and shall defend, indemnify and hold harmless the City and its officers, employees, agents and contractors, against any and all claims, damages, awards, actions or causes of action and expenses (including, but not limited to, attorneys' fees and costs of litigation) to which the City and its officers, employees, agents and contractors may be subjected by reason of the City's approval of this Agreement, or any work done or omission made by the Property Owner 17 163 2012-70 and its agents, officers or employees, in connection with, arising out of or resulting from the approval or performance of this Agreement. 8.9 Waiver and Delays. Failure by either Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or failure by either-P-ar-ty-to-exercise-its-rights-upon-a-default bythe-other arty shall-not:constitute a waiver of any right to demand strict performance by such other Party in the future. 8.10 Third Party Actions. Nonperformance by either Party shall not be excused because of a failure of a third person, except as specifically provided herein. 8.11 Force Majeure. Neither Party shall be deemed to be in default for 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 or other labor difficulties, government agencies and their regulations, or other causes beyond the reasonable control of the Party claiming the force majeure. If any such event shall occur, the term of this Agreement and the time for performance by the Property Owner of any of its obligations hereunder shall be extended by the period of time that such events prevent it from proceeding with development of the Project. 9. Effect on Property. 9.1 Estoppel Certificate. Any Party may, at any time and from time to time, deliver written notice to another Party requesting certification in writing that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Agreement has not been amended, or, if so amended, identifying the amendments; and (iii)the requesting Party is not in default in the performance of its obligations under this Agreement, or, if in default,describing the nature and extent of any such default. A Party receiving a request hereunder shall execute and return such certificate within thirty (30) calendar days following the receipt thereof. The City Manager of the City shall have the authority to execute any such certificate requested by the Property Owner. The City acknowledges that a certificate hereunder may be relied upon by transferees and mortgagees. 9.2 Release of Lots from Agreement. Subject to City's fmal inspection of the Lot and structures, promptly upon the written request of the Property Owner, the City shall execute a document, in a recordable form, releasing any Lot for which a final Map has been recorded and which has been sold or leased to a retail purchaser, from the effects of this Agreement,and deliver such document to the Property Owner. 10. Periodic Review of Compliance with Agreement. 10.1 Annual Review., This Agreement shall be subject.to annual review, pursuant to California Government Code Section 65865.1. Within thirty (30) calendar days following each anniversary of the date of recording of this Agreement, the Property Owner shall submit to the City Manager of the City written documentation demonstrating good-faith compliance with the terms of this Agreement ("Annual Report"), to the extent that the 18 164 2012-70 Property Owner has taken or is required to take any action pursuant to this Agreement. Failure by the Property Owner to submit the Annual Report in a timely manner shall not itself constitute a breach of this Agreement, unless the City has first given the Property Owner a minimum of thirty(30)calendar days notice thereof and the Property Owner fails to submit the Annual Report within thirty(30)calendar days after receipt of such notice. As of --- the Effective-Date;City-shall-establish-a-reasonable-fee-for-its-annual-review-and the Annual- Report. Such annual fee may be adjusted every 5th anniversary of the Effective Date to cover increased costs incurred by the City for such annual review. 10.2 Contents of Report. The Annual Report and any supporting documents shall describe (i) any permits or other approvals which have been issued or for which application has been made and(ii) any development or construction activity which has commenced or has been completed since the recording date or the date of the preceding annual review. The City shall review all the information contained in such report in determining the Property Owner's good faith compliance with this Agreement. 10.3 Waiver. The City does not waive any claim of defect in performance by the Property Owner if, at the time of an annual review, the City does not propose immediately to exercise its remedies hereunder. However, in the event that the City, following receipt of the Annual Report for any year, fails to review the information contained therein and/or to determine the Property Owner's good faith compliance with this Agreement within 90 calendar days following date of such receipt, the Property Owner shall be deemed to be in good faith compliance with regard to the period covered by that Annual Report. 11. Violations. 11.1 Violation by Property Owner. i. The Property Owner shall be deemed in violation of the terms of this Agreement if a finding and determination is made by the City Manager,upon the basis of substantial evidence, however received, that the Property Owner has not complied with one or more of the material terms or conditions of this Agreement.A default on the part of an Assignee after an Assignment pursuant to Section 5 above shall not constitute a violation of this Agreement by the Property Owner. ii. If the City Manager believes the Property Owner to be in violation of this Agreement,the City Manager or his or her designee shall give the Property Owner thirty (30) calendar days written notice specifying the nature of the alleged violation and,when appropriate,the manner in which the violation may be satisfactorily cured.Failure or delay in giving notice of a violation shall not constitute a waiver of such violation. iii. The Property Owner may appeal the allegation of violation by filing a notice of appeal with the City Clerk,within the thirty(30)calendar day cure period described in the preceding paragraph. The Property Owner's appeal shall be placed on the agenda of the next regularly scheduled meeting of the City Council,which shall be an open meeting but not a public hearing. If the City Council finds that a violation has occurred and is continuing, the Property Owner shall be given sixty calendar (60) days within which to 19 165 2012-70 cure such violation; provided that such time period may be extended by the City Manager for not to exceed 180 calendar days, upon a determination that the Property Owner is engaged in making good faith efforts to cure the violation. At the next City Council meeting following expiration of the period allowed by the City Council for curing the violation,or any extension thereof, the City Council shall set forth by motion or resolution its determination-as to-W-the-continuation-of-the-violation-and(ii)-any-aetion-to-be taken, which action may include amendment or termination of this Agreement. Any action to terminate shall be in the form of a resolution and shall be supported by written findings, iv. After proper notice and expiration of the cure period without appeal, cure, or commencement of substantial effort toward a cure by the Property Owner, the City may take unilateral action by adoption of a resolution with written findings, to terminate or amend this Agreement. 11.2 Violation by City. i. The City shall be deemed in violation of the terms of this Agreement upon failure of the City to carry out any of its obligations hereunder. ii. If the Property Owner believes the City to be in violation of this Agreement, the Property Owner promptly shall notify the City, through its Planning Official, to that effect, setting forth the grounds upon which a violation is claimed, facts in support of such grounds, and the means through which such violation may be cured. The City shall have thirty (30) calendar days following the date of receipt of the notice within which to take action to deny the claim, cure the violation or undertake substantial action toward the cure. iii. If the action of the City is unsatisfactory to the Property Owner,the Property Owner may make an appeal to the City Council,provided that,within ten(10)days following the date of receipt of the notice of denial of the claim, or within ten (10) days following the date of expiration of the cure period described in the preceding paragraph,whichever occurs first, the Property Owner files with the City Clerk a notice of appeal to the City Council. The City Council thereafter shall consider this matter on the agenda of its next regularly scheduled meeting, which shall be an open meeting but not a public hearing,at which the Property Owner may present information regarding the alleged violation. Based upon the information presented by the Property Owner, the City Council shall make a determination as to whether the City is in violation of this Agreement, as alleged by the Property Owner. 11.3 Legal Enforcement. Subject to the prior exhaustion of all administrative remedies set forth in Sections 11.1 and 11.2 above, each party hereby waives all rights save for the right, of specific performance or othe"r equitable remedy against the other hereunder and otherwise specifically set forth herein. This specifically constitutes an expression of the intent of the Property Owner, its heirs, successors and assigns, joint venturers and all others bound hereby, and the City to be a waiver of any alleged Constitutional violations that may be waived by the Parties and a waiver of any and 20 166 2012-70 all contractual damages of whatever source or type. Any such legal action shall be brought in the Superior Court of San Bernardino County, State of California, or in an appropriate federal court. 11.4 Mortgagee Protection. The Parties hereto agree that this Development-Agreement hall-not-prevent-or-limitrth Property-Owner,in-anym er,at Property Owner's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon by any mortgage, deed of trust or other security device. The City acknowledges that the lender(s) providing such financing may require certain Development Agreement interpretations and modifications and agrees, upon request, from time to time, to meet with the Property Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. The 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 Development Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust or any successor or assign thereof, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a person or entity who obtains title by deed-in- lieu of foreclosure ("Mortgagee") on the Property shall be entitled to the following rights and privileges:. i. Mortgage Not Rendered Invalid. Neither entering into this Development Agreement nor a breach of this Agreement shall defeat, render invalid, diminish,or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. No Mortgagee shall have an obligation or duty under this Development Agreement to perform the Property Owner's obligations, or to guarantee such performance, prior to taking title to all or a portion of the Property; provided, however that a Mortgagee shall not be entitled to a building permit unless the Mortgagee satisfies all of the requirements under this Development Agreement, the Applicable Rules and any Future Approvals granted by the City. The above notwithstanding, the Mortgagee shall be on notice of and shall act in compliance with the requirement for a.homeowner's association and CC&R's described herein. ii. Request for Notice to Mortgagee. The Mortgagee of any mortgage or deed of trust encumbering the Property,or any part thereof, who has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive a copy of any Notice of Default delivered to the Property Owner.Failure of the City to provide notice to the Mortgagee as provided here shall not constitute a limitation on the City's ability to proceed against the Property Owner for a cure. iii. Mortgagee's Time to Cure. The City shall provide a copy of any Notice of Default to the Mortgagee within ten(10)calendar days of sending the Notice of Default to the Property Owner., The Mortgagee shall have thee right, but not the obligation,to cure the default for a period of thirty(30)days after receipt of such Notice of Default.Notwithstanding the foregoing, if such default shall be a default which can only be remedied by such Mortgagee obtaining possession of the Property, or any portion thereof, and such Mortgagee actively seeks to obtain possession, such Mortgagee shall have until 21 167 2012-70 thirty(30)days after the date of obtaining such possession to cure or,if such default cannot reasonably be cured within such period, to commence to cure such default, and thereafter diligently prosecute such cure to completion. iv. Cure Rights. Any Mortgagee who takes title to all of the Property, or any part-thereu�pursuant-to foreclosure of the-mortgage-or deed of trust, or a deed in lieu of foreclosure, shall succeed to the rights and obligations of the Property Owner under this Development Agreement as to the Property or portion thereof so acquired. Such Mortgagee shall not be liable for defaults or monetary obligations of the Property Owner arising prior to acquisition of title to the Property by such Mortgagee, except that, any such Mortgagee shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under this Development Agreement for the Property, or portion thereof acquired by such Mortgagee, have been paid to City and until all conditions, including installation of infrastructure and other improvements,have been complied with. 12. Relationship of Parties. In performing its obligations hereunder, the Property Owner is acting under this Agreement as an independent contractor and not as an agent or employee of the City. Further, nothing in this Agreement shall be construed as creating between the Property Owner and the City a partnership or joint venture for any purpose. 13. Exhibits. All exhibits referred to in, and attached to, this Agreement are incorporated herein by such reference. 14. Adoption of Agreement. Adoption of this Agreement by the City shall be by ordinance. 15. Recording of Agreement. Within ten (10) days following the adoption by the City of the ordinance approving this Agreement, or any subsequent amendment hereof, the City Clerk shall file a fully executed copy hereof with the County Recorder of San Bernardino County, State of California. Concurrently with the recordation of this Agreement, City and Property Owner shall cause the recordation of a document revoking Development Agreement No. 91-03 and all application of the terms thereof to the Property. [BALANCE OF PAGE INTENTIONALLY LEFT BLANK.] 22 168 2012-70 IN WITNESS WHEREOF, the Parties have executed this Agreement, to be effective as of the date set forth in the first paragraph hereof. "PROPERTY OWNER" "CITY" FONTANA-CORNERS 11 l—L:P., CITY-OF-SAN BERN—RDINO, a California limited partnership a municipal corporation By: ARA.DI,LTD., a Nevada corporation, its General Partner By: By: Patrick J.Morris,Mayor General Partner APPROVED AS TO LEGAL FORM. Henry Empeno, Senior Deputy City Attorney ATTEST: Rachel.Clark,City Clerk 23 169 2012-70 State of County of On ,2012, before me, , a Notary Public in and for said state, personally appeared , who proved to me on the basis of -----satisfactory--evidence-to-be-the-person(-s)—whose-name(s)-is/are-subscribed-to-the-within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of _that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California County of San Bernardino On , 2012, before me, , a Notary Public in and for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 24 170 2012-70 EXHIBIT"A" LEGAL DESCRIPTION OF PROPERTY • WC11130610.0001\405311.312/23/2011 171 2012-70 EXHIBIT"A" LEGAL DESCRIPTION OF PROPERTY PARCEL 1 (Assessor's Parcel No.265-041-12): THAT PORTION OF THE EAST 1/2 OF SECTION 5, LYING WITH KTHE INE OFTIEIE MUSCUPIABE RANCHO AND OF THE EAST 1/2 OF SECTION 8,BOTH OF TOWNSHIP 1 NORTH,RANGE 4 WEST,SAN BERNARDINO BASE AND MERIDIAN,IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S. GOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO, LYING WESTERLY OF THE WEST LINE OF THE LAND CONVEYED TO C.F.MARTIN BY DEED RECORDED FEBRUARY 14, 1922, IN BOOK 740,PAGE 199 OF DEEDS AND NORTHERLY OF THE SAN NORTH LINE BERNARDINO OF COUNTY FLOOD CONNTTRROL DISTRICT,RECORDED APRIL 3,1940, IN BOOK 1415,PAGE 37,OFFICIAL RECORDS. PARCEL 2(Assessor's Parcel Nos.265-051-12 and 265-051-13): THAT PORTION OF THE WEST 1/2 OF SECTION 4, LYING WITHIN THE LINE OF MUSCUPIABE RANCHO AND THE WEST 1/2 OF SECTION 9, BOTH OF TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN.BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S. GOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO, DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE ACCORDING TO THE PERRIN SURVEY, SAID CORNER BEING NORTH 89° 03' WEST, 516.90 FEET • FROM MUSCUPIABE RANCHO,CORNER M-28; THENCE SOUTH 89°03'EAST,516.90 FEET TO SAID CORNER M-28; THENCE SOUTHERLY 173.17 FEET ON THE EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; THENCE SOUTHEASTERLY, 785.30 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO'A POINT WHICH IS DISTANT NORTH 62°41' WEST, 195.51 FEET FROM THE NORTHEAST CORNER OF THE LAND DESCRIBED AS PARCEL NO. 4 OF THE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT, RECORDED APRIL 23,1940,IN BOOK 1415,PAGE 37,OFFICIAL RECORDS; THENCE ON THE BOUNDARY LINE OF SAID PARCEL 4,THE FOLLOWING COURSES AND DISTANCES; SOUTH 02° 11'EAST,526.41 FEET; THENCE SOUTH 25°30'WEST,581.59 FEET; THENCE NORTH 38°31'WEST,1966.20 FEET; THENCE NORTH 01°24'30"EAST,674.55 FEET; Tnland.UHS9.De Ag.v2 172 2012-70 THENCE NORTH 39° 05' WEST, 85.12 FEET TO AN ANGLE POINT THEREIN, SAID POINT ALSO BEING ON THE EASTERLY LINE OF THE LAND CONVEYED TO C. F. MARTIN,RECORDED FEBRUARY S14 922,BOOK 740,PAGE 199 OF DEEDS; O C. F, THENCE NORTHERLY ALONG LAST SAID EASTERLY LINE,NORTH 41°09'EAST, 50 FEET; THENCE NORTH 10°58'WEST,127.05 FEET; THENCE NORTH 41°08'EAST,241.56 FEET; THENCE NORTH 22°36'EAST,626.13 FEET TO THE POINT OF BEGINNING. CONTROL DISTRICT IN DEED RECORDED T SEPTEMBER BERNARDINO 956, IN BOOK FLOOD PAGE 396, OFFICIAL RECORDS. PARCEL 3(Assessor's Parcel No.265-061-16): THAT PORTION OF SECTION 9, LYING WITHIN THE LINE OF THE MUSCUPIABE RANCHO,IN TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,STATE OF CALIFORNIA,BEING A PORTION OF SAID MUSCUPIABE SECTIONAL LINES ACROSS SAID RANCHO,DEFINED DESCRIBED AS FOLLOWS:GOVERNMENT BEGINNING AT A CORNER M-28, ON LINE 27-28 RANCHO MUSCUPIABE ACCORDING TO THE PERRIN SURVEY; THENCE SOUTHERLY 1786.17 FEET ON THE EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; THENCE SOUTHEASTERLY, 980.81 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ON LAST SAID NORTHEAST LINE, SOUTH 62° 41' EAST,TO THE NORTHEAST CORNER OF THE LAND CONVEYED TO THE SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED MAY 14, 1957,IN BOOK 4229,PAGE 497,OFFICIAL RECORDS; THENCE ON THE NORTHERLY LINE OF THE LAND IN THE DEED LAST MENTIONED,SOUTH 60° 03'27"WEST,563.37 FEET; THENCE NORTH 74°05'48"WEST, 1143.34 FEET TO A POINT IN THE EASTERLY LINE OF THE LAND DESCRIBED AS PARCEL 4 IN DEED TO SAID FLOOD CONTROL DISTRICT,RECORDED APRIL 1, 1940,IN BOOK 1415,PAGE 37, OFFICIAL RECORDS, SAID POINT BEING SOUTH 03°S0'EAST, 816.73 FEET FROM THE INTERSECTION OF SAID NORTHEASTERLY RANCHO LINE; • THENCE ON LAST SAID EASTERLY LINE,NORTH 03° 50'WEST 816.73 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 4(Assessor's Parcel No.265-051-09): Snland.UHSB.ruvAv.v2 173 2012-70 THAT PORTION OF SECTIONS 4,5, 8 AND 9,TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO, 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° 03' WEST, 516.9 FEET FROM CORNER NO. 28; THENCE SOUTH 22°36'WEST,626.13 FEET TO CORNER NO.2; THENCE SOUTH 51°08'WEST,241.56 FEET TO CORNER NO.3; THENCE SOUTH 10°58'EAST, 127.05 FEET TO CORNER NO.4; THENCE SOUTH 41°09'WEST,283.26 FEET TO CORNER NO.5; THENCE SOUTH 16°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 27-38 MUSCUPIABE RANCHO; THENCE SOUTH 89° 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° 53' EAST ALONG WE SOUTH LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST CORNER OF SAID MARTIN LAND; THENCE NORTH 16° 12' EAST ALONG THE EAST LINE OF SAID MARTIN LAND, 291.68 FEET; THENCE SOUTH 67°12'WEST,345.0 FEET; THENCE SOUTH 52°03'WEST, 174.27 FEET TO A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 0°07'EAST ALONG SAID WEST LINE,40.0 FEET TO THE POINT OF BEGINNING. PARCEL 5(Assessor's Parcel No.265-021-13): Inland,UHSB.DevAg.v2 • 174 2012-70 GOVERNMENT LOT 16 AND THAT PORTION OF GOVERNMENT LOTS 14 AND 1 5, SECTION 5, TOWNSHIP 1 NORTH,RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT __.-------.TOW-NSIIIP-PLAT T-HEREOF,AP-PROVED-BY THE-SURVEY_OR_GENERALIIN RIME-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° 14' 40"EAST, 1035.33 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 82°11'40"EAST,720.00 FEET; THENCE NORTH 0° 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 15,1093 FEET,MORE OR LESS, TO THE SOUTHEAST CORNER OF SAID GOVERNMENT LOT 16,SAID CORNER BEING ON THE SAID MUSCUPIABE RANCHO LINE; Inland.tUHSB.DevAgr.v2 175- 2012-70 THENCE NORTH 89°WEST ALONG THE COUNTY 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°EAST 883.9.FEET FROM SAID MONUMENT NO.27 OF RANCHO MUSCUPIABE; THENCE NORTH 0°21'WEST,560.34 FETE TO THE POINT OF BEGINNING. PARCEL 6(Assessor's Parcel Nos.265-011-07 and 265-011-08): THE NORTH 1/2 OF THE SOUTHEAST 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 CITY OF SAN BERNARDINO, OFFICIAL PLAT SA IAL LATT OF SAID LAND APPROVED BY THE SURVEYOR GENERAL DATED JUNE 24, 1898. PARCEL 7(Assessor's Parcel No.265-011-06): GOVERNMENT LOT 5, SECTION 4,TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO,STATE OF CALIFORNIA,ACCORDING TO THE OFFICIAL PLAT OF SAID LAND APPROVED BY THE SURVEYOR GENERAL DATED JUNE 24, 1898. • • Intand.0 rSB.DevAgr.v2 176 _._.. 2012-70 EXHIBIT"B" PUBLIC FACILITIES FINANCING PLAN WCH\30610.00011405311,312/23/2011 '177 2012-70 EXHIBIT"B" MELLO-ROOS COMMUNITY FACILITIES DISTRICT PUBLIC FACILITIES FINANCING PLAN This Public Facilities Financing Plan("Financing Plan")outlines the basic terms and conditions pursuant to which the City and the Property Owner will cooperate to establish one or more special districts or authorities,as provided under California law(collectively, "Special District") for the acquisition and/or construction of public improvements and payment of fees applicable to the Project.The principal goals of the Financing Plan are to: (i)establish reasonable certainty as to how the Special District shall be implemented;and(ii)provide for the issuance of Special District bonds in series order to minimize carrying costs. Conside _lion of Community Facilities Districts.The City Council will consider the use of community facilities districts(hereinafter"CFD's")as well as other financing methods to assist certain types of residential,and/or non-residential development,where,in the City's opinion, the financing of public facilities satisfies a public need,while having the financial security to reasonably assure a sound investment for potential bondholders and minimize any City exposure to liability for actions taken on behalf of public financing projects. CFD financing will be permitted for public improvements that will benefit the expected long-term property owners,and whose useful life will be equal to or greater than the longer of(a)five(5) years or(b)the term of the bonds. Boundary.The Special District boundary shall encompass solely the Project. If requested by the Property Owner, the Special District may contain"multiple improvement areas"(?). Consistency with General Plan.The proposed development project must be consistent with the City's General Plan and have secured appropriate land use approvals from the City to allow for the implementation of the development of the area as contemplated. Ownership of Facilities. Facilities which, upon completion, are to be owned by public agencies shall be considered public facilities. p►uthorized Facilities.The Special District shall be authorized to finance the costs of construction of all on-site and off-site public improvements("Facilities"or"Facility"),and costs associated with formation of the District, required by the Project's condition of approval or this Agreement("Costs"). Costs of the Facilities to be constructed by the Property Owner that are eligible to be financed in the Special District are as follows: • The actual costs for the construction of a Facility, including labor, materials and equipment costs; 1 178 2012-70 • The costs incurred in designing and preparing the plans and specifications for a Facility; ._e_es paid for obtaining permits, licenses or other governmental approvals for a Facility; • Costs of construction management and supervision; • Professional costs associated with the Facility, such as engineering, inspection, construction staking, materials and testing and similar professional services;and • Costs directly related to the construction of a Facility,such as costs of payment, performance and/or maintenance bonds and Insurance costs. Discrete components of the Facilities consisting of usable segments and various costs categories relating to such segments may be funded by the Special District. Examples of cost categories consisting of discrete components are as follows:- Streets • Planning, design, engineering and permitting; • Grading; • Paving; • Sidewalks;and • Final lift, asphalt cap and other final completion items and remaining soft costs. Wet Utilities(Sewer,Water Reclaimed Water, Storm Drain) • Planning, design,engineering and permitting; • Grading and trenching; • Installation of channels, pipes, basins, rip rap and other structures; and • Final completion items and remaining soft costs. Park and Trails • Planning, design,engineering and permitting; • Grading; • Installation of Irrigation, landscaping, parking facilities, play and recreation equipment, bathrooms and other structures;and • Final completion items and remaining soft costs. There shall be no payment from bond proceeds for costs of real property upon which improvements are constructed, except as follows. Payment for real property upon which the Facilities are constructed that is In public ownership is acceptable based on the actual cash payment to the public owner but in no case in an amount greater than the fair market value. 2 179 2012-70 rais I.An appraisal of the property subject to any lien required to secure any public financing shall be required.A minimum property value to lien/debt ratio of 4:1 (including any everlapping_as::sment of Community facilit es districts) must be present pursuant to Premise 3 entitled"Bulk Land value" as set forth in Attachment A as determined by an M.A.I. appraisal. The appraisal shall be reviewed by the City and shall be prepared as set forth in Attachment A hereto. Absorption Study. Unless waived by the City, an absorption study of the proposed development project shall be required for CFD financings.The absorption study shall be used as a basis for verification that sufficient revenues can be produced to fully and timely satisfy debt service requirements and costs of services and to determine if the financing of the public facilities and services Is appropriate given the timing of the development.Additionally the projected absorption rates will be provided to the appraiser for use in the appraisal required in the Appraisal section hereof. Rate and Apportionment of Special Tax.With regard to CFD's,the proposed rate and method of apportionment of the special tax shall comply with the following criteria: a. The rate and method of apportionment shall not provide for an annually increasing maximum special tax for any classification. However,subject to City approval in its sole discretion, under appropriate circumstances, as determined by the City, an increase In the maximum special tax may be permitted, not to exceed two percent (2%)annually. b. The total projected annual special tax revenues must exceed the projected annual gross debt service on the bonds by at least ten percent(10%). In structuring the special tax, projected annual interest earnings on bond reserves funds shall not be included as revenue for the purpose of this calculation. c. In limited cases, as determined by the City in its sole discretion, a special tax for services may be permitted and the annual special tax may increase to reflect projected increases in costs to provide the applicable services in an amount to be determined by the City, In its sole discretion. d. The projected annual special tax revenues shall include amounts projected to be sufficient to pay reasonable annual administrative expenses and other direct costs to the CFD. e. All property not otherwise statutorily exempted or owned (or to be owned)by a public entity shall bear its appropriate share of the special tax liability. f. The special tax shall be apportioned on a reasonable basis to categories and classes of property within the CFD subject to the special tax. g. A formula to prepay the special tax may be permitted. h. The projected ad valorem property tax and other direct and overlapping debt for the proposed development project charges, projected benefit assessments, levies for 3 180 2012-70 authorized but unissued debt and any other anticipated municipal charges(including estimated LLMD(Lighting&Landscaping Maintenance Districts))which may be included on property owners annual tax bill), including the proposed maximum special tax, may not exceed one and one-half percent(1.5%)of the anticipated Assessor's full cash value of each improved parcel upon completion of the bond financed Improvements and the reasonably anticipated private improvements. I. A backup special tax or other security device to protect against changes in densities resulting in insufficient annual special tax revenues to pay annual debt service and administrative expenses may be required at the sole discretion of the City. Credit Structure of Bond Issues. Each bond issue shall be structured to adequately protect bondholders and to not negatively impact the bonding capacity or credit rating of the City through a combination of credit enhancements,foreclosure covenants,and special reserve funds.Specifically: a. A credit enhancement will be required whenever one entity or related entities are responsible for twenty percent(20%)or more of the debt service obligation of the proposed debt issue.The required credit enhancement shall take the form of, and shall be provided as set forth in Attachment B,hereto. b. A foreclosure covenant will be required and shall be included in any applicable bond indenture or fiscal agent agreement. In addition,within the fiscal year immediately following the first full year of delinquency,foreclosure action shall commence against delinquent parcels as specified in the foreclosure covenant made to the bond owners. c. The City will require that capitalized interest on the initial series of bonds be funded from the proceeds of the bonds. Capitalized interest shall not exceed twenty-four(24) months, and shall be for a shorter period if(i)further restricted by stature or(ii)determined by the City, in its sole discretion. Interest earnings may,at the City's discretion be applied to extend the Initial term of capitalized interest but in no event beyond the term statutorily authorized.The inclusion of capitalized interest in subsequent series of bonds will be at the City's discretion and will only be permitted if a direct benefit inures to the ultimate property owners. d. A reserve fund equal to the lesser of:(1)ten percent(10%)of the original principal amount of the bonds,(2)maximum annual debt service,or(3)one hundred twenty five percent(125%)of average annual debt service(the"Reserve Requirement")shall be funded from the proceeds of each series of bonds.A reserve fund surety bond or letter of credit, provided by a municipal bond Insurer,a major banking institution or other equivalent source,may be substituted, at the City's sole discretion. Level Debt Service Requirement. Bond,issues will be structured with approxmateiy level debt service.To the extent that bonds are issued in series, individual series of bonds may have uneven debt service if the intent Is to create level debt service at such time as all series of bonds are issued and to minimize the potential of fluctuating annual special taxes. 4 181 2012-70 Maximum Term of Bonds. If a single series of bonds is contemplated,the term of the bonds shall not exceed thirty(30)years. If multiple series of bond issue are contemplated, In no Instance should an individual residential parcel be encumbered for debt service beyond a thirty- five(35)year period. Disclosure. Disclosure of the special tax lien shall be in compliance with applicable statutory authority.The City,in its sole judgment,may require additional property owner notification if it deems such disclosure will assist subsequent property owners to be made aware of the lien obligation. In addition,applicants for CFD financings and all major landowners will be required to cooperate prior to and subsequent to all bond sales with initial and continuing disclosure to bondholders and the financial markets.Applicants and landowners will cooperate in the preparation,verification and dissemination of the identity of landowners, development project plans,timetables and statistics,and financial pro-forma information, and any other information the City and its financing team deem appropriate. Formatlon_Payment of Initial Fees and Costs by Applicant. No Proposal to initiate the formation of a CFD financing will be considered valid without the payment of a fee to compensate the City for all costs incurred to perform its analysis of the proposal and to pay for the costs of conducting the proceedings.Applicants for public financing projects shall submit proposals to the City Manager.The City will review the proposal within one hundred(100)days after it is deemed complete and make its determination whether or not to formally consider the proposed district.The applicant(s)shall deposit a minimum$10,000 estimated fee amount with the City Manager at the time the proposal is submitted. The minimum fee will be increased to an amount determined by the City in its sole discretion to be appropriate given the size and scope of the proposed project or financing.The estimated fee amount shall be in the form of cash or other negotiable instrument. Failure to submit any requested increase In the deposit will result in a suspension of the processing of the financing. Independent Rev ,w by the City.The City will perform an Independent review of the proposed public financing and may take recommendations to the City Council regarding the financial risk, impact of the City's bonding capacity,economic feasibility and related issues.The applicant(e) shall be required to provide current and two prior years financial statements,preferably audited, of the entity responsible for the development and initial payment of special taxes and other material to assist the City or its agent In its fiscal review. City to Select Professionals.The City shall select the bond counsel, underwriter,financial advisor,appraiser,absorption consultant, special tax consultant and other professionals and consultants it deems appropriate. Cooperation by CI v Departments.All appropriate City departments will cooperate in conducting the necessary reviews and proceedings. 5 182 2012-70 • I� d Sec "' h s•All statements and materials related emphasize and state that neither the faith,credit nor h d to the sale of CFD bonds Bernardino is pledged-to-the-repayment the taxing power -the-alt +-_ payment of the bonds, nor is there an obligation of the the reserve fund from revenue sources other than special taxes ➢ San foreclosure proceedings. a City to axes or proceeds of CftytO Ac u r om le e design, engineering and cl 1 i . It is the desire of the City that it Incur no liability for g maintenance of the public improvements to be financed through bond nd "acquisition district' f public infrastructure, under which bond proceeds pay g bond proceeds, it is the preference of the City to use the financed i the financed improvement or approved will be released ed only approach to for CFD which is to own the improvement. ll ctracts for pub Hchlm roved acceptance b completion or maintained by the City shall be consistent with the requirements ants to be owned,y the entity oereto, operated set forth in Attachment C !t 's Ff nci 1 C ns I C, consultant to assist the City n ' The City may, at its sole discretion, employ a financial con section hereof)ssi ty during its fiscal review period(noted In the independent Review and all costs for consulting services will be borne by the applicant(s) by provided in the Payment of Initial Fees and Costs by Applicant section hereof, as se t f o P will be used and disbursed at times and In tan ing ddocuments will provide that bond proceeds the CFD and other such agreements entered into with the Cit with specified in the resolutions forming Y respect thereto. e rt e o For outstanding bond issues, all City departments and agencies with administrative responsibilities will notify the City Council and file a written report of the has occurred. if an event of default under the financing documents ccurred. ��In d--,�infCF Bo nd n . All proposed refunding or refinancing issues will be submi had to the City for review with complete disclosure of the benefits and costs of t preliminary and final official statement or disclosure statement for any bond sha(i be filed with the City Manager, he proposed refinancing,A ty Mana er� City Attorney and the City bonds to be 1 ht to M di tY Council. or lv Po Ici s. The City has the right to waive or modify any of the policies included herein if, in the City's judgment, benefit Inures to the ultimate and/or to the City, borate property P rips P party owners, the CFD Other gaencree The City agrees to assume the ownership, completed public improvements a P, operation and maintenance of the provided that: 1)such improvements um et all requirements for pecial District bond proceeds, operated and maintained by the City including but not limited to confstructio improvement owned' n to City City standards 6 183 2012-70 as determined by the city engineer;2)funding for the maintenance of the improvements will be provided solely by private property owners through a combination of Assessment Districts, Special Districts,or contracts. City General Fund revenues shall not be used to fund the maintenance of anypublic improvements constructed with Special District bond proceeds._ City agrees to cooperate in a joint community facilities agreement with the San Bernardino City Unified School District("School District")to finance school facilities, if applicable.Alternatively, if the School District is the lead agency In the formation of a Special District for the Project,the City agrees to cooperate in securing a joint community facilities agreement with the School District in order that City required public improvements are acquired or constructed by such Special District and turned over to ownership by the City. 7 184 2012-70 ATTACHMENT A CRITERIA FOR APPRAISALS A. Definition of Appraisal.An appraisal is a written statement independently and impartial prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market Information. B. Standards of Appraisal.The format and level of documentation for an appraisal depend on the complexity of the appraisal problem. A detailed appraisal shall be prepared for complex appraisal problems. A detailed appraisal shall reflect nationally recognized appraisal standards, including, to the extent appropriate,the uniform Appraisal Standards for Federal Land Acquisition, as well as appraisal standards promulgated by the California Debt and Investment Advisory Commission, and shall specifically Identify any departure from such standards.An appraisal must contain sufficient documentation, including valuation data and the appraiser's analysis of the data,to support the appraiser's opinion of value. At a minimum, the appraisal shall contain the following items; 1. The purpose and/or function of the appraisal;a definition of the estate being appraised,and a statement of the assumption and limiting conditions affecting the appraisal. 2. An adequate description of the physical characteristics of the property being appraised; location, zoning, present use,end analysis of the highest and best use. 3. All relevant and reliable approaches to value consistent with section D below, as well as commonly accepted professional appraisal practices and the standards of the California Debt and investment Advisory Commission. If a discounted cash flow analysis is used, it should be supported with at least one other valuation method such as a market approach using sales that are at the same stage of land development. If more than one approach is utilized,there shall be an analysis and reconciliation of approaches to value that are sufficient to support the appraiser's opinion of value. 4. A description of comparable sales, including a description of all relevant physical, legal and economic factors such as parties to the transaction, source and method of financing, and verification by a party involved in the transaction. 5. A statement of the value of the real property. 8 185 2012-70 6. The effective data of valuation date of appraisal,signature and certification of the appraiser. C. Conflict of Interest. No appraiser or review appraiser shall have any interest direct or indirect in the real property being appraised for the City that would in any way con with the preparation or review of the appraisal. Compensation for making the appraisal shall not be based on the amount of the valuation. D. Community Facilities District Appraisal Premises.The valuation of proposed special tax districts should be based on three premises: 1. Raw Land Value(Premise#1).The total land within the project shall be valued "as is", a. Without proposed infrastructure being financed or any future private improvements. b. With existing parcel configuration and existing land use entitlements. c. Considering planned densities allowed by the specific plan or other project approvals then in effect, This is a typical type of land valuation 2. Project Buildout value (Premise#2).The total land within the project is valued under projected conditions. a. With proposed Infrastructure being financed completed. b. At the planned densities allowed by the specific plan or other approvals then in effect. c. Land development is at the stage of being marketed to merchant builders or tentative tract maps ready to be filed. This is a projected value based on project plans predicated on market conditions continuing as project. 3. Bulk Land Value(Premise#3).The total land within the project is valued under projected conditions: a. With proposed infrastructure being financed completed. b. With existing parcel configuration. c. Considering planned densities allowed by the specific plan or other project approvals then in effect. This premise should consider a discounted or"quick sale"valuation considering time, costs and the possibility of a per unit value based on the total size of the project. 9 186 2012-70 • ATTACHMENT B POLICY ON CREDIT ENHANCEMENT If property within the proposed boundaries of a CFD,owned by one entity or related entitles, --- their successors and assigns, is responsible for twenty percent(20%)or more of the debt service obligation of the proposed debt issue,an irrevocable credit facility having the following terms will be required: A. The credit facility will name the bond trustee or fiscal agent as beneficiary. B. The face amount of the credit facility will be equal to three(3)times the amount of the annual debt service obligation for which the property so owned is responsible. C. The credit facility will have a term of at least one year and by subject to annual renewal or call prior to expiration. D. The credit facility may be drawn upon should there be a default by the property owner in the timely payment of the special tax obligation for the subject property. E. The credit facility must be issued by a financial institution acceptable to the City that is rated"A"or better by Standard and Poor's Corporation, Moody's Investors Service or Fitch Investors Service, Inc. F. The face amount of the credit facility may be drawn should the credit facility not be timely renewed or a substitute credit facility acceptable to the City not be timely provided,or if the rating or the capitalization of the provider falls to a level not acceptable to the City in its sole discretion. G. The face amount of the credit facility will be subject to periodic adjustments should the property owner sell or transfer portions of the property to unrelated third parties. For purposes of this Policy, parties will be considered to be related should they be so deemed by the internal Revenue Code of 1986, as amended (the"Code"),and the regulations promulgated thereunder.However,the City does reserve the right to apply a stricter standard than that provided by the Code in determining parties that are related. The City may, in its sole discretion, require additional credit enhancements for a particular CFD financing if it is determined that they are needed to bring the credit worthiness-of the proposed debt issue up to a level that is acceptable to the City in its sole discretion: 10 187 2012-70 ATTACHMENT C CONSTRUCTION CONTRACTS FOR COMMUNITY FACILITIES DISTRICTS WITH MELLO- ROOS DISTRICTS With regard to the construction of public facilities that are to be financed from the proceeds of bonds sold pursuant to the Act,the following policies are to be applied: A. The appropriate City department will be specified as the CFD's representative to administer the construction of each of the facilities to be owned and maintained by the City. B. Unless otherwise agreed by the City,the facilities to be owned and maintained by the City are to be acquired by the CFD. C. Consistent with this policy,the City finds, pursuant to Section 53329.5(c)of the Act, that it will not serve the public interest to allow the property owner(s)to elect to preform the construction'of the facilities after the publication of the notice of the award of the contract and declaration to this effect is to be included in each resolution of intention submitted to the City Council pursuant to Section 53321 of the Act. D. The entity that constructs the improvements must comply with all applicable prevailing wage and bidding requirements, and so certify such compliance to the City prior to the use of bond proceeds to pay costs of any improvement constructed by an entity other than the City. 11 188 2012-70 EXHIBIT"C" TABLE OF PROCESSING FEES W CH130610.00014403311.312/23/2011 189 2012-70 k a f Planning Division ;, Community Development Department 300 North"D"Street,3'd Floor,San Bernardino, CA 92418-001 -- ; Phone: (909)364-5057 Fax: (909)384-5040 San Berna.r i o Website: www,�[tv.orq PLANNING DIVISION SCHEDULE OF FEES Fees Effective:January 1,2009 Bow Technology Archive Type of Application Fee Fee Fee Total Amendment to Conditions: Director review(DP1) $583 $11.66 $8.00 $602.66 • -D/ERC review(DP2) $822 $16.44 $8.00 $846.44 -Planning Comm.Review (CUP/DP3/SUB) $2,550 $51 $8.00 $2,609.00 Antenna Development Permit(DPi) $2,938 $58.76 11.25 $3,008.01 Appeal to Mayor&Common Council -Non-applicant,City resident $177 $3.54 $2.00 $182.54 $1,766 $35.32 $2.00 $1,803.32 -All others Appeal to Planning Commission -Non-applicant,City resident $278 $5.56 $2.00 $285.56 -All others $2,772 $55.44 $2.00 $2,829.44 Conditional Use Permit -Alcohol outlet in existing building $3,858 $77.16 $12.00 $3,947.16 -Commercial&Industrial(non-residential) $7,133 $142.66 $12.00 $7,287.66 -Residential(Condo,HMOD,Guest House) $2,809 $56.18 $12.00 $2,877.18 -Revision $2,113 $42.26 $12.00 $2467.26 Design Review Full Consultant Cost * Development Agreement or Agreement Direct Cost + 2% * Amendment Recovery Fee Development Code Amendment $7,449 plus Full $148.98 * Consultant Cost Development Permit - Type I (DPI-Director review) $1,070 $21:40 $11.25 $1,102.65 - Type 2(DP2-Dev. Review Committee) $6,890 $137.80 $12.00 $7,039.80 - Type 3 (Planning Commission) $7,191 $143.82 $12.00 $7,334.82 - Type 3 (Mayor and Common Council) $7,288 $145.76 $12.00 17,445.76 1 190 2012-70 Base Technology Archive Type of Application Fee Fee Fee Total Document Copies Varies-see page 4 - Environmental Study(Initial Study prepared $3,273 $65.46 n/a by staff for MND with MM/RP) $x,338.46 Environmental Impact Report Direct Cost Recovery Fee plus Full Consultant Cost Extension of Time --CUP&Development Permit 2/3 $3,922 $78.44 $11.25 $4,011.69 -Tentative Tract Maps $4,768 $95.36 $11.25 $4,874.61 Fence/Wall Permit $56 $1.12 1,50 $58.62 Fire Fees - CUP&Development Permit 2/3 $413.45 $413.45 - Subdivisions,Tentative Tracts,Parcel $361.85 n/a n/a $361.85 Maps,and Lot Line Adjustments (CA Dept of) Fish&Game Fees(Hake chedc payable to"clerk of the Hoard of Supervisors") - Environmental Impact Report $2,768.25 + $50 Admin. Fee $2,818.25 -Negative Declaration (with or without $1,993.00 + $50 Admin. Fee $2,043.00 MMRP) $50 $50.00 - Notice of Exemption General Plan Amendment(text or map) Direct Cost Recovery Fee($1500 Deposit) Historic Preservation Report Direct Cost Recovery Fee($815 deposit plus Consultant Cost) Home Occupation Permit $268 $5.36 $2.00 $275.36 Letter of Zoning&Gen.Plan Consistency $450 $9.00 $2.00 $461.00 Lot Line Adjustment $477 $9.54 $8.00 $494.54 Minor Exception -Concurrent with another application $288 $5.76 $4.50 $298.26 -Owner-occupied single-family residence $268 $5.36 $4.50 $277.86 -Other $792 $15.84 $4.50 $812.34 Misc.Environmental Report Review Direct Cost Recovery Fee($245 deposit) plus Full Consultant Cost($327 deposit) Minor Modification/Revision $561 $11.22 $4.50 $576.72 Phasing Plan Review -If not part of original project review $823 $16.46 $12.00 $851.46 - Dev.Review Committee application $514 $10.28 $12.00 $536.28 (DP2) $536 $10.72 $12.00 $558.72 -Piannin, Comm.a. .Ikation 2 -- --191 2012-70 • Base l eclhnology Archive Type of Application Fee I-ee Fee Total (CUP%DP3/SUB) Planning Commission Interpretation $1,119 $22.38 n/a 1141.38 Public Convenience or Necessity Letter -- $636 $12:72- 50 $65 22- ____.-----..--- (PCN) pre-Application Review-DRC Review $2,424 $48.48 $6.00 $2,478.48 (If an application is flied within 60 days of the review, $1,500 will be credited toward that application.) Reconsideration by the Planning Comm, $506 10.12 n/a $516.12 - Sign Permit $182 $3.64 $5.50 $191.14 - Requiring Conditional Use Permit $3,858 $77.16 $5.50 $3,940.66 -Temporary $111 $2.22 $5.50 $118.72 Sign Program $610 $12.20 $5.50 $627.70 Specific Plan or Specific Plan Amendment Direct Cost Recovery Fee plus Full Consultant Cost Temporary Use Permit -Director Review $450 $9.00 $4.75 $463.75 -Planning Commission Review $782 $15.64 $4.75 $802.39 Tentative Parcel Map $4,262 +2%of $8.00 Varies plus$65 per parcel calculated base fee Tentative Tract Map(for Single-Family $7,561 +2%of $8.00 Varies Residential,Condo's,or P.R.D.) plus$65 per lot/dwlg calculated unit base fee Tentative Map Revision-Tract/Parcel Map $2,113 $42.26 $8.00 $2,163.26 Tree Removal Permit $506 $10.12 $4.25 $520.37 Variance $2,724 $54.48 $4.75 $2,783.23 -With another application $910 $18.20 $4.75 $932.95 -Single Family Residence $322 $6.44 $4.75 $333.19 Vesting Tentative Maps_ Direct Cost Recovery Fee plus Full Consultant Cost Zoning Form-written verification of zoning $22 $.44 $2.00 $24.44 only Zoning Verification Review(for Business $37 $.74 $2.00 $39.74 Registration Certificate) •*Archive fees are$1.00 plus$2.00 per plan sheet plus$.25 per document. Total archive fee will vary base on the total number of case file documents. 3 192- 2012-70 Direct Cost Recovery Fee overhead Direct Cost Recovery a i t theme shall specific item being discussed.The applicant material ,shall pay a deposit for the Direct including overhead charge 9 i� Cost Recovery Fee at the time of filing the application. The Full Consul n Cost shall Include all costs Incurred by the City under contract with a consultant. The applicant shall pay a deposit for the full consultant costs at the time of filing the application. Deposit Reauirec( The applicant shall pay an initial deposit of $1,500 (or the deposit listed in the fee schedule) at the time of filing an application on which there is a Direct Cost Recovery Fee.The applicant shall pay an initial deposit of $1,500 (or the deposit listed in the fee schedule) at the time of filing an application on which there is a Full Consultant Cost Fee. When 75% of a deposit has been expended,and the Planning Division determines that the estimated remaining costs of the job will exceed the amount deposited, an additional deposit of such excess shall be required. Notification of the additional deposit required will be mailed to the applicant, who shall deposit such monies prior to the date specified in the notice. When an additional deposit has been requested, work will be suspended on the project when 95% of the deposit previously received has been expended. Projects will not be completed with money due. If an additional snit pale by the date specified in th- notice,the oroieCt shall be deemed withdrawn on the date eci without rth action ot_j_ti_M.Part oflhe City of•San Bernardino and without refund of any money deposited for se ices_performed. Such project may be reinstated only if additional deposit is made within 30 days from the date that the project was deemed withdrawn. If a project involves multiple applications, the full amount of fees for each type of application shall be paid. monies will irect made st Recovery Fee or Full Consulwas t erroneously Cost Fee after all changes efo for the project have ebeen mop determined, or as determined by the Director. Fees are automatically adjusted annually on 3anuary 1st of each year, based on the latest available Consumer Price Index Increase from the prior year. Fees adopted per Resolution No.89-471(11/22/89),Resolution No.91-148(4/18/92),Resolution No.2003-211 Resolution No. Resolution No. (9/5/06)).Te (9/5/06). Fire of 2.0%0 spauto authorized by Resolution No.2008-149(05/07/08).9-173 (7/13/99) and FEES FOR DOCUMENTS & MAPS Account#001-000-4710 Documents The General Plan, Development Code, and other documents are available on the City's web page: www.sbcity.org,select Departments and Development Services and Planning. Maps Maps are available In the General Plan located on the City's web page: www.sbcitv.orq, select Departments and Community Development and Planning. copying Photocopies 354 first page, plus 154 each additional page 4 193 2012-70 Engineering Division r ;. Development Services Department 300 North"D"Street,3`d Floor,San Bernardino,CA 92418-001 Phone:-(90943845111.Fax:_(.909)384-511s . --..---.____....._ ... _ Website: wwuy,sbcit or4 Sal Be .• nS ENGINEERING DIVISION SCHEDULE OF FEES Fees Effective:July 18,2009 EZase Issuance Technology Archive Ftu Fu,2 F_e (2",0) Ft!t: (Pf'i /0"I ype of Al�plie��fion Sheet) Basic Permit Fees: -Engineering Permit $45.00 $.90 $1.00 $46.90 -Blanket Permit $53.00 $1.06 $1.00 $55.06 -Permit Extension $43.00 $.86 $1.00 $44.86 Permanent Encroachment Permit $625.00 $45.00 $12.50 $1.00 $683.50 Temporary Encroachment Permit; - No Lane Closure $25.00 $45.00 $1.40 $1.00 $74.80 - With Lane Closure(First Day) $136.00 $45.00 $3.62 $1.00 $185.62 - Each Additional Day $60.00 * $1.20 * $61.20 Combo Lane Closure With Excavation $286.00 $53.00 $6.78 $1.00 $346.78 Special Events Encroachment Permit 0 . - With A Lane Closure $500.00 $45.00 $10.90 $1.00 $5569 -- With A Street Closure $514.00 $45.00 $11.18 $1.00 $5$55674.90.18 -- Road Closure(First Day) $302.00 $45.00 $6.94 $1.00 - Road Closure(Each Additional $302.00 * * * $302.00 Day) , Oversize Load Permit/Building Move - One Day Permit(State Fee) $17.00 * $.34 $1.00 $18.34 - Annual Permit(State Fee) $95.00 * $1.90 $1.00 $97.90 Hauling Permit: - First Day $393.00 $45.00 $7.86 $1.00 $401.86 .00 $102.00 . - Each Additional Day $100.00 * $2.00 Excavation Permit (Per Day) $150.00 $45.00 -$3.90 $1.00 $199.90 - 1 194 2012-70 Base Issuance Technology Archive 1=� Fee Fee (.'"' ) Fee {Pet Total Type of Application sheet) Traffic Study Report $719.00 * $14.38 $ .25 $733.63 - Base Fee- Extended Review(Per Hour) $80.00 * $1.60 ----$81.60 --------- - --- Final Map or Parcel Map Review: -Base Fee $2,210.00 * $44.20 $2.00 $2,256.20 -Per Lot Fee $55.00 * +2% - Each Additional Review $135.00 * $2.70 * $137.70 - Final Map Continuance $404.00 * $8.08 * $412.08 - Certificate of Correction (Per $97.00 * $1.94 $2.00 $100.94 Hour) Of Site Improvement Plan Check Fee/Based on Construction Cost 4% * + 2% $2.00 Estimate Minimum$50.00 Charge On-Site Improvement Plan Check Fee/Based on Construction Cost 2% * + 2% $2.00 Estimate Grading Plan Check Fees: - 50 or Less Cubic Yards(CY) No Fee * * * * - 51-100 Cubic Yards(CY) $15.00 * $ .30 $2.00 $17.30 - 101-1,000 Cubic Yards.(CY) $22.50 * $ .45 $2.00 $24.95 - 1,001-10,000 Cubic Yards(CY) $30.00 * $..60 $2 00 $32.60 - 10,001-100,000 Cubic Yards $30.00/$15.00 2% (CY) additional 10,000 CY + 2% $2.00 - 100,001-200,000 Cubic Yards additional /$ * 0 + 2% $2.00 (CY) CY - 200,001 Cubic Yards(CY)and up $255.00/$4.50 * additional 10,000 . CY Four or More Plan Checks $85.00 * + 2% $1.00 Review Revisions to Approved Plans $137.00 * $2.74 $2.00 $141.74 Review Fee: - Certificates of Compliance $828.00 * $16.56 $ .25 $844.81 - Lot Merger $828.00 * $16.56 $ .25 $848.81 - Lot Line Adjustment--Single * Family/Owner Occupied $414.00 * $8.26 $ .25 $422.53 - Lot Line Adjustment- Commercial/Industrial $828.00 * $16.56 $.25 $844.81 2 195 _ .� 2012-70 Base Issuance Technology Archive Fee Fee Fee (2°/�)) Fee jPer Total hype of Application Sheet)_ Off Site Construction Inspection Fee/Based on Construction Cost 4% * +2% * -Estimate 0n-Site Construction Inspection 3% + 2% Fee/Based on Construction Cost Estimate Grading Inspection Fees: No Fee - 50 or Less Cubic Yards(CY) - 51-100 Cubic Yards(CY) $150.00 * $3.00 * $153.00 - 101-1,000 Cubic Yards(CY) $225.00 * $4.50 $229.00 - 1,001-10,000 Cubic Yards(CY) $300.00 * $6.00 * $606.00 - 10,001-100,000 Cubic Yards $300.00/$100.00 (CY) additional 10,000 CY - 100,001-200,000 Cubic Yards $300.00/$100.00 * + 2% (CY) additional 10,000 CY -- 200,001 Cubic Yards(CY)and up $300.00/$100.00 additional 10,000 CY * + 2% * Blanket Permit Inspection (Per $73.00 * $1.46 * $74.46 Location) Re-Inspection $59.00 * $1.18 * $60.18 Bond Release Inspection $59.00 * $1.18 $1.00 $61.18 After Hours and Holiday Construction Ins-ection: 4 Hour Minimum $369.00 * $7.38 * $376.38 - Each Additional Hour $92.45 * $1.85 * $93.30 Review of Storm Water Pollution Prevention Plans (SWPPP): - Commercial and Residential $410.00 * $8.20 $.25 $418.45 Projects - Industrial and Linear $265.00 * $5.30 $270.55 .30 $.25 (CIP/Utility)Projects Review of Water Quality Management Plans(WQMP); - Non-Categorical $80.00 * $1.60 $ .25 $81.85 - Categorical without Conditions of $365.00 * $7.30 $ .25 $372.55 Concern .25 $. $$22.60. 22 1,152.85 - Categorical with Conditions of $1,130.00 * $ Concern - Four or more Reviews(Per Hour) $99.00 * $1.98 $ .25 $101.23 , 3 _ 196 2012-70 Base Issuance Technology Ai chive Type of Application Fee Fee Fee (2`)A1) Fee (A* -total ShhcT_Q Review of Erosion/Waste Management $75.00 * $1.50 $.25 $76.75 Control Plan _ ..-.--------- ----.. National Pollutant Discharge Elimination System(NPDES) Construction Inspection: $98.00 * $1.96 $99.96 - Less Than 10 acres $179.00 * $3.58 * $182.58 - 10 Acres or More National Pollutant Discharge 2 $1.00 Elimination System(NPDES)Business $143.00 * $2.86 . $145.86 Inspection: Hydraulic/Hydrology Study:- Three Hour Minimum $487.00 * $9.74 $ .25 $496.99 - Four or More Hours $100.00 * - $2.00 $ .25 $102,45 Temporary Certificate of Occupancy $520.00 * $10.40 $1.00 $530.25 Engineering Letter $100.00 • * $2.00 $ .25 $102.25 Street Name Change - Plus the Cost of the Sign $1,345.00 * $26.90 $ .25 $1,372.15 Sewer Capacity Analysis: - Minimum Fee $280.00 * $5.60 $ .25 $285.85 - Extended Review(Per Hour) $80.00 $ • $ .25 $81.85 Street Light Electrical Energy Fee - 70W 5,800L Type A $420.00 Each * $8.40 $428.40 - 100W 9,500L Type B $472.80 Each * $9.52 $482.26 - 150W 16,000L Type C $720.00 Each * $14.40 $734.40 - 2p0W 22,000L Type D $912.00 Each * $18.24 $930.24 Billing Fee $59.00 * $1.18 $ .25 $60.43 Street or Alley Vacation - Deposit $1,000.00 * $20.00 $ .25 $1,020.25 - Balance Due Prior to Processing $1,000.00 * $20.00 $ .25 $1,020.25 Dedication of Right-of-Way(Each): - If Legal and Map are Provided $315.00 0 $ .25$ 3 . 5 $321.55 - If City Prepares Legal and Map $800.00 $16.00 Private Party Annexation Request • $14,750.00 * $295.00 $ .25 $15,045.25 City Property Lease Processing $2,100.00 * $42.00 $ .25 $2142.25 4 197 2012-70 • • Base Issuance 1 ethnology At chive Type of Application Fc( F,,(. ICe (2";L,) i'ee Pei Total Sheet) Community Facility District Verdemont Area Only $7,010.78/Lot $140.22 $.25 $7,151.25 -- Residential in lieu Fee $386.43/Lot $7.73 $.25 $394.40 — Residential if in CFD 2009/2010 $48,975.34/Acre $979.51 $ .25 $49,954.46 — Industrial/Commercial in Lieu $2,699.48/Acre $53.98 $ .25 $2,753.72 Fee Industrial/Commerdal if in CFD $5,900 $118.00 $ .25 $6,018.25 2009/2010 — CFD Formation Fee Assessment District $5,900 $118.00 $ .25 $6,018.25 Outside City Sewer Service Permit $1,300.00 $45.00 $26 $1.00 $1,327 * Archive fees are$1.00per permit,$2.00 per plan sheet and$.25 per document, Total archive fee will vary base on the total number of case file documents. FEES FOR DOCUMENTS&MAPS Account#001-0004710 Documents The General Plan, Development Code, and other documents are available on the City's web page: www. bcitv.orq, select Departments and Development Services and Planning. Maps Maps are available in the General Plan located on the City's web page: www.sbcitv.orq, select Departments and Development Services and Planning Copying Photocopies 35¢first page, plus 154 each additional page • 5 198 2012-70 EXHIBIT"D" TABLE OF IMPACT FEES WCH130610.00011405311.3 12123/2011 199 2012-70 Exhibit D University Hills Impact Fee Schedule __.._. Fees_ta he pnidiyJh nitial 504._Units: --.----._________ Detached Attached • Local Circulation System Fee $232.94 $155.28 • Regional Circulation System Fee $2,435.00 $1,626.00 • Sewer Connection Fe a $419.72 per bedroom, both • Storm Drain Fee $3,925.91 $1,620.67 • Sewer Capacity Fee $3,500.00 $3,500.00 • Sewer Inspection Fee $29.18 $29.18 • Water Acquisition Fee $4,740.00 $2,370.00 • Water Administration Fee $180.00 $180.00 • School Fee • $5.19 per SF for both Fees specifically excluded for the Initial 504 Units • Law Enforcement Fee $639.07 $566.22 • Fire Suppression Fee $792.09 $977.13 • Library Facilities Fee $637.89 $505.30 • Aquatic Facilities Fee $326.11 $258.00 • Public Meeting Facilities Fee $1089.54 $861.84 • Parkland and Open Space Fee $9,517.86 $7,533.45 Current Fee Categories, to be paid by all units after the initial 504 units. • Local Circulation System Fee $232.94 $155.28 • Regional Circulation System Fee $2,435.00 $1,626.00 • Sewer Connection Fee $419.72 per bedroom, both • Storm Drain Fee $3,925.91 $1,620.67 • Sewer Capacity Fee $3,500.00 $3,500.00 • Sewer Inspection Fee $29.18 $29.18 • Water Acquisition Fee $4,740.00 $2,370.00 • Water Administration Fee $180.00 $180.00 • School Fee $5.19 per SF for both • Law Enforcement Fee $639.07 $566.22 • Fire Suppression Fee $792.09 $977.13 • Library Facilities Fee $637.89 $505.30 • Aquatic Facilities Fee $326.11 $258.00 • Public Meeting Facilities Fee $1089.54 $861.84 • Parkland and Open Space Fee $9,517.86 $7,533.45 2130 2012-70 ATTACHMENT 6 RECORDING REQUESTED BY,AND WHEN RECORDED, MAIL TO: City of San Bernardino Attn: City Manager 300 North"D" Street, 6th Floor San Bernardino, California 92418 (SPACE ABOVE FOR RECORDER USE) NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 BETWEEN FONTANA CORNERS III AND CITY OF SAN BERNARDINO 250 2012-70 2012-70 NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 THIS NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 ("Notice") is made as of this 19th day of April, 2012, by and between(i)the CITY OF SAN BERNARDINO, a municipal corporation organized and existing under the laws of the State of California(the"City"), and(ii) FONTANA CORNERS 111, L.P., a California limited partnership(the"Property Owner"),pursuant to the authority therefore set forth in Sections 65864 through 65869.5 of the California Government Code and action of the City as established by Resolution No. 2012-70 adopted by the City on April 19th, 2012 (the"2012 Resolution"). City and Property Owner are each sometimes referred to herein as a"Party"and jointly as the "Parties." A. City and Property Owner have heretofore, on or about February, 1993, entered into that certain Development Agreement(the"1 993 Development Agreement"),which the City approved pursuant to Resolution No. 93-45 on February 24, 1993, and which the City caused to be recorded on April 5, 1993, Instrument No. 93-147609 of Official Records in San Bernardino County, California. B. The 1993 Development Agreement described the real property on which it was recorded as that certain real property located in the City, County of San Bernardino, California, more particularly described in Exhibit"A"hereto (the"1993 Development Property"). C. Property Owner has proposed to City, and City and Property Owner have negotiated the terms of, a new Development Agreement(the"2012 Development Agreement") which City and Property Owner understand and agree will fully and completely take the place of the 1993 Development Agreement for all purposes as they relate to the 1993 Development Property, and therefore, City and Property Owner agree that, included within the City's adoption of the 2012 Resolution approving the 2012 Development Agreement, City will acknowledge for the record that the 1993 Development Agreement has expired,and will direct the recordation of this Notice. NOW, THEREFORE,based on the above Recitals, and including specifically,the approval by the City of the 2012 Development Agreement,the Parties agree as follows: 1. City has approved the 2012 Development Agreement pursuant to the 2012 Resolution. 2. The Parties hereby acknowledge that the 1993 Development Agreement expired on or about March 24, 2008,and by recording this Notice, it is the intent of the Parties to render the 1993 Development Agreement of no further force or effect as to the 1993 Development Property or any other property. WCH\30610.0001\415363.2 4/18/2012 251 2012-70 [Type text] 3. The Parties agree that, as a matter of further assurances, if at a later date any question should arise as to the legal effectiveness of this Notice as to the 1993 Development Property, or the lien of the 1993 Development Agreement thereon, the Parties will cooperate in giving such further written assurances as might reasonably be necessary to clear title to the 1993 Development Property from the lien of the 1993 Development Agreement. IN WITNESS WHEREOF, the Parties have executed this Notice, to be effective as set forth herein above. "PROPERTY OWNER" "CITY" FONTANA CORNERS 111, L.P., a California CITY OF SAN BERNARDINO, a municipal limited partnership corpora By: ARADI, LT ., a Nevad corporation, its By: 17[1/ jti l a,(C 0"a/U.(li General PlAyier Andrea Travis-Miller Acting City Manager By: - APPROVED AS TO FORM. James F. Penman, City Attorney By: WCH\30610.0001\415363.2 4/18/2012 252 RESOLUTION NO. 2012-70 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF a SAN BERNARDINO APPROVING DEVELOPMENT AGREEMENT NO. 12-01 REGARDING THE 404-ACRE UNIVERSITY HILLS DEVELOPMENT TO IMPLEMENT THE s UNIVERSITY HILLS SPECIFIC PLAN, GENERALLY LOCATED NORTHWEST OF THE 6 CALIFORNIA STATE UNIVERSITY AT SAN BERNARDINO CAMPUS BETWEEN THE NORTHERN TERMINI OF CAMPUS PARKWAY AND LITTLE MOUNTAIN ROAD; AND APPROVING THE NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91- 8 03. 9 10 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 12 SECTION 1. RECITALS 13 WHEREAS,the Mayor and Common Council of the City of San Bernardino adopted the General la Plan for the City by Resolution No. 2005-362 on November 1, 2005; and 15 WHEREAS, the Mayor and Common Council on November 17, 2008, adopted Resolution No. 16 2008-422, which certified the Final Subsequent Environmental Impact Report (SCH #2007071155), 17 adopted the Facts, Findings and Statement of Overriding Considerations and the Mitigation Monitoring 18 Reporting Plan, adopted General Plan Amendment No. 08-03 and the University Hills Specific Plan No. 19 07-01, and approved Tentative Parcel Map No. 18969 and Tentative Tract Map Nos. 18140 and 18696; 20 and 21 WHEREAS, the Planning Commission conducted a noticed public hearing on March 28, 2012, 22 in order to receive public testimony and written and oral comments on Development Agreement No. 12- 23 01, and fully reviewed and considered the Planning Division Staff Report and the recommendation of 24 the Environmental Review Committee;and 25 WHEREAS, the Mayor and Common Council held a noticed public hearing on April 19, 2012, 26 and fully reviewed and considered proposed Development Agreement No. 12-01. 27 /// 28 /// 1 2012-70 SECTION 2. ENVIRONMENTAL IMPACT REPORT 2 NOW, THEREFORE, BE IT RESOLVED, FOUND AND DETERMINED THAT THE 3 MAYOR AND COMMON COUNCIL HEREBY CERTIFIES: 4 A. The facts and information contained in the Recitals section are true and correct. 5 B. The Final Subsequent Environmental Impact Report (SCH #2007071155) for the University 6 Hills Specific Plan, which the Mayor and Common Council previously certified, also analyzed the 7 environmental effects of the proposed Development Agreement. 8 SECTION 3. DEVELOPMENT AGREEMENT NO. 12-01 9 BE IT FURTHER RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 10 OF SAN BERNARDINO THAT: 11 Development Agreement No. 12-01, attached and incorporated herein as Attachment 1, is hereby 12 approved based upon the Findings of Fact contained in the Staff Report to the Planning Commission 13 dated March 28, 2012. The City Manager is hereby authorized and directed to execute Development 14 Agreement No. 12-01 on behalf of the City of San Bernardino. 15 SECTION 4.NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 16 The Notice of Expiration of Development Agreement No. 91-03, attached and incorporated herein as 17 Attachment 6, is hereby approved. The City Manager is hereby authorized and directed to execute the 18 Notice of Expiration of Development Agreement No. 91-03. 19 SECTION 5. The authorization to execute Development Agreement No. 12-01 and Notice of 20 Expiration of Development Agreement No. 91-03 is rescinded if the documents are not executed within 21 ninety(90) days of passage of this Resolution. 22 SECTION 6. EFFECTIVE DATE 23 This Resolution shall become effective thirty (30) days after the date of adoption by the Mayor and 24 Common Council. 25 /// 26 27 28 2 2012-70 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO APPROVING DEVELOPMENT AGREEMENT NO. 12-01 REGARDING THE 404-ACRE UNIVERSITY HILLS DEVELOPMENT TO IMPLEMENT THE 3 UNIVERSITY HILLS SPECIFIC PLAN, GENERALLY LOCATED NORTHWEST OF THE 4 CALIFORNIA STATE UNIVERSITY AT SAN BERNARDINO CAMPUS BETWEEN THE NORTHERN TERMINI OF CAMPUS PARKWAY AND LITTLE MOUNTAIN ROAD; AND 5 APPROVING THE NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91- 6 03. 7 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 8 Common Council of the City of San Bernardino at a i oint adi ourned meeting thereof,held on the 19th day of April ,2012,by the following vote,to wit: 9 to Council Members: AYES NAYS ABSTAIN ABSENT 11 MARQUEZ X 12 JENKINS X 13 VALDIVIA X 14 SHORETT 15 KELLEY X 16 JOHNSON X 17 MC CAMMACK X 18 A ''.0-4.t/ i! 19 George:at, Hann. ' ity C er 20 21 The foregoing resolution is hereby approved this day of April , 2012. 22 23 Patric . Morris, • = y an Bernardino 24 Approved as to form: JAMES F. PENMAN, 25 City 'ttorney / 26 / 27 28 3 1 STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) SS 2 CITY OF SAN BERNARDINO ) 3 I, GEORGEANN HANNA, 4 City Clerk for the City of San Bernardino, DO HEREBY CERTIFY that the 5 foregoing and attached copy of the City of San Bernardino Resolution No. 6 2012-70 is a full, true and correct copy of that now on file in the Office of the 7 City Clerk. 8 9 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Bernardino this 8th day of May, 2012. 10 11 � 12 George.' Hanna, City Clerk 13 14 15 By: ar ret Fedor, Deputy City Clerk 16 17 18 19 20 21 22 23 24 25 26 27 28 (,,''''~I- "- RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of San Bernardino Attn: City Manager 300 North "D" Street, 6th Floor San Bernardino, California . 92418 ~(Q)~1f (SPACE ABOVE FOR RECORDER'S USE ONLY) DEVELOPMENT AGREEMENT SPECIFIC PLAN NO. 08-02 (UNIVERSITY IDLLS) CITY OF SAN BERNARDINO April 19, 2012 /- \.- TABLE OF CONTENTS Pa2e '- 1. Project Development Requirements .............................. .......................... .................... ...... 3 1.1 Standard of Development................... ................... ................ ..... ................... ........ ..... 3 1.2 Vested Provisions; Rules and Regulations................................................................. 3 1.3 Updating of Applicable Regulations ..... .................. ............. ..................................... 5 1.4 Fees and Fee Credits..................................................................................................5 1.5 Building Permits ........................................................................................................ 8 1.6 Processing of Applications; Final Action ................................................................. 8 1.7 Timing of Development ... ....................... .............................. ............. ......... ............... 9 1.8 Public Services ............................................................. ......... ..... ......................... ....... 9 1.9 [Intentionally deleted.] ................ ...... ..................... .................................................. 10 1.10 Public Financing................................................................................................... 10 2. Status of Project Approvals ...... ..... .............. ............ ............. .............. ..... ..... .......... ......... 11 2.1 Term of Approvals................................................................................................... 11 2.2 Consistency of Land Use Designations.................................................................... 11 3. Term of Agreement..... ............. ........ ......... ................. .............. ......... ...... ........................ 11 3.1 Initial Term Extensions ............................................................................................ 11 3.2 Project Completion..... ....... ................ .......... ....................... ......... ............................. 12 4. Binding Effect of Agreement...... ......... ............. ........ ........ ................ ............... ............... 13 4.1 Covenant................ ...... ...... ........ .......... .............. ................ ................. .... ................. 13 4.2 No Property Interest........... ............ ............. ........................... ................... ............... 13 5. Assignment.......... ...... ......... ....... ............ ....... .................... .......................... ............... ...... 13 5.1 Right of Assignment....................................................................~............... ...'......... 13 5.2 Notice Requirement................................................................................................. 13 5.3 Compliance with Project Approvals ....................................................................... 14 5.4 Effect of Assignment; Effect of Default ................................................................. 14 6. N oti ces .. ... ........ ... . ...... ..... ..... ........... ... ........... ......... . ... . ......... ........... .... .. .. '" ................. ..... 14 6 .1 Form of Notice......................................................................................................... 14 6.2 Change of Address .............. ...... ......................... ....... ........ ................... .................... 15 7. Amendment of Agreement ...... ....... ......... ......... ............ ............. ......... ................ ............. 15 7.1 Formal Amendment....... ........................................... ............ ....... ............................. 15 7.2 Clarification........... ................. ..................... ........ ......... ............... ......... ...... .............. 15 8. Interpretation and Enforcement of Agreement .............................................................. 17 8.1 Complete Agreement... ....... ...... ............. ...... ....... ........................ ......... ....... ....... ...... 17 8.2 Severability........................................................................ ...................................... 17 8.3 Conflict with State or Federal Laws ....................................................................... 17 8.4 Applicable Law.................................................................... .................................... 17 8.5 Prevailing Party ....................................................................................................... 17 8.6 Defense of Agreement.. ......... ...................... ..................... ............... ........................ 17 8.7 Authority of Signatories ...... ..... ........ .... ........... ....................................... ..... ...... ...... 18 8.8 Indemnification..................................................................... ................................... 18 8. 9 Waiver and Delays............................................................... .................................... 18 8.10 Third Party Actions............................................... ........... .................................... 18 r \...,.... 8.11 Force Majeure ...................................................................................................... 18 9. Effect on Property...... ................................................................. .................................... 18 9.1 Estoppel Certificate................................................................................................. 18 9.2 Release of Lots from Agreement ............................................................................ 18 10. Periodic Review of Compliance with Agreement .................... ................................... 19 10.1 Annual Review.... ................................................................................................. 19 10.2 Contents of Report....................................... ......................................................... 19 1 0.3 Waiver................................................................. ................................................. 19 11. Violations..................................................................................................................... 19 11.1 Violation by Property Owner ...............................................................................19 11.2 Violation by City......................................................... .................. ....................... 20 11.3 Legal Enforcement........... .............................. ................................... ................... 21 11.4 Mortgagee Protection......................... .................................................................. 21 12. Relationship of Parties................................................................................................ 22 13. Exhibits........................................................................................................................ 22 14. Adoption of Agreement................... ............. .................................. ........................ ..... 22 15. Recording of Agreement...... .............. .............. ...... ............ ........................... ........ ...... 22 Exhibits "----- Exhibit "A" - Legal Description of Property Exhibit "B" - Public Facilities Financing Plan Exhibit "C" - Table of Processing Fees Exhibit "D" - Table of Impact Fees Exhibit "E" - Mitigation Monitoring and Reporting Program Exhibit "F" - 5- Y ear Performance Requirement Exhibit "0" - Facilities Maintenance Plan ii .c- DEVELOPMENT AGREEMENT '- THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this 19th day of April, 2012, ("Effective Date") by and between (i) the CITY OF SAN BERNARDINO, a municipal corporation organized and existing under the laws of the State of California (the "City"), and (ii) FONTANA CORNERS Ill, L.P., a California limited partnership (the "Property Owner"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code. The City and the Property Owner may be referred to herein individuaIIy as a "Party" and coIIectively as the "Parties." RECITALS A. The Property Owner is the Owner of a large property, consisting of approximately four hundred four (404) acres, more particularly described in Exhibit "A" attached hereto (the "Property"). The Property is located in the northerly portion of the City, in close proximity to the campus of California State University, San Bernardino ("CSU"). B. The Property previously was the subject of Resolution No. 93-45, adopted by the City on February 22, 1993, approving General Plan Amendment No. 91-07 and Specific Plan 90-03 and related conditions of approval, and authorizing execution of Development Agreement No. 91-03 with the Property Owner (coIIectively, the "Prior Approvals"). C. Pursuant to the Prior Approvals and the plan of development contained therein, commonly known as Paradise HiIIs, the Property Owner prepared and filed a proposed map for subdivision of the Property. Subsequently Property Owner withdrew that proposal. D. The Property Owner now proposes to develop the Property as a residential community to be known as University HiIIs (the "Project"). E. On November 17, 2008, the Mayor and Common Council of the City adopted Resolution No. 2008-422, which certified the Final Subsequent Environmental Impact Report (the "SEIR"), adopted the Facts, Findings and Statement of Overriding Considerations and the Mitigation Monitoring and Reporting Plan (the "MMRP"), adopted General Plan Amendment No. 08-03 (the "OP A") and the University HiIIs Specific Plan No. 07-01 (the "Specific Plan") and approved Tentative Parcel Map No. 18969, Tentative Tract Map No. 18696 and Tentative Tract Map No. 18140 (the "Map" or the "Maps"). F. The Specific Plan, the GP A, the SEIR (Recital J), the MMRP (Recital J) and any other discretionary land use approvals relating to the Project (and the Prior Approvals, to the extent not expired and not inconsistent) are incorporated herein by ,<(~ .,,- 1 this reference, and collectively comprise the "Project Approvals." Any and all Maps and other future discretionary land use approvals relating to the Project shall become part of the Project Approvals upon receiving approval from the City. The Property Owner desires to develop the Property in accordance with the Project Approvals and this Agreement. The Project consists of development of the Property as contemplated by the Project Approvals and this Agreement, subject to any refinements agreed upon by the Parties. G. Pursuant to the processing of the Project, the Property Owner proposes to enter into this Agreement. Entering into this Agreement is acknowledged to be to the mutual benefit of the Parties. Further, Property Owner and CSU have entered into two (2) agreements Gointly, the "CSU Agreements") titled: (i) Agreement Concerning Development of University Hills, and (ii) Agreement to Donate Land (both attached and incorporated herein as Exhibit~. The Agreement Concerning Development of University Hills provides for permanent public access to the Property, and also provides for joint cooperation on the development of certain street intersections and adjoining landscaped areas. The Agreement to Donate Land provides that, upon the occurrence of specified events, Property Owner will (1) convey to CSU approximately 220 acres of open space for educational and research purposes and will include public trails and (2) convey to CSU a planning area within the Property for the construction by CSU of up to 60 dwelling units for use by faculty and staff. The City acknowledges that these agreements (and the land conveyances to CSU) will be of significant benefit to the City and the public, and provide the consideration for the City to enter into this Agreement. H. The Property Owner has a legal interest in the real property situated in the City which is the subject of this Agreement, and therefore satisfies the statutory requirements to enter into this Agreement. 1. In conjunction with the Prior Approvals, City Council Resolution No. 93-45 certified a Final Environmental Impact Report (the "EIR"), adopted findings and a statement of overriding considerations, and adopted Mitigation Monitoring Program as contemplated by the EIR. The Mayor and Council certified that the EIR was legally adequate, and that it satisfied the requirements of the California Environmental Quality Act ("CEQA;" California Public Resources Code Section 21000 et seq.), the CEQA Guidelines (California Code of Regulations Section 15000 et seq.) and applicable ordinances and regulations of the City. J. In connection with this Agreement, the Mayor and Council reviewed the previously approved EIR and related documents, prepared a Final Subsequent Environmental Impact Report (the "SEIR"), and at a duly called and held public hearing on November 17, 2008, certified that the SEIR is legally adequate. The Mayor and Council's certification of the SEIR included its adoption of the Mitigation Monitoring and Reporting Program ("MMRP") for the Project. The MMRP is attached hereto as Exhibit "E". '- 2 ,--- \.....- K. California Government Code ("Government Codell) Sections 65864 et seq. (collectively, the "Development Agreement Law") authorizes the City to enter into binding development agreements with persons having a legal or equitable interest in the 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 development. The City, being a charter city pursuant to the laws of the State of California, has adopted by ordinance San Bernardino Municipal Code (Development Code) Chapter 19.40, by which the City has provided its separate development criteria for development agreements. This Agreement is adopted pursuant to the Development Agreement Law and the provisions of the City's Municipal Code Chapter 19.40. L. The Planning Commission, on March 28, 2012, conducted hearings and adopted findings relating to this Agreement, as required by Municipal Code Chapter 19.40, and recommended that the Mayor and Council approve this Agreement. The Mayor and Council, on April 19, 2012 by Resolution No. , made all findings and determinations relating to this Agreement which are required by the Development Agreement Law and by Municipal Code Chapter 19.40, and approved this Agreement by its adoption of Resolution No. M. The Mayor and Council finds that execution of this Agreement and the performance of and compliance with the terms and conditions set forth herein by the Parties: (i) is in the best interests of the City; (ii) will promote the public convenience, general welfare and good land use practices in the City; (iii) will promote preservation and enhancement of land values in the City; (iv) will encourage the development of the Project by providing a reasonable level of certainty to the Property Owner; and (v) will provide for orderly growth and development in a manner consistent with the General Plan and other plans and regulations of the City. NOW, THEREFORE, in consideration of the above Recitals, all of which are expressly incorporated into this Agreement, and the mutual promises and obligations of the Parties set forth herein, the Parties agree as follows: 1. Proiect Development Requirements. 1.1 Standard of Development. The Project shall be developed in accordance with the Project Approvals and this Agreement. During the Term (see Section 3.1) of this Agreement, the permitted uses within the Project, the density and intensity of use, maximum height and size of buildings, other zoning standards, the requirements for reservation or dedication of land for public purposes, the mitigation requirements and all other terms and conditions of development of the Project shall be those set forth in the . Project Approvals. ,-.., i 1.2 Vested Provisions: Rules and Regulations. Property Owner shall have the vested right, to the fullest extent allowed under the Development Agreement Law (Gov. Code Sections 65864 et seq.) and Municipal Code Chapter 19.40, and except as otherwise "'-'" 3 r- \.- ,~, '-" expressly provided in this Agreement, to develop the Property in accordance with the provisions of the Specific Plan identified in Recital E, and the terms and provisions in the other Project Approvals, all as in effect as of the Effective Date and the other provisions of this Agreement (collectively the "Vested Provisions"). Municipal Code Chapter 19.40 provides, at subsection 2 of Section 19.40.010, that: "Should any apparent discrepancies between the meaning of these documents arise [Chapter 19.40, Section 65864 et seq. of the Government Code, and the Development Agreement], then the documents shall control in construing the development agreement in the following order of priority: A. The plain terms of the development agreement itself, B. The provisions of this Chapter (Municipal Code Chapter 19.40); and C. above. The provisions of Article 2.5 of the California Government Code, cited Pursuant to Government Code Section 65866 and Municipal Code Chapter 19.40, and except as otherwise provided in this Agreement, the regulations, rules and official policies of the City governing (i) permitted uses within the Project, (ii) density and intensity of use, (iii) design, improvement and construction standards and specifications, (iv) preparation, design, conditions and approval of tentative and final subdivision maps and parcel maps, and (v) all other terms and conditions of development of the Project shall be those regulations, rules and official policies which are in effect on the Effective Date of the resolution approving this Agreement, as modified and/or supplemented by the Specific Plan (the "Applicable Regulations"). Other ordinances, regulations and official policies of the City which are adopted thereafter may be applicable to the Project, to the extent that they are not in conflict with the Applicable Regulations. In accordance with the provisions of Government Code Section 66452.6, all tentative maps, and all permits and other approvals, shall be extended, from time to time in increments of not less than 36 month periods, pursuant to application by Property Owner, consistent with the Term of this Agreement. In light of this Agreement, the ten (10) year limitation in Section 66452.6 shall not apply. The number of phased final maps that may be filed shall be determined by the City's Planning Commission, subject to appeal to the Mayor and Council, at the time of approval or conditional approval of a tentative map. Such tentative and final maps shall comply with State and Federal laws, but may be exempted from certain regulations and requirements which do not threaten the public health, safety and welfare. The Vested Provisions may be modified only by the City as it determines to address a compelling public necessity regarding health and safety that cannot reasonably be addressed by other means or to comply with any later adopted federal or state law or regulation. [Note: All references in this Agreement to "map" or "maps," "tentative map" or "tentative maps," whether capitalized or lower case, shall, unless specifically designated to the contrary, mean and refer to tentative subdivision maps, final subdivision maps, and tentative parcel maps and final parcel maps, all as defined in, and regulated by, California Government Code, Sections 66410 et seq (collectively, the "Subdivision Map Act" or the "Map Act."] 4 ....- 1.3 Updating of Applicable Regulations. The foregoing notwithstanding, the Parties recognize that planning and design considerations are constantly evolving and being modernized, and that development of the Project may from time to time require updating of City regulations and standards in order to achieve the most desirable outcomes for the City from the Project. Accordingly, the City agrees that it shall diligently and in good faith review and process to final action any proposals made by the Property Owner for such updating of City regulations and standards. '- 1.4 Fees and Fee Credits. The Parties recognize that fees which may be imposed by the City ("City Fees") upon the Project fall within two categories: (i) fees for processing applications for City actions or approvals ("Processing Fees"); and (ii) fees or other monetary exactions which are established or contemplated under City ordinances or resolutions in effect as of the effective date of the resolution approving this Agreement and which are intended to defray the costs of public facilities or other amenities related to development projects (e.g., parks, streets and traffic controls) ("Impact Fees"). i. Processing Fees. The City may charge Processing Fees against the Project based upon the lesser of (A) the fees applicable at the time of the Property Owner's application for City action or approval, or (B) the fees applicable as of the Effective Date of approval of this Agreement by the City, in either case subject to the limitations in Paragraph l.4.iii below. A list of the categories and amounts of Processing Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit "C". ii. Impact Fees. Attached as Exhibit D is the fee schedule ("University Hills Fee Schedule") with categories as previously approved by the City for the Paradise Hills Project. Also attached as Exhibit D is the City's current fee schedule ("Current Fee Schedule"). For the first 504 single family residential building permits issued by the City, City shall use and assess impact fees consistent with the Paradise Hills Fee Schedule. Commencing with the 50Sth single family residential building permit issued by the City, City shall use the Current Fee Schedule. The Impact Fees set forth in the Current Fee Schedule shall remain unchanged for the first ten (10) years after the Effective Date. Thereafter, the Impact Fees set forth in the Current Fee Schedule shall adjust upward by 2% per year. The Property Owner may defer payment of Impact Fees related to any structure until the time of City's release of utility meters or a period of 18 months from the time building permits are issued, whichever occurs first (i.e., pro rata payment as to each applicable structure as such structure has meters released). For any public facilities constructed by Property Owner which are included in any current Impact Fee list, such fees shall be either credited in lieu by City or if previously paid, then reimbursed to Property Owner. The amount of the credit will be limited to the amount of cost estimated for the improvements as identified in the associated Fee Study regardless of the actual cost. The amount of the credit shall not exceed the amount of the respective fee being credited. In the event that only a portion of a facility identified in the Fee Study is constructed, the credit amount will be a prorated amount that reflects the appropriate portion of the I"""""" estimated cost of the facility as identified in the Fee Study as determined by the Director of '''"- S c Public Works. A list of the categories and amounts of Impact Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit "D". lll. Fee Categories. The City shall not impose upon the Project any categories of fees or other monetary exactions which are not included within (A) the Processing Fees as those categories exist as if the date of this Agreement, or (B) the Impact Fees as those categories existed as of the date of adoption of the Project Approvals, unless required by state or federal law or regulations. IV. Mitigation of Impacts. The Parties anticipate that, in addition to paying various fees to the City, the Property Owner will develop various public improvements as components of the Project, or in satisfaction of conditions of approval of the Project. To the extent that the Property Owner develops improvements which mitigate the impacts of the Project upon public facilities or infrastructure that are identified in a Fee Study associated with an Impact Fee, or the Property Owner secures such improvement in a manner reasonably acceptable to the City, the Property Owner shall be entitled to credits against any such Impact Fees in an amount equivalent to the estimated cost for such improvement as identified in the Fee Study as of the date that any such facility or other item of infrastructure is conveyed to and accepted by the City. As to any category of such public facilities or infrastructure in which the Property Owner develops or secures the development of all such public improvements required to serve the Project, the Property Owner shall be entirely exempt from that category of Impact Fees. In particular, in recognition of: (A) The significant permanent public open space, improved parkland and public trails provided for in the Specific Plan. (B) Provided, however, that in the event that, at the time of the first closing of an escrow for the sale and conveyance of each Lot improved with a residential structure within a final approved and recorded subdivision map ("Map") within the Project, one or more of the public facilities or infrastructures which have been made conditions in such Map, has not been completed and for which construction has not been bonded, then Property Owner shall pay the pro-rata Impact Fee due on each such closing for such public facility or infrastructure required as a condition for that Map. All such payments shall be held by City in a separate account until the earlier to occur of: (i) Property Owner's completion of such public facility or infrastructure or the bonding thereof, or (ii) City has issued 500 building permits. If the action in (i) above has occurred, then City shall refund to Property Owner all previously paid Impact Fees for such public facility or infrastructure, but if that activity has not occurred by the time set forth in (ii), then City shall be free to use those Impact Fees for the construction of such public facility or infrastructure, and Property Owner shall continue thereafter to pay the pro-rata Impact Fees for such public facility or infrastructure for the balance of first escrow closings for Lots in that Map. (C) In lieu of any park fee otherwise required by the City to be paid by Property Owner in connection with the approval of a tentative or final map 6 r- '- pursuant to local ordinance or Government Code Section 66477, Property Owner may contribute land for any park site and/or construct any park improvements so required, and subject to the approval and acceptance of the Mayor and Council of the park site and/or park improvements, the Property Owner shall receive full credit for the value thereof. (D) The sewer lift station required to service a portion of the Project shall be acquired by the City (or a sub-agency thereof) through financing provided by either a community facilities district or an assessment district (see Section 1.10) and shall be maintained by the City (or a sub-agency thereof) through a landscape maintenance district or similar assessment district. c v. Public Improvements: Reimbursements. It is understood that during Property Owner's development and construction of the Project, Property Owner likely will design, construct and/or install public improvements or facilities (collectively, "Facilities") which benefit other development projects or properties ("Benefited Properties") or the public in general in addition to the Project, including (i) those Facilities for which Property Owner would otherwise be charged an Impact Fee, and (ii) those Facilities which are included in the City's Capital Improvement Program ("CIP"). Included by way of example as Facilities are: (i) the extension of Campus Parkway from its current easterly terminus which is an improvement called for in the City's General Plan, for the benefit of CSU and the public, and (ii) any other improvements to be constructed at both the intersection of Northpark Boulevard and Campus Parkway and the intersection of Little Mountain Road and East Campus Circle, including all traffic signalization systems. Property Owner shall be entitled to reimbursement and/or waiver of Impact Fees, as provided below, for such Facilities, based on the following methods, and subject to the following limitations: (A) For Facilities approved and accepted by the City, and which are included in the City's adopted CIP budget, Property Owner will receive a reduction (or credit) in the Impact Fee(s) specifically applicable to that Facility, such reduction to be equal to the amount budgeted ("CIP Budget") by the City for such completed Facilities; and then (B) To the extent the reduction of Impact Fee(s) owed by Property Owner and the funds, if any, held in the CIP for that Facility and disbursed to Property Owner are insufficient to account for the full amount of the CIP Budget for such Facilities, then City shall enter into a reimbursement agreement ("City Reimbursement Agreement") for a term of not less than five (5) years and not greater than ten (10) years with the Property Owner so that future funds from such Reimbursement Agreement(s) and from other funding sources will flow into the CIP and then be disbursed to Property Owner. ,.-- '- vi. Maintenance Responsibilities. The Project Approvals include requirements for the construction by Property Owner, from time to time, of certain infrastructure, both on-site to the Property and off-site. The schedule of such infrastructure improvements, including a plan identifying their locations and a matrix of terms for completion of the improvements will be conveyed for maintenance is attached as Exhibit 7 c "G." The City's maintenance for items which are outside its normal responsibility shall be funded partially or wholly through a financing method such as an LMD, CFD, IFD, CSA or similar method. Examples include the Sewer Lift Station, the maintenance of slopes or street lights. vii. Attached Multifamily Restriction. For purposes of this provision, the portion of the Property upon which the Project will be located (sometimes referred to as the "Project Site)," shall be divided into three (3) areas: "West Area," "Central Area," and "East Area." The West Area shall consist of Planning Area 1 through Planning Area 7, inclusive, and Planning Area 1 O. The Central Area shall consist of Planning Area 7 through Planning Area 9, inclusive, Planning Area 11 through Planning Area 15, inclusive, and Planning Area 21 and Planning Area 22. The East Area shall consist of Planning Area 16 through Planning Area 20, inclusive. Prior to that date when one single family detached subdivision within the West Area, Central Area or East Area has (A) completed (1) at least 26 residential units and (2) at least one park of a minimum ~ acre size, and (B) the City has completed its final inspection, the City shall not be required to issue any building permits for attached multifamily units in that same West Area, Central Area or East Area (other than for senior restricted products pursuant to Civil Code Section 51.3, affordable housing pursuant to applicable provisions at Sections 65580 et seq. and elsewhere in the California Government Code, or studenVfaculty housing for the Faculty/Staff Housing Parcel (PA 16), each of which is exempt from this restriction). /~ 1.5 Building Permits. The Property Owner shall have the right to obtain building permits necessary for construction of the maximum number of dwelling units and other structures permitted by the Project Approvals, consistent with the other requirements and conditions in this Section 1. 1.6 Processing of Applications: Final Action. The Parties recognize that there are additional approvals required by the Property Owner from the City in connection with carrying out the Project pursuant to the Project Approvals, including but not limited to one or more Maps. During the term of this Agreement, the Property Owner shall have a legally vested right, subject to the proper exercise of discretion (limited by law and Property Owner's vested rights) by the Planning Commission, the Mayor and Common Council, and such other boards and commissions of the City of San Bernardino as required by the law thereof and applicable thereto, to obtain such additional approvals and to carry out the Project in accordance therewith. Any tentative subdivision map prepared for the Project shall, in accordance with Government Code Section 65867.5, comply with the provisions of Government Code Section 66473.7 and shall be extended, from time to time as required, pursuant the Government Code Section 66452.6. i. The City shall diligently and in good faith process in as expeditious a manner as reasonably 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 8 c Development Plan. In no event shall such processing exceed the time periods set forth in any applicable state laws and local ordinances or regulations. The foregoing requirements are subject to the Property Owner's applications for such additional approvals being in proper form for submittal and processing, including all required documents, information and fees, based on the City's generally applicable standards in effect at the time of submittal. ii. The Project shall be exempt from any moratorium or other restriction on the acceptance, processing or approval of development-related applications and/or of issuance of development-related permits, except as otherwise required by state or federal law. The timing of acceptance, processing and approval of such applications and the issuance of such permits shall not be affected by any limitation imposed after the date of approval of this Agreement upon the number of lots or permits which may be approved by the City, including limitations pertaining to particular time periods. Any conditions or requirements imposed by the City in connection with any such approvals or permits shall not exceed those typically imposed by the City in connection with similar approvals for other development projects in the City. 11l. In connection with City's commitment to expedited processing of entitlements, maps and plans, the City shall, with the concurrence of Property Owner as to the cost, engage consultants or assign City staff for the purpose of coordinating, facilitating, expediting and/or reviewing subsequent applications by the Property Owner to the City for additional approvals and permits related to the Project. The Property Owner shall bear the costs of compensation of such specially assigned consultants and staff and any other City expenses associated with such persons, except as otherwise provided herein. The consultants and staff assigned to the Project shall at all times be persons having a level of training and experience commensurate with the size and complexity of the Project and the diversity of further approvals and permits required for the Project. 1.7 Timing of Development. The Parties acknowledge that development of the Project will be affected by numerous factors outside the control of the Property Owner, e.g., general economic conditions, interest rates and market demand. Accordingly, the Parties hereby acknowledge and agree that the Property Owner may develop the Project in such order and at such rate and times as are appropriate within the Property Owner's business judgment, subject to compliance by the Property Owner with the Project Approvals and such other conditions and requirements imposed by the City and not in conflict with this Agreement. In regard to the timing for construction of, or the bonding for the construction of, the facilities identified in sub parts (B) and (C) of Section 1.4 (iv), City shall not be obligated to issue the sooth building permit for construction of a residential structure within the Project until Property Owner has either commenced construction of those facilities or bonded for their construction. All Impact Fees paid by Property Owner for those facilities identified in (B) and (C) of Section 1.4 (iv), up to the SOOth building permit, shall be held by the City in a separate account, and shall be refunded to Property Owner upon commencement by Property Owner of construction of those facilities, or upon the posting of bond(s) for construction thereof. ,,-. \....- 1.8 Public Services. 9 c i. Following satisfaction by the Property Owner of the requirements to obtain the necessary permits to carry out each phase of the Project, in accordance with the Project Approvals, the City shall provide to the Project all municipal services required to carry out the Project (including but not limited to services and/or facilities toward which the Property Owner has paid Impact Fees) which are provided by the City to other similar situated property owners, at a cost no higher basis than is charged to such other property owners, provided that the Property Owner complies with all requirements of the Project Approvals pertaining to construction and/or financing of improvements related to such services, and further provided that there are no physical impediments which make it impossible for the City to provide any particular service to the Project as determined by the City in the exercise of its discretion. ii. The City recognizes the importance to the Project of extending public transit services to the Project site. The City shall use its best good faith efforts to secure such service. 1.9 [Intentionally deleted.] 1.10 Public Financing. '-' i. The City shall cooperate with the Property Owner in making available means of public financing for acquisition and maintenance of some or all of the public facilities and/or services required to be constructed or provided in connection with the Project and Impact Fees required to be paid in connection with the Project, pursuant to the Project Approvals. Upon application by the Owner, the City shall initiate proceedings for the establishment of one or more public facilities districts, community facilities districts, landscape maintenance districts or other similar financing mechanisms, or, alternatively, shall initiate proceedings regarding participation in one or more such financing mechanisms established by another public agency. The City's obligations in this regard shall be subject to and consistent with the City's ordinances and policies, regarding use of public fmancing, as well as any applicable provisions of state law, and shall be consistent with the Public Facilities Financing Plan attached hereto as Exhibit "B". ii. In establishing or participating in any special financing district other than a community facilities district, the City shall, to the greatest extent feasible, include in such district all property which will receive any identifiable benefit from the facilities and/or services to be provided or financed thereby. To the extent that it is infeasible to include any such benefited property in a district, the City shall take all reasonable steps to ensure that the Owner or developer of such property is required to enter into a reimbursement agreement with the Property Owner, whereby the Property Owner will recover from such other owner or developer a pro rata share of the cost of the facilities and/or services financed by the district. /_$k Ill. The Property Owner acknowledges that provision of public financing, as well as other forms of financial assistance which the City may provide to the Project, may cause the Project or portions thereof to become subject to wage payment and contract bidding requirements which are not otherwise applicable to private development projects, and that the City makes no representations as to the likelihood of such requirements becoming applicable '- 10 c to the Project. Property Owner agrees to indemnify, defend and hold City hannless from any claim made regarding the failure to pay prevailing wages (as required by Section 1771 of the California Labor Code) for any public work (as defined in Section 1720 of the Labor Code) constructed by it on the Project. 2. Status of Proiect Approvals. 2.1 Term of Approvals. The Project Approvals (including tentative subdivision maps) shall remain valid and in effect for the entire Term of this Agreement, and the City shall take no action to rescind, revise or otherwise modify the Project Approvals, except at the request of or with the consent of the Property Owner, or as otherwise required by law. 2.2 Consistency of Land Use Designations. The Parties recognize the importance of maintaining the planning and design integrity of the Project and of ensuring that there is compatibility between those features of the Project and the surrounding community to the greatest extent feasible. Accordingly, the City shall not modify any land use designation outside the Project boundaries in such a way as to preclude or interfere with all or any part of the Project without proper notice of such proposed modification to the Property Owner. 3. Term of Agreement. 3.1 Initial Term: Extensions. The term ("Term") of this Agreement shall commence on the Effective Date and shall, subject to the provision below in 3.1.1, extend for an initial period of twenty (20) years thereafter ("Expiration Date"). 3.1.1 Completion of Certain Plans and Improvements. Pursuant to the "5 Year Performance Requirement" plan, more particularly described in Exhibit "F," within the first five (5) years after the Effective Date, off-site rights.of-way must have been acquired; the "deemed complete" construction plans for the backbone infrastructure, including Campus Parkway and Little Mountain, with adjacent improvements shall be submitted; and the "deemed complete" plans for the first phase of single family detached structures with an associated park, shall have been submitted to the City. 3.1.2 First Extension. Subject to the proviso that the last annual review performed by the City prior to the Expiration Date, pursuant to Section 10 below, has determined that the Property Owner is in good-faith compliance with the terms of this Agreement, the Expiration Date may be extended for an additional period of five (5) years at the sole discretion of the Mayor and Common Council ("First Extension"). 3.1.3 Second Extension. Subject to the proviso that the last annual review performed by the City prior to the expiration of the First Extension, pursuant to this Section 3.1, determines that the Property Owner is in good-faith compliance with the terms of this Agreement, then the Expiration Date may be extended for an additional period offive ,'''- (5) years at the sole discretion of the Mayor and Common Council ("Second Extension"). ---- 11 ....-. '- --. ..- \...- 3.1.4 Property Owner Response: Special Circumstances. In the event City has concluded, either in the last annual review for the First Extension or for the Second Extension, that Property Owner is not in good-faith compliance with the terms of this Agreement, City shall give Property Owner adequate written notice thereof (not less than 30 days notice) and Property Owner shall be entitled to adequate opportunity to advise the City of special circumstances which should be considered in any proposal to terminate this Agreement. Such special circumstances might include, by way of example, the existence of public or private funding which relies on completion of the Project, commitments made to other public agencies or to the DRE, commitments made to CSU, and commitments made to purchasers of dwellings within the Project. 3.2 Proiect Completion. If not already terminated by reason of any other provision hereof, this Agreement shall automatically terminate upon the occurrence of all of the following: (i) total build-out of the Project pursuant to the Project Approvals and any amendments thereto; (ii) the issuance of all occupancy permits for improvements on the Property; (iii) acceptance by the City of all dedications of public rights-of-way and public improvements; (iv) documented transfer and acceptance for the purposes intended of all parts of the Project to be transferred to third party entities per the Project Approvals; specific reference is hereby made to transfers to be made to California State University San Bernardino for purposes' of open space and for faculty housing and ownership of the club house and pool to the master homeowner's association; (v) Completion and recording as a deed restriction and a covenant running with the land of conditions, covenants, and restrictions (CC&R's) applicable to all single-family and multi-family residences in the Project; such CC&R's shall be submitted to the City for approval prior to recordation and shall include a provision that the City may, but shall not have the obligation to, enforce any provision contained therein and shall be entitled to recovery of its costs; the CC&R's shall expressly state that each lender, upon default of the property owner shall, upon taking possession of the property, or when notified by the City or any holder of a right under the CC&R's that the property has been abandoned by the property owner, whichever notice occurs earlier, shall be bound by all covenants thereof with respect to the maintenance and the payment of any fees or association dues applicable to the property; and (vi) establishment of one or more home owner's association ("Association(s)") or other entities for the collection of costs of maintenance of the non-public recreational facilities and lands of the Project. There shall be a master association which extends to all residential properties, single-family and multi-family in the Project. There may be established such lesser associations as deemed appropriate by the Property Owner. The by-laws of the association(s) shall be submitted for approval by the City before recordation or filing with the appropriate authorities of the State. The by-laws and rules of such association shall be subject to the conditions respecting the City as set forth above for CC&R's. Where all such conditions have been satisfied with respect to any phase of the Project, consisting of one or more Planning Areas designated in the Specific Plan, then this Agreement shall continue to apply to that phase until occurrence of the above-described conditions for the entire Project, except upon written agreement of the Property Owner and the City. As used herein, "total build-out" shall mean the completion of all construction in the Project, of all buildings, structures, infrastructure, improvements, landscaping and associated amenities contemplated or permitted by the Specific Plan, all other infrastructure required by the 12 c '- ...-, L Project, and performance by the Property Owner and the City of all of their respective obligations hereunder. 4. Binding Effect of Agreement. 4.1 Covenant. This Agreement shall bind, and inure to the benefit of, the respective Parties and their successors in interest, including their heirs, representatives, assigns, partners and investors, and all other persons and entities acquiring any rights or interests in the Property or any portion thereof, whether by operation of law or in any other manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to Sections 1460 et seq. of the California Civil Code. 4.2 No Property Interest. Nothing herein shall be construed as a dedication or transfer of any right or interest in, or as creating a lien with respect to, title to the Property. 5. Assignment. 5.1 Right of Assignment. The Property Owner may assign its rights and obligations hereunder to any other person or entity ("Assignee"), at any time during the term of this Agreement, provided that: (i) (a) such assignment shall occur in connection with sale, hypothecation or other transfer of a legal or equitable interest in the Property or a portion thereof, including any foreclosure of a mortgage or deed of trust or a deed in lieu of foreclosure, or in connection with formation of a new entity which is the assignee and in which the Property Owner is a partner, member or other form of co-owner, or (b) such assignment results from the formation, by Property Owner, of a new legal entity, in which Property Owner has an interest, which will own all or a portion of the Property; and (ii) the assignee demonstrates the following, to the reasonable satisfaction of the City Manager: (a) the ability to perform or secure any public improvement obligations required by the City in connection with the Project phase or other interest being transferred, as identified in the conditions of approval of the applicable subdivision map or elsewhere in the Project Approvals; (b) the financial capabilities to meet the obligations of this Agreement as they relate to that portion of the Project assigned to Assignee; and (c) its expertise in managing projects similar in size to the Project phase or other interest being assigned. The City shall give the Property Owner written notice of its satisfaction or dissatisfaction with the proposed Assignee within thirty (30) calendar days of receipt by the City of the information the City requires pursuant to this Section. The City's failure to timely communicate to Property Owner its approval or disapproval shall result in City being deemed to have approved. The City shall, to the extent permitted by law, treat all such information as confidential and proprietary, to be made available solely to City officials and staff required to review it in order to carry out the purposes of this paragraph. 5.2 Notice Requirement. The Property Owner shall give the City notice of any such assignment, and the Assignee shall provide the City with notice acknowledging 13 c r '-- r. \.....- its acceptance of its obligations hereunder as a successor in interest to the Property Owner. Upon such assignment, the acceptance thereof by the Assignee and provision of the required notices to the City by both the Property Owner and the Assignee, the Property Owner shall be relieved of its rights and obligations hereunder to the extent that such rights and obligations have been specifically transferred to and accepted by the Assignee. Only upon compliance with all of conditions set forth in Sections 5.1, 5.2 and 5.4 shall there be an assignment hereunder (the "Assignment"). 5.3 Compliance with Project Approvals. Each Assignee acquiring all or any portion of the Property, and thus becoming an Assignee of the rights and obligations in this Agreement to the extent of such property acquisition, shall be entitled to each and all of the rights, and be subject to each and all of the conditions and obligations, set forth in, and established by, the Project Approvals. Subsequent to an Assignment under this Section 5.2, all references in this Agreement to "Property Owner" shall mean and refer, instead, to the Assignee as such references pertain to a portion of the Project acquired by the Assignee. 5.4 Effect of Assignment: Effect of Default. Upon Assignment and approval of that Assignment as provided in Section 5.1, such Assignee shall be entitled to all of the rights and be subject to all of the obligations as set forth in this Agreement, as such rights and obligations apply specifically, either wholly or pro-rata, to that portion of the Project to which Assignee has acquired an interest as the result of such Assignment. Such rights and obligations shall include, by way of example only, the obligations concerning Impact Fees and the rights concerning waivers and refunds, each and all as they apply to that portion of the Project so assigned. Any default by the Property Owner in the terms or conditions of this Agreement or in the Project Approvals, existing at the time of assignment of any of its rights and obligations hereunder, shall remain the obligation of the Property Owner, unless the Assignee expressly accepts such obligation and the City expressly approves the assignment of such obligation. Any default by the Assignee in the terms or conditions of this Agreement or in the Project Approvals, occurring after the time of assignment of any rights and obligations of the Property Owner to the Assignee, shall be solely the responsibility of that Assignee, and shall not be deemed to be a default by either the Property Owner or any other Assignee and shall not affect the rights occurring to any other portion of the Property pursuant to this Agreement or the Project Approvals. 6. Notices. 6.1 Form of Notice. All notices between the City and either the Property Owner or an approved Assignee given pursuant to the provisions of this Agreement, shall be in writing and shall be given by personal delivery, facsimile or mail. City shall have no notice obligation to any party otherwise bound to this Agreement pursuant to Section 4.1 above except as specifically set forth herein or as otherwise agreed in writing. Notice by personal delivery or facsimile shall be deemed effective upon the delivery of such notice to the Party for whom it is intended at the address set forth below (or, in the case of an Assignee, at the address specified by such Assignee in a written notice to the City). Notice by mail shall be deemed effective two (2) business days after depositing such notice, addressed as set forth below, properly sealed, postage prepaid, registered or certified, return receipt 14 .r' '-' requested, with the United Stated Postal Service, regardless of when the notice is actually received. The addresses to be used for purposes of notice shall be: To City: City of San Bernardino Attn: City Manager 300 N. "D" Street, 6th Floor San Bernardino, CA 92418 Facsimile: (909) 384-5138 With a copy to: City Attorney City of San Bernardino 300 "D" Street, 6th Floor San Bernardino, CA 92418 Facsimile: (909) 384-5238 To Property Owner: Inland Communities Corp. Attn: Jim Ahmad, President 7536 Lolina Lane Los Angeles, CA 90046 Facsimile: (323) 874-8800 With a copy to: William C. Holzwarth, Esq. Dzida, Carey & Steinman 3 Park Plaza, Suite 750 Irvine, CA 92614 Facsimile: (949) 399-0361 6.2 Change of Address. Any Party may change the address to which notices are to be sent at any time by giving written notice of such change in the manner provided above. 7. Amendment of Agreement. 7.1 Formal Amendment. This Agreement, including the term hereof, may be amended from time to time by mutual consent of the Parties, in accordance with the provisions of Municipal Code 19.40 and Government Code Section 65868. 7.2 Clarification. r-' \.....- The foregoing notwithstanding, the Parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. If and when the Parties find that changes or adjustments are necessary or appropriate, which changes do not necessitate a formal amendment of the Agreement as determined by City in the exercise of 15 ~ \..... its discretion, they shall, unless otherwise required herein or by law, effectuate the changes or adjustments as follows: 7.2.1 Community Development Director Authority. subiect to appeal permitted by the Municipal Code shall apply to the following requests for change or modification: (a) Approval of minor site plan revisions; (b) Changes in Project infrastructures; (c) Product types; Reporting Program; (d) Annual review and approval of the Mitigation Monitoring and (e) Minor revisions to Design Guidelines; (f) Density transfer between Planning Areas without exceeding to top number of units allowed by the approved Specific Plan. 7.2.2 Planning Commission Authority. subiect to appeal permitted by Municipal Code shall apply to the following requests for change or modification: (a) Change in total number of proposed Units; (b) Approval of major site plan revisions; (c) Major revisions to Design Guidelines; (d) Minor revisions to Land Use Plan when uses could be considered accessory to approved uses; and ( e) Increase/decrease in number of lots. 7.2.3' City Council Authority shall apply to the following requests for change or modification: (a) Alteration of the permitted uses of the Property; (b) Increase in the intensity of use or the number of lots; and (c) Deletion of a requirement for the reservation or dedication of land for public purposes except for minor boundary adjustments approved by the Community Development Director. 16 8. Interpretation and Enforcement of Agreement. 8.1 Complete Agreement. This Agreement represents the complete understanding between the Parties, and supersedes all prior agreements, discussions and negotiations relating to the subject matter hereof. No amendment, modification or cancellation of this Agreement shall be valid unless in writing and executed by the Parties, other than pursuant to Section 11 below. 8.2 Severability. If any provision of this Agreement is determined to be invalid or unenforceable, the remainder of the Agreement shall not be affected thereby and shall remain in full force and effect, unless such invalidation renders any remaining provisions impossible or impractical to enforce. 8.3 Conflict with State or Federal Laws. In the event that any state or federal laws or regulations, enacted after the effective date of this Agreement, prevent or preclude compliance by either Party with any provisions hereof, such provisions shall be modified or suspended to the extent necessary to comply with such state or federal laws or regulations. 8.4 Applicable Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of California and any applicable laws of the United States of America. 8.5 Prevailing Party. In the event of any action or proceeding brought by either Party against the other to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover reasonable costs and expenses, including attorneys' fees, incurred in connection therewith, including the costs, salaries, and expenses of the City Attorney and his staff. 8.6 Defense of Agreement. In the event of any action or proceeding brought by a third party, whether a private or governmental person or entity, challenging the validity of this Agreement or any provisions hereof, the City shall actively defend against any such action or proceeding, including taking all reasonable measures to protect the enforceability of the Agreement. The Property Owner shall pay all actual, reasonable legal expenses associated with such defense. The Parties shall cooperate in defending against any such challenge. The City shall consult regularly with the Property Owner regarding such defense and shall notify the Property Owner of any significant developments relating to the action or proceeding. During the entire course of any such challenge, including any review up to a court of final jurisdiction, this Agreement shall remain in full force and effect.i "i:,.,~ 17 8.7 Authority of Signatories. The Parties represent and warrant that the persons signing this Agreement on their behalf have full authority to bind the respective Parties. 8.8 Indemnification. The Property Owner agrees to and shall defend, indemnify and hold harmless the City and its officers, employees, agents and contractors, against any and all claims, damages, awards, actions or causes of action and expenses (including, but not limited to, attorneys' fees and costs of litigation) to which the City and its officers, employees, agents and contractors may be subjected by reason of the City's approval of this Agreement, or any work done or omission made by the Property Owner and its agents, officers or employees, in connection with, arising out of or resulting from the approval or performance of this Agreement. 8.9 Waiver and Delays. Failure by either Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or failure by either Party to exercise its rights upon a default by the other Party, shall not constitute a waiver of any right to demand strict performance by such other Party in the future. 8.10 Third Party Actions. Nonperformance by either Party shall not be excused because of a failure of a third person, except as specifically provided herein. 8.11 Force Majeure. Neither Party shall be deemed to be in default for 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 or other labor difficulties, government agencies and their regulations, or other causes beyond the reasonable control of the Party claiming the force majeure. If any such event shall occur, the term of this Agreement and the time for performance by the Property Owner of any of its obligations hereunder shall be extended by the period of time that such events prevent it from proceeding with development of the Project. 9. Effect on Property. 9.1 Estoppel Certificate. Any Party may, at any time and from time to time, deliver written notice to another Party requesting certification in writing that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Agreement has not been amended, or, if so amended, identifying the amendments; and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or, if in default, describing the nature and extent of any such default. A Party receiving a request hereunder shall execute and return such certificate within thirty (30) calendar days following the receipt thereof. The City Manager of the City shall have the authority to execute any such certificate requested by the Property Owner. The City acknowledges that a certificate hereunder may be relied upon by transferees and mortgagees. 9.2 Release of Lots from Agreement. Subject to City's final inspection of the Lot. and structures, promptly upon the written request of the Property Owner, the ""-- City shall execute a document, in a recordable form, releasing any Lot for which a final 18 r- '-.. Map has been recorded and which has been sold or leased to a retail purchaser, from the effects of this Agreement, and deliver such document to the Property Owner. 10. Periodic Review of Compliance with Agreement. 10.1 Annual Review. This Agreement shall be subject to annual review, pursuant to California Government Code Section 65865.1. Within thirty (30) calendar days following each anniversary of the date of recording of this Agreement, the Property Owner shall submit to the City Manager of the City written documentation demonstrating good-faith compliance with the terms of this Agreement ("Annual Report"), to the extent that the Property Owner has taken or is required to take any action pursuant to this Agreement. Failure by the Property Owner to submit the Annual Report in a timely manner shall not itself constitute a breach of this Agreement, unless the City has first given the Property Owner a minimum of thirty (30) calendar days notice thereof and the Property Owner fails to submit the Annual Report within thirty (30) calendar days after receipt of such notice. As of the Effective Date, City shall establish a reasonable fee for its annual review and the Annual Report. Such annual fee may be adjusted every 5th anniversary of the Effective Date to cover increased costs incurred by the City for such annual review. 10.2 Contents of Report. The Annual Report and any supporting documents shall describe (i) any permits or other approvals which have been issued or for which application has been made and (ii) any development or construction activity which has commenced or has been completed since the recording date or the date of the preceding annual review. The City shall review all the information contained in such report in determining the Property Owner's good faith compliance with this Agreement. 10.3 Waiver. The City does not waive any claim of defect in performance by the Property Owner if, at the time of an annual review, the City does not propose immediately to exercise its remedies hereunder. However, in the event that the City, following receipt of the Annual Report for any year, fails to review the information contained therein and/or to determine the Property Owner's good faith compliance with this Agreement within 90 calendar days following date of such receipt, the Property Owner shall be deemed to be in good faith compliance with regard to the period covered by that Annual Report. 11. Violations. 11.1 Violation by Property Owner. i. The Property Owner shall be deemed in violation of the terms of this Agreement if a finding and determination is made by the City Manager, upon the basis of substantial evidence, however received, that the Property Owner has not complied with one or more of the material terms or conditions of this Agreement. A default on the part of an ,-- Assignee after an Assignment pursuant to Section 5 above shall not constitute a violation of "'- this Agreement by the Property Owner. 19 ii. If the City Manager believes the Property Owner to be in violation of this Agreement, the City Manager or his or her designee shall give the Property Owner thirty (30) calendar days written notice specifying the nature of the alleged violation and, when appropriate, the manner in which the violation may be satisfactorily cured. Failure or delay in giving notice of a violation shall not constitute a waiver of such violation. Ill. The Property Owner may appeal the allegation of violation by filing a notice of appeal with the City Clerk, within the thirty (30) calendar day cure period described in the preceding paragraph. The Property Owner's appeal shall be placed on the agenda of the next regularly scheduled meeting of the City Council, which shall be an open meeting but not a public hearing. If the City Council finds that a violation has occurred and is continuing, the Property Owner shall be given sixty calendar (60) days within which to cure such violation; provided that such time period may be extended by the City Manager for not to exceed 180 calendar days, upon a determination that the Property Owner is engaged in making good faith efforts to cure the violation. At the next City Council meeting following expiration of the period allowed by the City Council for curing the violation, or any extension thereof, the City Council shall set forth by motion or resolution its determination as to (i) the continuation of the violation and (ii) any action to be taken, which action may include amendment or termination of this Agreement. Any action to terminate shall be in the form of a resolution and shall be supported by written fmdings. iv. After proper notice and expiration of the cure period without appeal, cure, or commencement of substantial effort toward a cure by the Property Owner, the City may take unilateral action by adoption of a resolution with written findings, to terminate or amend this Agreement. 11.2 Violation by City. i. The City shall be deemed in violation of the terms of this Agreement upon failure of the City to carry out any of its obligations hereunder. ii. If the Property Owner believes the City to be in violation of this Agreement, the Property Owner promptly shall notify the City, through its City Planner, to that effect, setting forth the grounds upon which a violation is claimed, facts in support of such grounds, and the means through which such violation may be cured. The City shall have thirty (30) calendar days following the date of receipt of the notice within which to take action to deny the claim, cure the violation or undertake substantial action toward the cure. ,""~ l .,,- Ill. If the action of the City is unsatisfactory to the Property Owner, the Property Owner may make an appeal to the City Council, provided that, within ten (10) days following the date of receipt of the notice of denial of the claim, or within ten (10) days following the date of expiration of the cure period described in the preceding paragraph, whichever occurs first, the Property Owner files with the City Clerk a notice of appeal to the City Council. The City Council thereafter shall consider this matter on the 20 ''''~''"' '. 4/,' , .-.' ~ llil! jllll'l.~'. ,IJ ,.' "'...." ,- agenda of its next regularly scheduled meeting, which shall be an open meeting but not a public hearing, at which the Property Owner may present information regarding the alleged violation. Based upon the information presented by the Property Owner, the City Council shall make a determination as to whether the City is in violation of this Agreement, as alleged by the Property Owner. ,-. 11.3 Legal Enforcement. Subject to the prior exhaustion of all administrative remedies set forth in Sections 11.1 and 11.2 above, each party hereby waives all rights save for the right of specific performance or other equitable remedy against the other hereunder and otherwise specifically set forth herein. This specifically constitutes an expression of the intent of the Property Owner, its heirs, successors and assigns, joint venturers and all others bound hereby, and the City to be a waiver of any alleged Constitutional violations that may be waived by the Parties and a waiver of any and all contractual damages of whatever source or type. Any such legal action shall be brought in the Superior Court of San Bernardino County, State of California, or in an appropriate federal court. 11.4 Mortgagee Protection. The Parties hereto agree that this Development Agreement shall not prevent or limit the Property Owner, in any manner, at Property Owner's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon by any mortgage, deed of trust or other security device. The City acknowledges that the lender(s) providing such financing may require certain Development Agreement interpretations and modifications and agrees, upon request, from time to time, to meet with the Property Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. The 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 Development Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust or any successor or assign thereof, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a person or entity who obtains title by deed-in- lieu of foreclosure ("Mortgagee") on the Property shall be entitled to the following rights and privileges. i. Mortgage Not Rendered Invalid. Neither entering into this Development Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. No Mortgagee shall have an obligation or duty under this Development Agreement to perform the Property Owner's obligations, or to guarantee such performance, prior to taking title to all or a portion of the Property; provided, however that a Mortgagee shall not be entitled to a building permit unless the Mortgagee satisfies all of the requirements under this Development Agreement, the Applicable Rules and any Future Approvals granted by the City. The above notwithstanding, the Mortgagee shall be on notice of and shall act in compliance with the requirement for a homeowner's association and CC&R's described herein. ,~ '''-' 21 c ii. Request for Notice to Mortgagee. The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, who has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive a copy of any Notice of Default delivered to the Property Owner. Failure of the City to provide notice to the Mortgagee as provided here shall not constitute a limitation on the City's ability to proceed against the Property Owner for a cure. 111. Mortgagee's Time to Cure. The City shall provide a copy of any Notice of Default to the Mortgagee within ten (10) calendar days of sending the Notice of Default to the Property Owner. The Mortgagee shall have the right, but not the obligation, to cure the default for a period of thirty (30) days after receipt of such Notice of Default. Notwithstanding the foregoing, if such default shall be a default which can only be remedied by such Mortgagee obtaining possession of the Property, or any portion thereof, and such Mortgagee actively seeks to obtain possession, such Mortgagee shall have until thirty (30) days after the date of obtaining such possession to cure or, if such default cannot reasonably be cured within such period, to commence to cure such default, and thereafter diligently prosecute such cure to completion. iv. Cure Rights. Any Mortgagee who takes title to all of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or a deed in lieu of foreclosure, shall succeed to the rights and obligations of the Property Owner under this Development Agreement as to the Property or portion thereof so acquired. Such Mortgagee shall not be liable for defaults or monetary obligations of the Property Owner arising prior to acquisition of title to the Property by such Mortgagee, except that, any such Mortgagee shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under this Development Agreement for the Property, or portion thereof acquired by such Mortgagee, have been paid to City and until all conditions, including installation of infrastructure and other improvements, have been complied with. 12. Relationship of Parties. In performing its obligations hereunder, the Property Owner is acting under this Agreement as an independent contractor and not as an agent or employee of the City. Further, nothing in this Agreement shall be construed as creating between the Property Owner and the City a partnership or joint venture for any purpose. 13. Exhibits. All exhibits referred to in, and attached to, this Agreement are incorporated herein by such reference. 14. Adoption of Agreement. Adoption of this Agreement by the City shall be by resolution. .,~ 15. Recording of Agreement. Within ten (10) days fOllowing the adoption by the City of the resolution approving this Agreement, or any subsequent amendment hereof, the City Clerk shall file a fully executed copy hereof with the County Recorder of San Bernardino County, State of California. Concurrently with the recordation of this ."-,, 22 ,.- ""-, Agreement, City and Property Owner shall cause the recordation of a document giving notice of the expiration of Development Agreement No. 91-03 and all application of the terms thereof to the Property. [BALANCE OF PAGE INTENTIONALLY LEFT BLANK.] ,'~~ '-' 23 ~ \..- IN WI1NESS WHEREOF, the Parties have executed this Agreement, to be effective as of the date set forth in the first paragraph hereof. "PROPERTY OWNER" "CITY" FONTANA CORNERS 111, L.P., a California limited partnership CITY OF SAN BERNARDINO, a municipal corporation By: ARADI, LTD., a Nevada corporation, its General Partner By: By: Charles McNeely, City Manager General Partner APPROVED AS TO FORM. )~~ James F. Penman, City Attorney ATTEST: Georgeann Hanna, City Clerk ."- \-. '- c State of County of On , 2012, before me, , a Notary Public in and for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of the foregoing paragraph is true and correct. that WITNESS my hand and official seal. Signature (Seal) State of California County of San Bernardino On , 2012, before me, , a Notary Public in and for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) ATTACHMENT 2 ,r- "- EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY -" ,r' I '-' WCH\'30610.0001\40S3lJ.312123J201 t 1 l- ,-. EXHIBIT "A" LEGAL DESCRlPTION OF PROPERTY PARCEL 1 (Assessor's Parcel No. 265-041-12): lHAT PORTION OF 1lJE EAST III OF SECTION S. L YlNG WITHIN THE LINE OF THE MUSCUPlABE RANCHO AND OF THE BAST Ifl OF SBCTION S, B011i OF TOWNSJnP 1 NORTH, RANGE 4 WEST. SAN BERNARDINO BASE AND MERIDIAN. IN TIm CITY OF SAN BERNARDINO, COUNfY OF SAN BERNARDINO. STATE OF CAUFORN1A, BEING A POR.TION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S. OOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO. LYING WESTBRL Y OF THE .WEST LINE OF THB LAND CONVEYED TO C. F. MARTIN BY DEED RECORDED FEBRUARY 14. 1922. IN BOOK 740. PAGE 199 OF DEEDS AND NORnmRL Y OF THE NORlH LINE OF TIlE LAND DESCRIBED IN PAIlCEL 4 OF THE DEED TO SAN BERNARDINO COUN1Y FLOOD CONTROL DISTRICf. RECORDED APRIL 23. 1940, IN BOOK 1415. PAGE 37. OFFICIAL RECORDS. . PARCEL 2 (Assessor's Parcel Nos. 265-051-12 and 265-051-13): THAT POR.TION OF 11iE WEST Ifl OF SECTION 4. LYING WITlDN TIlE LINE OF MUSCUPIABE RANCHO AND THE WEST 1/2 OF SECTION 9. BOTH OF TOWNSHIP 1 NORTH, RANGE 4 WEST. SAN BERNARDINO MERIDIAN. IN THE CITY OF SAN BERNARDINO. COUNlY OF SAN BERNARDlNO. STATE OF CALIFORNIA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S. GOVERNMENT SECrIONAL LINES ACROSS SAID RANCHO. DESCRIBED AS FOLLOWS: BEGJNNJNG AT CORNER. NO.1 ON LINE 27-28 RANCHO MUSCUPJABE ACCORDlNO TO THE PERRIN SURVEY. SAID CORNER BEING NORTH 890 03' WEST. 516.90 FEET FROM MUSCUPIABE RANCHO. CORNER M-28; THENCE SOUTH 8~ 03' EAST. 516.90 FEET TO SAID CORNER M-28; THENCE SOUTHERLY 173.17 FEET ON mE EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; 1HENCE SOUfHEASTERL Y. 785.30 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO A POINT wmCH IS DISTANT NORm 620 41' WEST. 195.51 FEET FROM THE NORTHEAST CORNER OF THE LAND DESCRIBED AS PARCEL NO.4 OF nm DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT.. RECORDED APRIL 23.1940. IN BOOK 1415, PAGE 37. OFFICIAL RECORDS; 11IENCE ON THE BOUNDARY LINE OF SAID PARCEL 4, THE FOLLOWING COURSBS AND DISTANCES; SOUTH 020 11' EAST. 526.41 FEET; THENCE SOUIH 250 30' WEST. 581.59 FEET; THENCE NORTH 3SO 31' WEST. 1966.20 FEET; 11IENCE NORTH 01024' 30" EAST. 674.55 FEET; lnlad..UHSB.DevAar.Y2 .",-, ? ~ r'" '-" THENCE NORTH 390 OS' WEST, 85.12 FEET TO AN ANOLE POINT THEREIN, SAID POINT ALSO BEING ON 1HE EASTERLY L1NE OF THE LAND CONVEYED TO C. F. MARTIN, RECORDED FEBRUARY 14, 1922, IN BOOK 740, PAOE 199 OF DEEDS; THENCE NORlHERL Y ALONG LAST SAID EASTERLY LINE, NORTH 410 09' EAST, SO FEET; THENCE NORTH 10058' WEST, 127.05 FEET; THENCE NORTH 41008' EAST, 241.56 FEET; THENCE NORTH 220 36' EAST, 626.13 FEET TO THE POINT OF BEGINNING. EXCEPT THE LAND CONVEYED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT IN DEED RECORDED SEPTEMBER 25, 1956, IN BOOK 4046, PAGE 396, OFFICIAL RECORDS. PARCEL 3 (Assessor's Parcel No. 265-061-16): THAT PORTION OF SECTION 9, LYlNG WITHIN THE LINE OF THE MUSCUPIABE RANCHO, IN TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALlFORNlA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXfENDED U.S. OOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO, DESCRIBED AS FOLLOWS: BEGINNING AT A CORNER M-28, ON LINE 27-28 RANCHO MUSCUPIABE ACCORDING TO 1HE PERRIN SURVEY; THENCE SOUTHERLY 1786.17 FEET ON THE EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; THENCE SOUTHEASTERLY, 980.81 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ON LAST SAID NORTHEAST LINE, SOUTH 620 41' EAST, TO THE NORlllEAST CORNER OF THE LAND CONVEYED TO THE SAN BERNARDINO COUNlY FLOOD CONTROL DISlRlCT BY DEED RECORDED MAY 14, 1957, IN Bool<. 4229, PAOE497, omclAL RECORDS; THENCE ON THE NORTHERLY LINE OF THE LAND IN THE DEED LAST MENTIONED, soum 600 03' 27" WEST, 563.37 FEET; THENCE NORTH 740 OS' 48" WEST, 1143.34 FEET TO A POINT IN THE EASTERLY LINE OF nm LAND DESCRIBED AS PARCEL 4 IN DEED TO SAID FLOOD CONTROL DISTRICT, RECORDED APRIL 1, 1940, IN BOOK 1415, PAGE 37, omcIAL RECORDs, SAID POINT BEINO SOUfH 030 SO' EAST, 816.73 FEET FROM TIm INTERSECTION OF SAID NORTHEASTERLY RANCHO LINE; THENCE ON LAST SAID EASTERLY LINE, NORTH 030 SO' WEST 816.73 FEET TO TIiE TRUE POINT OF BEGINNINO. PARCEL 4 (Assessor's Parcel No. 265-051-09): JnIIncl.UHSB.DevAar.v2 ---.. ''"'- ~ ( '-' THAT PORTION OF SECTIONS 4, 5, 8 AND 9, TOWNSHIP 1 NORTH, RANGE 4 WEST. SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE. OF CALIFO'RNIAt AS THE T.INES OF nm GOVERNMENT SURVEY MAY BE EXTENDED ACROSS TIlE MUSCUPIABE RANCHO, DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NO.1 ON LINE 27-28 RANCHO MUSCUPIABE, ACCORDING TO TIm PERRIN SURVEY, AT NORTH 89" 03' WEST, 516.9 FEET FROM CORNER NO. 28; THENCE SOUTIl220 36' WEST, 626.13 FEET TO CORNER NO.2; THENCE SOUTH 51008' WEST, 241.56 FEET TO CORNER NO.3; THENCE SOUlH 100 58' EAST, 127.05 FEET TO CORNER NO.4; THENCE SOUTH 41009' WEST, 283.26 FEET TO CORNER NO.5; THENCE SOUTIl160 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 27-38 MUSCUPlABE RANCHO; THENCE SOUTH 89" 03' EAST, 1142.6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER NO.1, THE PLACE OF BEGINNING. EXCEPTING lHEREFROM THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT 1llE SOU1HWEST CORNER OF LAND CONVEYED TO C. F. MARTIN BY DEED DA'IED DECEMBER 8, 1921 AND RECORDED FEBRUARY 22, 1922, IN BOOK. 740, PAGE 199, OF DEEDS; . THENCE NORm 890 53' EAST ALONG THE sourn LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST CORNER OF SAID MARTIN LAND; THENCE NORTH 160 12' EAST ALONG TIIE EAST LINE OF SAID MARTIN LAND, 291.68 FEET; THENCE SOUTIl670 12' WEST, 345.0 FEET; THENCE SOU1H 520 03' WEST, 17427 FEET TO A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 00 01 EAST ALONG SAID WEST LINE, 40.0 FEET TO THE POINT OF BEGINNING. PARCEL 5 (Assessor's Parcel No. 265-021-13): IIUId.UHSB.DtvAcr.v2 4 r I '- ,'-' ~ EXHIBIT "B" PUBLIC F AClLITIES FINANCING PLAN WCH\30610.0001\4OS31l.3 1212312011 5 r~~ EXHIBIT "B" MELLo-ROOS COMMUNITY FACILITIES DISTRICT PUBUC FACILITIES FINANCING PLAN ~ This Public Facilities Financing Plan (a Financing Plan") outlines the basic tems and conditions pursuant to which the City and the Property Owner will cooperate to establish one or more special districts or authorities) as provided under Callfomia law (collectively, aSpecial District") for the acquisition and/or construction of publiC improvements and payment of fees applicable to the Project. The principal goals of the Financing Plan are to: (i) establish reasonable certainty as to how the Special District shall be implemented; and (ii) provide for the issuance of Special District bonds in series order to minimize carrying costs. Consideration of CommunItY Facilities Districts. The City Council will consider the use of community facilities districts (hereinafter aCFD's.) as well as other financing methods to assist certain types of residential, and/or non-residential development, where, In the City's opinion, the financing of public facilities satisfies a public need, while having the financial security to reasonably assure a sound investment for potential bondholders and minimize any City exposure to liability for actions taken on behalf of public financing projects. CFD financing will be permitted for public improvements that will benefit the expected long-term property owners, and whose useful life will be equal to or greater than the longer of (a) five (5) years or (b) the term of the bonds. Boundary. The SpeCial District boundary shall encompass solely the Project. If requested by the Property Owner, the Special District may contain -multiple improvement areas" (1). Conslstencv with General Plan. The proposed development project must be consistent With the City's General Plan and have secured appropriate land use approvals from the City to allow for the implementation of the development of the area as contemplated. OwnershlD of Facilities. Facilities which, upon completion, are to be owned by public agencies shall be considered public facilities. Authorized Facilities. The Special District shall be authorized to finance the costs of construction of all on-slte and off-slte public improvements (aFaclllties" or aFacility"), and costs associated with formation of the District, required by the Project's condition of approval or this Agreement (aCosts.). Costs of the Facilities to be constructed by the Property Owner that are eligible to be financed in the Special District are as follows: . The actual costs for the construction of a Facility, including labor, materials and ;~ equipment costs; .\"-- 1 6 . The costs incurred in designing and preparing the plans and specifications for a Facility; . Fees paid for obtaining permits, licenses or other governmental approvals for a Facility; . Costs of construction management and supervision; . Professional costs associated with the Facility, such as engineering, inspection, construction staking, materials and testing and similar professional services; and . Costs directly related to the construction of a Facility, such as costs of payment, performance and/or maintenance bonds and insurance costs. Discrete components of the Facilities consisting of usable segments and various costs categories relating to such segments may be funded by the Special District. Examples of cost categories consisting of discrete components are as follows:- Streets . Planning, design, engineering and permitting; . Grading; . Paving; . Sidewalks; and . Final lift, asphalt cap and other final completion items and remaining soft costs. Wet Utilities (Sewer, Water Reclaimed Water, Storm Drain) . Planning, design, engineering and permitting; . Grading and trenching; . Installation of channels, pipes, basins, rip rap and other structures; and . Final completion items and remaining soft costs. Park and Trails . Planning, design, engineering and permitting; . Grading; . Installation of Irrigation, landscaping, parking facilities, play and recreation equipment, bathrooms and other structures; and . Final completion items and remaining soft costs. There shall be no payment from bond proceeds for costs of real property upon which Improvements are constructed, except as follows. Payment for real property upon which the Facilities are constructed that is in public ownership is acceptable based on the actual cash payment to the public owner but in no case in an amount greater than the fair market value. 2 7 ADDral.... An appraisal of the property subject to any lien required to secure any public financing shall be required. A minimum property value to lien/debt ratio of 4:1 (including any overlapping assessment of Community facilities districts) must be present pursuant to Premise 3 entitled -Bulk Land value- as set forth in Attachment A as determined by an M.A.\. appraisal. The appraisal shall be reviewed by the City and shall be prepared as set forth in Attachment A hereto. Absoratlon Studv. Unless waived by the City, an absorption study of the proposed development project shall be required for CFD financings. The absorption study shall be used as a basis for verification thatsufflcient revenues can be produced to fully and timely satisfy debt service requirements and costs of services and to determine if the financing of the public facilities and services Is appropriate given the timing of the development. Additionally the projected absorption rates will be provided to the appraiser for use in the appraisal required in the Appraisal section hereof. Rate and ADaortlonment of S.da. Tax. With regard to CFD's, the proposed rate and method of apportionment of the special tax shall comply with the following criteria: a. The rate and method of apportionment shall not provide for an annually increasing maximum special tax for any classification. However, subject to City approval in its sole discretion, under appropriate circumstances, as determined by the City, an increase In the maximum special tax may be permitted, not to exceed two percent (2%) annually. b. The total projected annual special tax revenues must exceed the projected annual gross debt service on the bonds by at \east ten percent (10%). In structuring the special tax, projected annual interest eamlngs on bond reserves funds shall not be included as revenue for the purpose of this calculation. c. In limited cases, as determined by the City In its so\edlscretion, a special tax for services may be permitted and the annual special tax may increase to reflect projected Increases in costs to provide the applicable services in an amount to be determined by the City, in Its sole discretion. d. The projected annual special tax revenues shall Include amounts projected to be sufficient to pay reasonable annual administrative expenses and other direct COSts to the CFD. e. All property not otherwise statutorily exempted or owned (or to be owned) by a PUblic entity shall bear Its appropriate share of the special tax liability. f. The special tax shall be apportioned on a reasonable basis to categories and classes of property within the CFD subject to the special tax. g. A formula to prepay the special tax may be permitted. h. The projected ad valorem property tax and other direct and overlapping debt for the proposed development project charges, projected benefit assessments, levies for ,-. 3 8 authorized but unissued debt and any other anticipated municipal charges {including estimated LLMD (Lighting & Landscaping Maintenance Districts)) which may be included on property owners annual tax bill), including the proposed maximum special tax, may not exceed one and one-half percent (1.5%) of the anticipated Assessor's full cash value of each improved parcel upon completion of the bond financed improvements and the reasonably anticipated private improvements. i. A backup special tax or other security device to protect against changes in densities resulting in insufficient annual special tax revenues to pay annual debt service and administrative expenses may be required at the sole discretion of the City. Credit Structure of Bond Issue.. Each bond issue shall be structured to adequately protect bondholders and to not negatively impact the bonding capacity or credit rating of the City through a combination of credit enhancements, foreclosure covenants, and special reserve funds. Specifically: a. A credit enhancement will be required whenever one entity or related entities are responsible for twenty percent (20%) or more of the debt service obligation of the proposed debt issue. The required credit enhancement shall take the form of, and shall be provided as set forth in Attachment B, hereto. b. A foreclosure covenant will be required and shall be included In any applicable bond indenture or fiscal agent agreement. In addition, within the fiscal year Immediately following the first full year of delinquency, foreclosure action shall commence against delinquent parcels as specified in the foreclosure covenant made to the bond owners. c. The City will require that capitalized interest on the initial series of bonds be funded from the proceeds of the bonds. Capitalized interest shall not exceed twenty-four (24) months, and shall be for a shorter period if (i) further restricted by stature or (ii) determined by the City, in its sole discretion. Interest earnings may, at the City's discretion be applied to extend the initial term of capitalized interest but in no event beyond the term statutorily authorized. The inclusion of capitalized interest in subsequent series of bonds will be at the City's discretion and will only be permitted if a direct benefit inures to the ultimate property owners. d. A reserve fund equal to the lesser of: (1) ten percent (1 0%) of the original principal amount of the bonds, (2) maximum annual debt service, or (3) one hundred twenty five percent (125%) of average annual debt service (the AReserve Requlremenf) shall be funded from the proceeds of each series of bonds. A reserve fund surety bond or letter of credit, provided by a municipal bond insurer, a major banking institution or other equivalent source, may be substituted, at the City's sole discretion. Level Debt Service Reaulrement. Bond issues will be structured with approximately level debt service. To the extent that bonds are issued in series, individual series of bonds may have uneven debt service if the intent is to create level debt service at suCh time as all series of bonds are issued and to minimize the potential of fluctuating annual special taxes. 4 q '''- Maximum Term of Bonds. If a single series of bonds is contemplated, the term of the bonds shall not exceed thirty (30) years. If multiple series of bond issue are contemplated, in no instance should an individual residential parcel be encumbered for debt service beyond a thirty- fIVe (35) year period. Disclosure. Disclosure of the ~pecial tax lien shall be in compliance with applicable statutory authority. The City, in its sole judgment, may require additional property owner notification if it deems such disclosure will assist subsequent property owners to be made aware of the lien obligation. In addition, applicants for CFD financlngs and all major landowners will be required to cooperate prior to and subsequent to all bond sales with initial and continuing disclosure to bondholders and the financial markets. Applicants and landowners will coope~te in the preparation, verification and dissemination of the identity of landowners, development project plans, timetables and statistics, and financial pro-forma information, and any other Information the City and Its financing team deem appropriate. Formation: PaYment of Initial Faes and Costs by ADDllcant. No Proposal to initiate the formation of a CFD financing will be considered valid without the payment of a fee to compensate the City for all costs incurred to perfOrm Its analysis of the proposal and to pay for the costs of conducting the proceedings. Applicants for public financing projects shall submit proposals to the City Manager. The City will review the proposal within one hundred (100) days after it is deemed complete and make its determination whether or not to formally consider the proposed district. The applicant(s) shall deposit a minimum $10,000 estimated fee amount with the City Manager at the time the proposal is submitted. The minimum fee will be increased to an amount determined by the City in Its sole discretion to be appropriate given the size and scope of the proposed project or financing. The estimated fee amount shall be in the form of cash or other negotiable Instrument. Failure to submit any requested increase in the deposit will result in a sospenslon of the processing of the financing. Indeoendent Review bv the City. The City will perform an independent review of the proPOsed public financing and may take recommendations to the City Council regarding the financial risk, impact of the City's bonding capacity, economic feasibility and related Issues. The applicant(s) shall be required to provide current and two prior years financial statements, preferably aUCflted, of the entity responsible for the development and initial payment of special taxes and other material to assist the City or its agent in its fiscal review. City to Select Professionals. The City shall select the bond counsel, underwriter, financial advisor, appraiser, absorption consultarlt, special tax consultant and other professionals and consultants It deems appropriate. c coo_ration by CItY DeDartments. All appropriate City departments will cooperate In conducting the necessary reviews and proceedings. 5 10 '.- Um/Iof! Secvrllo( for ...... All_menta and matartals related 10 tho aa/a of CFD banda shaD arnphasjz" and alate that nellhar the faiIh, CIlIdiI nor tho laxing _ of the City Of San Ilernarnino Is p/edged 10 tho I8paYJllBnl of tho bonds, nor is thore an obJigauon of tho City 10 repIen/sh Iho Rl8arve fund from revenue SOUrtes other than Sjlecial ~ or PIOceeds of foreclosure proceedings. CIIv 10 Acaulnt Canon....., FlICIllIIes. It is tho daslre of the City that ft Incur no liability for tho dasIgn, el1!lileedng end maintenance of the publjc IIIIpmveIYl8nls 10 be financed lIwough bond PIOc:eeds. ft is tho Pl'8ference of the City 10 usa tho "llcqu;sjuon dlslricr l!pproaefllo pay for CFO financed ~ 'nfrestructu.e, Under Which bond Pi'Oceeds will be reI_ only Upon comPletion of 1ha financed irnpmvement or aPPmved components thoreof and aCC8plance by the 8Illlty which Is 10 -tho Improvemanl All conlracls for public l"'PIoVements 10 be _, 0Jlerated or maintained by tho City shaD be consislent with the requirements set forth In Attachment C, hereto. CItv'. U~ of FInoncIaJ COIIIuJl8nt. The City may, at Its sole discretion, employ a final1Ciel COlISU/lant to assist the City during Its Iiscaf reviaw P8riod (noted in tho Independent Review by City eecllon heI8Of) and aN COSIs for consulting services will be borne by tho appIlcant(s) .. P/lWlded In tho Payment of Initial F_ and Coats by Applicant _ hereof. ~nt of Bond p-. The financing docurnenIs .wiD PRlVide that bond """"'ado wiD be used and disbul88d at times and In tho manner as SIl8<:Ifled In the reaoIutions forming the CFD and oIhor SUCh agreements entered into with tho City with respect thoreto. Reoort In EYIIIIl of Default. For O<llslending bond Issues, ell City <lepartn,enq and lIlJ8ncIes with edmlnlslrative I'8Sponslbllllias will notify tho City CoUncil and file a written report of the c1lCU1l1sfances D an event of default Under tho financing documents has OCCUrred. Refun~na of CFD Ilonds. All pro- refunding or refinancing Issues will be submitted 10 Iho CIty for review With COInp/eIe disclosure of tho beneIits and COSIs of tho P/llp(lS<l(j rellnencing. A prelimlnery and final oIIiciel sfafetnent or disclosure sfafetnent for any bond bonds to be refunded shaN be flied with tho CIty Manager, CIty I\ltorney and tho CIty Council. RIa'" 10 ModJfy or Waive PolIcies. The City has tho right to _ or modify eny of tho JlOIIcieo Included herein D, In tho Clly's judgrnent, benefit Inures 10 the ultimata property owners. the Cfo and/or to the City. ?~- Olhtr """"""'- The CIty _10 assume the ownership, 0Jl8I8li0n end maintenance of the CO"'Pleled pubUc i__ acquired or construcIed with Sl>ecielllfstrtct bond -.. PIOVfded that 1) SUCh /rnproyementa meet aU reqUirements for pubUc I~ _, 0_ and maintained by the City including but not limited 10 construction 10 CIty stenderds ..........' 6 11 '- "- ,,...... '"-",,, as determined by the city engineer; 2) funding for the maintenance of the improvements will be provided solely by private property owners through a combination of Assessment Districts, Special Districts, or contracts. City General Fund revenues shall not be used to fund the maintenance of any public improvements constructed with Special District bond proceeds. The City agrees to cooperate in a joint community facilities agreement with the San Bernardino City Unified School District ("School District") to finance school facilities, if applicable. A1tematively, if the School District is the lead agency in the formation of a Special District for the Project. the City agrees to cooperate In securing a joint community facilities agreement with the School District in order that City required public improvements are acquired or constructed by such ' Special District and turned over to ownership by the City. 7 12 '- ATTACHMENT A CRITERIA FOR APPRAISALS A. Definition of Appraisal. An appraisal Is a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information. B. Standards of Appraisal. The format and level of documentation for an appraisal depend on the complexity of the appraisal problem. A detailed appraisal shall be prepared for complex appraisal problems. A detailed appraisal shall reflect nationally recognized appraisal standards, including, to the extent appropriate, the uniform Appraisal Standards for Federal Land Acquisition, as well as appraisal standards promulgated by the Callfomia Debt and Investment Advisory CommiSsion, and shall specifically identify any departure from such standa",s. An appraisal must contain sufficient documentation, including valuation data and the appraiser's analysis of the data, to support the appraiser's opinion of value. At a minimum, the appraisal shall contain the following items; 1. The purpose and/or function of the appraisal; a definition of the estate being appraised, and a statement of the assumption and limiting conditions affecting the appraisal. 2. An adequate description of the physical characteristics of the property being appraised; location, zoning, present use, end analysis of the highest and best Use. 3. All relevant and reliable approaches to value consistent with section D below, as well as commonly accepted professional appraisal practices and the standards of the California Debt and Investment Advisory Commission. If a discounted cash flow analysis Is used, it should be supported with at least one other valuation method such as a market approach using sales that are at the same stage of land development. If more than one approach is utilized, there shall be an analysis and reconciliation of approaches to value that are sufficient to support the appraiser's opinion of value. 4. A description of comparable sales, including a description of all relevant physical, legal and economic factors such as parties to the transaction, source and method of financing, and verification by a party involved in the transaction. 5. A statement of the value of the real property. .r'~' '-' 8 13 ,~~ 6. The effective data of valuation date of appraisal, signature and certification of the appraiser. C. Conflict of Interest. No appraiser or review appraiser shall have any interest direct or indirect In the real property being appraised for the City that would In any way conflict with the preparation or review of the appraisal. Compensation for making the appraisal shall not be based on the amount of the valuation. D. Community Facilities District Appraisal Premises. The valuation of proposed special tax districts should be based on three premises: 1. Raw Land Value (Premise #1). The total land within the project shall be valued aas Is.. a. Without proposed Infrastructure being financed or any future private improvements. b. With existing parcel configuration and existing land use entitlements. c. Considering planned densities allowed by the specific plan or other project approvals then in effect. This is a typical type of land valuation 2. Project Buildout value (Premise #2). The total land within the project Is valued under projected conditions. a. With proposed infrastructure being financed completed. b. At the planned densities allowed by the specific plan or other approvals then in effect. c. Land development is at the stage of being marketed to merchant builders or tentative tract maps ready to be filed. This is a projected value based on project plans predicated on market conditions continuing as project. 3. Bulk Land Value (Premise #3). The total land within the project is valued under projected conditions: a. With proposed infrastructure being financed completed. b. With existing parcel configuration. c. Considering planned densities allowed by the specific plan or other project approvals then in effect. .-..;A~ This premise should consider a discounted or "quick sale" valuation considering time, costs and the possibility of a per unit value based on the total size of the project. .,- 9 14 ((~ '- ATTACHMENT B POUCY ON CREDIT ENHANCEMENT If property within the proposed boundaries of a CFD, owned by one entity or related entities, their successors and assigns, is responsible for twenty percent (20%) or more of the debt service obligation of the proposed debt issue, an irrevocable credit facility having the folloWing terms Will be required: A. The credit facility Will name the bond trustee or fiscal agent as beneficiary. B. The face amount of the credit facility Will be equal to three (3) times the amount of the annual debt service obligation for which the property so owned is responsible. C. The credit facility will have a term of at least one year and by subject to annual renewal or call prior to expiration. D. The credit facility may be drawn upon should there be a default by the property owner in the timely payment of the special tax obligation for the subject property. E. The credit facility must be issued by a financial institution acceptable to the City that is rated .AA or better by Standard and Poor's Corporation, Moody's Investors Service or Fitch Investors Service, Inc. F. The face amount of the credit facility may be drawn should the credit facility not be timely renewed or a substitute credit facility acceptable to the City not be timely provided, or if the rating or the capitalization of the provider falls to a level not acceptable to the City in its sole discretion. G. The face amount of the credit facility will be subject to periodic adjustments should the property owner sell or transfer portions of the property to unrelated third parties. For purposes of this Policy, parties will be considered to be related should they be so deemed by the Internal Revenue Code of 1986, as amended (the .CodeA), and the regulations promulgated thereunder. However, the City does reserve the right to apply a stricter standard than that provided by the Code in determining parties that are related. The City may, in its sole discretion, require additional credit enhancements for a particularCFDnfinancing if it is determined that they are needed to bring the credit worthiness of the proPGsed debt issue up to a level that is acceptable to the City in its sole discretion. 10 15 ,,-. '- ATTACHMENT C CONSTRUCTION CONTRACTS FOR COMMUNITY FACILITIES DISTRICTS WITH MELLO- ROOS DISTRICTS With regard to the construction of public facilities that are to be financed from the proceeds of bonds sold pursuant to the Act, the following policies are to be applied: A.The appropriate CIty department will be specified as the CFD's representative to administer the construction of each of the facilities to be owned and maintained by the City . B. Unless otherwise agreed by the City, the facilities to be owned and maintained by the City are to be acquired by the CFD. C. Consistent with this policy, the City finds, pursuant to Section 53329.5(c) of the Act; that it will not serve the public interest to allow the property owner(s) to' elect to preform the construction' of the facilities after the publication of the notice of the award of the contract and declaration to this effect is to be included in each resolution of intention submitted to the City Council pursuant to Section 53321 of the Act. D. The entity that constructs the improvements must comply with all applicable prevailing wage and bidding requirements, and so certify such compliance to the City prior to the use of bond proceeds to pay costs of any improvement constructed by an entity other than the City. ~ ",-, 11 16 \....- EXHIBIT "e" TABLE OF PROCESSING FEES '-, WCH\30610.0001\40S311.3 1212312011 17 Planning Division Community Development Department 300 North -0" Street, <Jd Floor, San Bernardino, CA 92418-001 Phone: (tot) 384-5057 Fax: (909) 38+5080 Webs\te: www.sbcItv~ PLANNING DMSION SCHEDULE OF FEES Fees EtfectIve: January 1, 2009 "" Cd<," TI (11I1OI"Cj\ ^f( 11fV" 1 YIl( ,j i\ppllldtIOJ) f ,.,. f l " f'l ToLd Amendment to CondItIons: - Director review (D'1) $583 $11.66 $8.00 $602.66 - D/ERC review (DP2) $822 $16.44 $8.00 $846.44 - Planning Comm. Review (CUP/DP3/SUB) $2,550 $51 $8.00 $2,609.00 Antenna Development Permit (DPl) $2,938 $58.76 11.25 $3,008.01 ,.,"" _ Appelll to Mayor. Common Coundl $1n $3.54 $2.00 - Non-8pplk:ent, City resident $182.54 $1,766 $35.32 $2.00 $1,803.32 - All others Appelll to Pl8nning Commission - Non-appllc:Bnt, City resident $278 $5.56 $2.00 $285.56 - All others $2,n2 $55.44 $2.00 $2,829.44 Conditiolllll Use Permit - Afcohol outlet in existing building $3,858 $n.16 $12.00 $3,947.16 - Commercial 'Industrial (nan-.....dantlal) $7,133 $142.66 $12.00 $7,287.66 - Residential (COndo, HMOD, Guest House) $2,809 $56.18 $12.00 $2,8n.18 - Revision $2,113 $42.26 $12.00 $2,167.26 Design Review Full Consultant Cost * Development Agreement or Agreement Direct Cost +2% * Amendment Recovery Fee Development Code Amendment $7,449 plus Full $148.98 * Consultant Cost Development Pemlt - 1Ype 1 (DPl-Dlrector review) $1,070 $21.40 $11.25 $1,102.65 - Type:2 (DP:2- Dev. Review Committee) $6,890 $137.80 $12.00 $7,039.80 - Type 3 (Planning COmmission) $7,191 $143.82 $12.00 :?34.82 , - Tvae 3 (Moor .nd COmmon Counclll ~7.288 $145.76 $12.00 7 +15.76 /*~ 1 18 . G,l',,, 1 ('(hno\nl]y Ar(hlve TYIJt: of i\ppllCdtlOll F ('(' f \ \ 1,'(' Totdl DOCUment Cop'- Varies - see page 4 Environ-tal Study (lnltllll Study prepared $3,273 $65.46 nla $3,338.46 by stIIff for MHO with MM,RP) Envlronmentallmped: Report Direct COst Recovery Fee plus Full Consultant COst Extension ofn- _ CUP . Development Permit 2/3 $3,922 $78.44 $11.25 $4,011.69 - TentatiVe Tl'lct Maps $4,768 $95.36 $11.25 $4,874.61 Fence/Wan Permit $56 $1.12 1.50 $58.62 Fire Fees _ CUP. DeveIop.nt Permit 2/3 $413.45 nla nla $413.45 _ Subdivlllons, Tentative Tracts, Parcel $361.85 $361.85 Maps, and Lot Une Adjustments (CA Dept of) Fish. Game Fees (Ma. chec:k .-Y*e 1D"aerk flI....1oInI flI SupervisiH's1 . Envlronmentlllmpac:t Report $2,768.25 + $50 Admin. Fee $2,818.25 _ Negative Decleratlon (with or without $1,993.00 + $50 Admin. Fee $2,043.00 MMRP) $50 $50.00 - Notice of ExemDtlon General Plan Amendment (text or map) Direct Cost Recovery Fee ($1500 Deposit) Historic preservation Report Direct Cost Recovery Fee ($815 deposit plus Consultant Cost) Home Ocx:upatlon Permit $268 $5.36 $2.00 $275.36 Letter of Zoning. Gen. Plan Consistency $450 $9.00 $2.00 $461.00 Lot Line Adjustment $477 $9.54 $8.00 $494.54 Minor Exception - Concurrent with another application $288 $5.76 $4.50 $298.26 _ OWner-occupied single-family residence $268 $5.36 $4.50 $277 .86 - Other $792 $15.84 $4.50 $812.34 Misc. Environmental Report Review Direct Cost Recovery Fee ($245 deposit) plus Full Consultant Cost ($327 deposit) Minor Modlflclltion/Revlslon $561 $11.22 $4.50 $576.72 phasing PIa" Review - If not part rI original project review $823 $16.46 $12.00 $851.46 - Dev. Review Committee application $514 $10.28 $12.00 $536.28 (DP2) $536 $10.72 $12.00 $558.72 - Plannlna Comm. aDDllcatlon 2 19 ">.."_:,,,_,,o,,;","~,~___"~~c".,,,,""'" . r,(\'~~" T..( hl1o\of)Y td ( 111 V . . TYPl' of AppllldtlOll 1\'" fl' I. . TuLd (CUP/DP3/SUB) Planning eomm...n Interpretation $1,119 $22.38 nfa 1141.38 Public Convenience or Necessity Le\ter $636 $12.72 5.50 $654.22 (PCN) Pre-Appllaltion RevieW - ORe RevieW $2,424 $48.48 $6.00 $2,478.48 (If en ~ .. tIIId wIIIIln 10'" oft:he review, $1,500 wII be cndbd IaW8rd thIIt applatlon.) Reconsideration by the Planning Comm. $506 10.12 nfa $516.12 Sign Permit $182 $3.64 $5.50 $191.14 _ Requiring Conditional Use Permit ~3,858 $n.16 $5.50 $3,~.66 - Temporary $111 $2.22 $5.50 $118.72 Sign Program $610 $12.20 $5.50 $627.70 SpedficPlanor~cPlanAm~mem Direct Cost Recovery Fee plus Full Consultant Cost TemporalY Use Permit - DlrectDr Review $450 $9.00 $4.75 $463.75 .... Planning Commission Review $782 $15.64 $4.75 $802.39 ".. Tentative Parcel Map $4,262 + 2% of $8.00 Varies plus $65 per parcel calculated base fee Tentative Tract NIp (far Single-Family $7,561 + 2% cI $8.00 Varies ResIdent"", Condo'" or P.LD.) plus $65 per Iot/dwlg calculated unit base fee TentatiVe Map Revision - Tract/Parcel Map $2,113 $42.26 $8.00 $2,163.26 Tree Removal Permit $506 $10.12 $4.25 $520.37 Variance $2,724 $54.48 $4.75 $2,783.23 - With another application $910 $18.20 $4.75 $932.95 - Single Family ResIdence $322 $6.44 $4.75 $333.19 . Vesting Tentative Maps Direct Cost Recovery Fee plus Full Consultant Cost ~m~~~-~~mmti~~mmq $22 $.44 $2.00 $24.44 only Zoning Verification RevIew (for Business $37 $.74 $2.00 $39.74 RegIIdIwtIon ee.tlnc:ate) * Archive fees are $1.00 plus $2.00 per plan sheet plus $.25 per document Total archive fee will vary base on the total number of case file documents. 3 __20 Qrsd: CftCt R.FnWrv Fee The Direct Cost Recovery Fee shalllndude all Oty labor and material costs, both direct and Indirect, InclUding overhead charged against the specific Item being dIscusSed. The applicant shall pay a deposit for the Direct Cost RecoVery Fee at the time of filing the application. full OIM11ltant Cost The Full Consultant Cost shall Include all costs incurred by the CIty under contract with a consultant. The applicant shall pay a deposit for the full consultant costs at the time r:J filing the application. DenMlt R8Cluired The applicant shall pay an Initial deposit of $1,500 (or the deposit listed in the fee schedule) at the time of filing an application on which there Is a Direct Cost Recovery Fee. The applicant shall pay an initial deposit of $1,500 (or the deposit rlSted In the fee schedule) at the time of fillng an application on which there is a FUll Consultant Cost Fee. When 75% of a depoSit has been expended, and the Planning Division determines that the estimated remaining costs of the job will exceed the amount deposited, an additional deposit of such excess shall be required. Notification of the additional deposit required will be mailed to the applicant, who shall deposit such monies prior to the date specified In the notice. When an additional deposit has been requested, work will be suspended on the project when 95% of the deposit previously receiVed has been expended. Projects will not be completed with monev due. If an additional deDOSIt is not made bv t:h@ date ~~ ';:: ""':': 5ho~ be ~ wItI1drawn lIP the date ~ ~ anv ~ action 9n of n nardlno and without refund of anv moneY deDOSited for ~ Derfnrmed. Such project may be reinstated only If additional deposit Is made within 30 days from the date that the project was deemed withdrawn. If a project involves multiple applications, the full amount of fees for each type of application shall be paid. Refunds will be made by the aty of any fee that was erroneously paid or collected, for any unused deposit monies of Direct Cost Recovery Fee or Full Consultant Cost Fee after all changes for the project have been determined, or as cletennined by the Director. ,Fees are automatlcaOy lldjustecl annually on January 1st of each year, based on the latest available Consumer PrIce Index Increase from the prior year. Fees adopted per Resolution No. 89-471 (11/22/89), Resolution No. 91.148 (4/18192), Resolution No. 2003-211 (B/4/03), and ResolutiOn No. 200~32S (9/S/06). Fire Department fees authorized by Resolution No. 1999.173 (7/13/99) and Resolution No. 2006-325 (9/S/06). Technology Fee of 2.0% Is authorized by Resolution No. 2008-149 (OS/07/08). FEES FOR DOCUMENTS . MAPS Account # 001-()()()-4710 Documents The General Plan, Development Code, and other documents are available on the Clty's web page: ~.sbclty.ora. select Departments and Development Services and Planning. Maps Maps are available in the General Plan located on the City's web page: www.sbdtv.ora. select DepBrtments and Community Development and Planning. copying Photocopies ..............................................................................354 first page, plus 154 each additional page 4 21 Engineering Division oeve/Dpment $eIVIt:eS DepBrtmen~ 300 North "'0" street, 3rd Roar, San Bernardino, CA 92418-001 Phone: (909) 384-5111 Fax: (909) 38+5115 Webslte: www.mtv.org ENGINEERING DIVISION SCHEDULE OF FEES Fees Effective: July 18, 2009 E j',' ll,')u \t1( I T, ( \\11'11"'1'1 ,I( (hi J 1'1' l' Id {<PI'I\f ,1\ 1()ll ' ' [ ' f , t I P I 1 'd,d "h.,.'t) Basic PirrilIt Fees: _ Engl....rlng Permit $45.00 $.90 $1.00 $46.90 - .lanket Permit $53.00 $1.06 $1.00 $55.06 _ Permit Extension $43.00 $.86 $1.00 $44.86 ~rmanent Encroachment Permit $625.00 $45.00 $12.50 $1.00 $683.50 r-temporary Encroachment Permit: $1.00 - No LBne Closure $25.00 $45.00 $1.40 $74.80 - With Lane Closure (First Day) $136.00 $45.00 $3.62 $1.00 $185.62 - Each Additionll Day $60.00 * $1.20 * $61.20 Combo Lane Closure WIth excavation $286.00 $53.00 $6.78 $1.00 $346.78 Special Events Enaoachment Permit: $1.00 - With A Lane Closure $500.00 $45.00 $10.90 $556.90 - With A Street aosure $514.00 $45.00 $11.18 $1.00 $571.18 - Road aosure (flm Day) $302.00 $45.00 $6.94 $1.00 $354.94 - Road Closure (Elch Additional $302.00 * * * $302.00 Day) Ove..... Lold Permit/Building Move - One Day Permit (State Fee) $17.00 * $.34 $1.00 $18.34 - Annual Permit (State Fee) $95.00 * $1.90 $1.00 $97.90 Hauling Permit: - First Day $393.00 $45.00 $7.86 $1.00 $401.86 - Each Additional Day $100.00 * $2.00 * $102.00 Excavation Permit (Per Day) $150.00 $45.00 $3.90 $1.00 $199.90 ~, .1 22 ,l..M.l.Ul,l! r.' .. "fIUIl""! ,.T_~_;~'" >"'"'H1l""",~~'-""~"_"~"'''''_'''''''''" .', .- .__...,."....."'-,,.,..~".-,-..""...,'~'..,",,"-....-.', .....i!O'jI~. g~ ...... .' -,-...,...,,, ...." . B 1'-, ] <.,<.,1I 'IH , Tl'( hrlllloqy 1\11\11'." f j p" n f j, il pili d t I () 11 I f, , I ' , I" U" ' l()Ld '-,11<'" t J TnfIIc Study Report $.25 - ... Fee $719.00 * $14.38 $733.63 Extended Review (Per Hour) $80.00 * $1.60 * $81.60 - . Fina' Map or Parcel Map Review: _...Fee $2,210.00 * $44.20 $2.00 $2,256.20 - Per Lot Fee $55.00 * +2% - Each AddltiOnII Review $135.00 * $2.70 * $137.70 - Final Map COntinuance $404.00 * $8.08 * $412.08 _ eertlftCBteof Correction (Per $97.00 * $1.94 $2.00 $100.94 Hour) Off-Site Improvement Plan Check Fee/ Based on construction Cost 4% * +2% $2.00 Estimate Minimum $50.00 Charge On-Site Improvement Phln Check Fee/Based on COnstruction Cost 2% * +2% $2.00 Estimate ",L..Gradlng Plan Check Fees: - SO or Less Cubic Vards (CY) No Fee * * * * \""1"'" - 51- 100 Cubic Vards (CY) $15.00 * $ .30 $2.00 $17.30 - 101-1,000 CUbic Yards (CY) $22.50 * $ .45 $2.00 $24.95 - 1,001-10,000 CUbic Yards (CY) $30.00 * $.60 $2.00 $32.60 - 10,001-100,000 Cubic Yards $30.00/$15.00 * +2% $2.00 (CY) additional 10,000 C( +2% $2.00 - 100,001- 200,000 Cubic Vards $165.00/$9.00 * (CY) additional 10,000 +2% $2.00 C( - 200,001 Cubic Yards (CY) and up $255.00/$4.50 * additional 10,000 C( Four or More Plan Checks $85.00 * +2% $1.00 Review Revisions to Approved Plans $137.00 * $2.74 $2.00 $141.74 Review Fee: - CertIfIcates of Compliance $828.00 * $16.56 $ .25 $844.81 - Lot Merger $828.00 * $16.56 $.25 $848.81 - Lot Un. Adjustment - Single * Family/owner Occupied $414.00 * $8.28 $ .25 $422.53 - Lot Une AcUustm-- commercial/Industrial $828.00 * $16.56 $ .25 $844.81 \..-. 2 ?~ ,..".".+~,.j<.'i""'",,"';""."' .."",_~._~"",...,.,~.."~...,;~<."....~...;,~-..>___~.... .t.. -'. ..~.t.~.I. 1..' U ._ >. _., L.t.r:.... "" . Rc1"f' 1 ~',1I d 11 (f' T,'chn'JII)q l Ar( 1i\./. 1 iP" or r,ppll( "tll)11 f . F. . r,. I. f.. \ p. I T 01.1! ~l Off.$1t:iI Constru I n Fee/Based on Construction Cost 4% * +2% * Estimate On-5ite Construction InspectIon Fee/Based on Construction Cost 3% +2% * Estimate Grading Inspection Fees: * - 50 or Less CUbic Yards (eY) No Fee * * * 51-100 CUbic Vards (ev) $150.00 * $3.00 * $153.00 - 101-1,000 Cubic Vards (ev) $225.00 * $4.50 * $229.00 1,001-10,000 CUbic Yards (eY) $300.00 * $6.00 * $606.00 - - 10,001- 100,000 Cubic Yards $300.00/$100.00 * +2% * (eY) additional 10,000 tv - 100,001- 200,000 Cubic Yards $300.00/$100.00 (eY) additional 10,000 * +2% * tv - 200,001 CUbic Vards (eY) and up $300.00/$100.00 additional 10,000 tv * +2% * -. anat Permit Inspection (Per $73.00 * $1.46 * $74.46 Location) Re-Inspectlon $59.00 * $1.18 * $60.18 Bond Release Inspection $59.00 * $1.18 $1.00 $61.18 After Hours and Holiday Construction Inspection: - 4 Hour Minimum $369.00 * $7.38 * $376.38 - Each Additional Hour $92.45 * $1.85 * $93.30 Review of Storm water Pollution Prevention Plans (SWPPP): - COmmercial and Residential $410.00 * $8.20 $.25 $418.45 Projects - Industrial and Linear $265.00 * $5.30 $.25 $270.55 (ClP/Utllity) Projects Review of Water QUality Management Plans (WQMP): - Non- Categorical $80.00 * $1.60 $ .25 $81.85 _ CategorIcal without Conditions of $365.00 * $7.30 $ .25 $372.55 Concern _ Categorical with Conditions of $1,130.00 * $22.60 $ .25 $1,152.85 Concern '\c _ Four or more Reviews (Per Hourl $99.00 * $1.98 $ .25 $101.23 ctIon nspectIo 3 ?1I ,...".,.,~"_-,~ ~,,*,~;(;_;n.,,_lIJ',, I, _, ~ RevIew of ErosIon/Waste Management $75.00 * $1.50 $.25 $76.75 Control Plan National PoIlutllnt DIscharge Elimination System (NPDES) ConstrUCtIon InspeCtion: $98.00 * $1.96 * $99.96 ..... Than 10 acres $179.00 * $3.58 * $182.58 - 10 Aaes or More National Pollutant Discharge Elimination System (NPDES) Business $143.00 * $2.86 $1.00 $145.86 on: Hydraulic/Hydrology Study: * $9.74 $.25 _ Three Hour Minimum $487.00 $496.99 - Four or Mon Hours $100.00 * $2.00 $.25 $102.45 Temporary Certificate of Occupancy $520.00 * $10.40 $1.00 $530.25 Engineering . Letter $100.00 * $2.00 $.25 $102.25 i. net Name Change -- _ Plus the Cost of the Sign $1,345.00 * $26.90 $ .25 $1,372.15 sewer Capacity Analysis: - Minimum Fee $280.00 * $5.60 $ .25 $285.85 - Extended Review (Per Hour) $80.00 * $1.60 $ .25 $81.85 street Light Electrical Energy Fee . 70W 5,800L Type A $420.00 Each * $8.40 $428.40 . 100w .,SOOL Type B $472.80 Each * $9.52 $482.26 . 1 SOW l&,GOOL Type C $720.00 Each * $14.40 $734.40 - 200W 22,OOOL Type D $912.00 Each * $18.24 $930.24 Billing Fee $59.00 * $1.18 $ .25 $60.43 street or Alley Vacation - Deposit $1,000.00 * $20.00 $ .25 $1,020.25 - Balance Due Prior to processing $1,000.00 * $20.00 $ .25 $1,020.25 Dedication of RIght-of-Way (Each): - If Legal and Mlp an ProvIded $315.00 * $6.30 $ .25 $321.55 - If City Prepares Legal and Map $800.00 * $16.00 $ .25 $816.25 Private Party Annexation Request $14,750.00 * $295.00 $.25 $15,045.25 """,City Property Lease processing $2,100.00 * $42.00 $ .25 $2142.25 4 ?i:i _"'~~i'<","*"""''""'^'''"''''-'''.,t'>'v.'. ~. '. .J,..', '""'-~' r . \" ,", l<,',u , H' T. (\1I\()\1\'IY ^I (\1I'J" I 'fP , ell AI,pll' .1111)11 I , '" i.' I," P'I 101,1\ ~,=l't) Community facility District Verclemont Area Only $7,010.78/Lot $140.22 $.25 $7,151.25 - ResIdential in LIeu Fee $386.43/Lot $7.73 $.25 $394.40 - RUldentlallflnCFD 200912010 $48,975.34/Acre $979.51 $.25 $49,954.46 - Jndustrlal/Commerdal in Lieu $2,699.48/Aae $53.98 $.25 $2,753.72 i Fee $6,018.251 - industrial/Commercial if in CFD $5,900 $118.00 $.25 2001/2010 i - CFD F~tIon Fee Assessment DIstrIct $5,900 $118.00 $.25 $6,018.25 outside CIty sewer ServIce Permit $1,300.00 $45.00 $26 $1.00 $1,327 ... Archive fees are $1.00per permit, $2.00 per plan sheet and $.25 per document. Total archive fee will vary base on the total number of case file doaJments. . FEES FOR DOCUMENTS. MAPS Account # 001-Q00-4710 Documents i~e General Plan, Development Code, and other doaJments are available on the Oty's web page: ~.sbcltv.orQ, select Departmentsand Development ServiceS and Planning, Maps Maps are available in the General Plan located on the CIty's web page: y.rww.sbc:itv.ora, select Departments and Development SerVIres and Planning. Copying Photocopies ............................................................................354 first page, plus 154 each additional page #:~l""i_~ '",-" 5 ?i=: .- '-" ,/""'" ~ ,'-" '-' WCH\30610.000I\4OS311.3 1212312011 EXHIBIT "D" TABLE OF IMP ACT FEES .,,_--... '!II- tn!!, . ':,.)iioJ' r-' '.'~ '.~~'!! If'....""""-.I "~'.t ,....~""i.~.,-.,'....,.,.~""","'.,""A..""'''''_,Hl>,.,,.''''''''''">-'''"'","-~,,,..-.-, ')'7 r'" "-' r' '-" .1"'" '--- EXHIBIT D UNIVERSITY HILLS IMPACT FEE SCHEDULE Fees to be paid by the initial 504 Units: . local Circulation System Fee . Regional Circulation System Fee . Sewer Connection Fee . Storm Drain Fee . Sewer Capacity Fee . Sewer Inspection Fee . Water Acquisition Fee . Water Administration Fee . School Fee . Parkland and Open Space Fee Fees specifically excluded for the initial 504 Units . Law Enforcement Fee . Fire Suppression Fee . library Facilities Fee . Aquatic Facilities Fee . Public Meeting Facilities Fee Detached $232.94 $2,435.00 $419.72 per bedroom, both $3,925.91 $3,500.00 $29.18 $4,740.00 $180.00 $5.19 per SF for both $9,517.86 $639.07 $792.09 $637.89 $326.11 $1,089.54 Current Fee Categories, to be paid by all units after the initial 504 Units. . local Circulation System Fee . Regional Circulation System Fee . Sewer Connection Fee . Storm Drain Fee . Sewer Capacity Fee . Sewer Inspection Fee . Water Acquisition Fee . Water Administration Fee . School Fee . Law Enforcement Fee . Fire Suppression Fee . library Facilities Fee . Aquatic Facilities Fee . Public Meeting Facilities Fee . Parkland and Open Space Fee $232.94 $2,435.00 $419.72 per bedroom, both $3,925.91 $3,500.00 $29.18 $4,740.00 $180.00 $5.19 per SF for both $639.07 $792.09 $637.89 $326.11 $1,089.54 $9,517.86 March 28, 2012 Update Attached $155.28 $1,626.00 $1,620.67 $3,500.00 $29.18 $2,370.00 $180.00 $7,533.45 $566.22 $977.13 $505.30 $258.00 $861.84 $155.28 $1,626.00 $1,620.67 $3,500.00 $29.18 $2,370.00 $180.00 $566.22 $977.13 $505.30 $258.00 $861.84 $7,533.45 NOTE: Fees set by the State, regional governing board, School District Board, Board of Water Commissioners (or body other than the Mayor and Common Council) are subject to change at their discretion and not impacted by terms of this agreement. , """"""'''''''''''~'''-''~","".~ t. ,,~J "'l!-- V'" ",""",_~',""'" r. \-.. EXHIBIT "E" MITIGATION MONITORING AND REPORTING PROGRAM .~ \.,., ,.-. '-' wCH\30610.0001\4OS311.3 1212312011 ?Q . ..-.----- "'-' ""., ~ ImpIIct Report UIIIveIWftY'" ~ PI... M~ MonlfOrfnl ami RepoItfn8 Plan 5.1 Introduction The following plan will help assW'e that the mitigation measures contained in the Draft EIR. and as modified in this Final EIR.. are properly implemented according to state law. This Mitigation Monitoring and Reporting Plan (MMRP) identifies measures incorporated into the project that reduce its potential environmental impacts, the entities responsible for implementation and monitoring of mitigation measures, and the appropriate timing for implementation of mitigation measures. As described in Section 15097 of the State CEQA Guidelines, this MMRP employs both reporting on and monitoring of project mitigation measures. The objectives of the MMRP are to: . Assign responsibilitv for. and ensure proper implementation of, mitigation measures; . ASS1~ responsibility for, and provide for monitoml~ _..:. ._y_..: :..,,. r(,""':,l;.'l"("~ ,. ,:'1 mitigation measures; and . Provide the mechanism to identify areas of non-compliance and the need for enforcement action before irreversible environmental damage occurs. Mitigation monitoring and reporting procedures incorporated into the project are presented in the following Section (Section 5.2). Specific mitigation measures incorporated into the project, mitigation timing, and implementation and reporting/monitoring responsibilities are presented in Table 5-1. 5.2 Mitigation Measures and Reporting As the Lead Agency, the City of San Bernardino is responsible for ensuring full compliance with the mitigation measures adopted for the Proposed Project. The City will monitor and report on all mitigation activities. If, during the course of project implementation. any of the mitigation measures identified cannot be successfully implemented. the City shall immediately inform any affected responsible agencies. The City, in conjunction with any affected responsible agencies, will then detennine if modification of the project is required, and/or whether alternative mitigation is appropriate. Table 5-1 presents the implementation plans for the proposed mitigation measures for the University Hills Specific Plan. r~ ..~ Michael 8I'aIHIrHn A~ S:\IClioal\Z5" .... c..-rilieo\llOOll \JJoiy Hills ElR.If!IIl-MMRP .... findinp\fElll\fElll.MM1U' _UHSPI~21.os rJiot VOI1ion.duc .if ~~ r- c f. I. I I I II II c: . iL aa c: ~ o Do ~ ~ c: . aa c: 'C :@ g :IE c: o :p . I <0- J>> :I l! \ I -{ -l \ I \ I~ i It) i .____...__...._..___----------.--1.----.------4 I i ! I I c: I I ,S!. I I 13 t} i 2e',;: \ I ~!i 'el \ \ a: 8 i .. \ e i \ \ g:a =c!~ I "6 'fi -l.g 1.lil ; ~88'8 I I I r---------.--. i i l~ \~ It) I I = I 'is! 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Ill. alE!! ... ~~~~~ zzzzz 51 ;e 8 liue C!. .....r-:.IIl~ ,~tt!l!! .............. '#-#### coooo ggggg ............. - ####. ............,... ~....=..=..: NNNC'\I ~.~ ~ ~ ~ Is II g~8g ..... III Iii ~ i .5 ., 1 il it ~ ~u r t- ~t ~ll. ~ II! l'i.!~. '!iE! :. ~ ~ ~ E! ~ ~ ~~ ~ ~ e hU! iliiU litH I ~ <<= II ~ f- = !I! II l!!,!I II:! I I lilll ,nnl inll i ~ ! ~ ID Jl! .Q {!. !:;Ll r- ,"-- Ie 'e ~t ..5l 11 I- II It j.~ IL !. ILl! . ea~B e!i R Ii ! ~III 1:1-'- II :IE I,! i ~III ~Iijl ... .to :. II IL z..1: i i i1j.. cl:IE 31.8~ ~ iI, IL IL - 3,.81 .. .II .J u'lls ~fl ' IL IL C ~ ~l ' i5 i5 0 be 11-'; ~ lli e i 0 i - Z zlLJl I II Ii ~ .. ~ - .. ~ ~ u u ! B f ~ i ~ f :: .. I! :l I- U ;:) t l~ iI . en II) .E jJ; " ~ 8 it~ DD Ei Ii Ii I iO" iSS: c!:i5 ~'ill: .. ... ~ 'Ol- QZ c2 '15.E ,;.E 1 .E 0 .8 i~ 12 " ~ i 1 .>C. ! lllllllUI ..z lZ II 00 l< C C) A n ~~ ClctC!."':. ,II: ,~ D ~ ~ i .-_Ift... ILl- ILl- = t!- ::: .a~1 -; -e ~ U ... 0.. d8 ~. it: ! .2 ~ J :::lln ILl ~I 018 Nio.. :I!:I! j .. A 1111;; ~ ."'!. :& I::; Ulc Ule e J! ~ j el~ ~~.. ~g~= i=t i=t II .... C ;:) I ... tit.. ... !Of ~I ~ IL 0 ~ Ii. .8 D:e I J~ ~'O ~'15 II ~~ iCi 3& ::)e g a. -'B ~ i 11..1: villi ci.. ~I ~, .2 ."Vl .. .. !a !Q~ ~ C 00 ~~l I- tit 1 0 1;; 88 hl i 8 do ......1 Ule ~~ .... a- a- o' uu f! 11:1 1 Q . W ILl/) :;:I i C 0 :;:I ~ II P 0 I ~ . i I C I! IL i ! ! Iii ~ t- ~~ Z~I!! i J .~ ~~ I ~ E 1 10 i~~ IJlj 1 II IL .lP j e:. :a :I'D: i1ml II: I .. rDIII I t- ZUl IL cll ~ill I i . eclS ~ iBu 1 u8 ~ III .. ::! ::! z 2 ",-, ~ .. ! ~ l.....- I!: r=r= /'- "- EXHIBIT "F' 5 YEAR PERFORMANCE REQUIREMENT ,...- "'- WCH\30610.0001\40S311.3 1212312011 l:C Exhibit F 5 Year Performance Requirement Prior to the fifth anniversary of the effective date of the development agreement the owner/Developer shall: Acquire the necessary rights (easements, licenses, rights of way, encroachment permits, etc) to construct the Phase 1 Infrastructure, including roads, intersections, drainage facilities, slopes, fuel medication areas, water storage tank and water lines. Complete a full submittal of completed construction plans, which will include the civil engineering and landscape architecture, for a phase of single family homes consisting of at least 25 lots, with an associated park. Complete a full submittal of completed construction plans for the Phase 1 Infrastructure as follows: ",,--, Phase 1 Infrastructure consists of: . Campus Porkway from Northpark Boulevard to the project site, and through the project eastward along the Primary Local road, then along the Community Local I road to Little Mountain Road, southerly and westerly to the CSUSB campus, then southerly to the intersection of Northpark Drive. This consists of new construction, reconstruction of intersections and the acquisition of right of way or easement rights. . 2 Water storage tanks, one of 1 .5 million gallons, one of 1 million gallons, along with an 1880 pressure zone pump station and a 1720 pressure zone pump station, as well as associated lines to interconnect the system. . The backbone drainage system as shown on exhibit 3-28 of the specific plan, excluding drainage systems for Planning Area 15. . The backbone sewer system as shown on exhibit 3-29, excluding the system to serve planning area 15, as well as the system to service to planning areas 16,17,18,19, and 20. .4lI"'~- "'-' 1::'7 ,,-.. ''''"-'' EXHIBIT "G" FACILITIES MAINTENANCE PLAN "-'" WCH\30610.0001\4053t 1.312/2312011 l:i~ r- \.-. ~h 2:1'4 ~~tJ us~ ~I~ i~~ h U = =-J! ~ rIJ ~. u _ t: ~ · 1 ~iJ ! s ~ 11 ; a lillilii!!I~ I I 81 ~ ~i,~tl~titltJI~ll!il !:IiI 1~ll11111!!lill!i)~! IlIic . . tf\ ~.n \O~.so\ cS... " ffi~ ..eN ......e .... .... .... .-- "'-" -- - .:' ~;}i:~~ ~ .. . '. . -, ". , ~. ~ \.~,.i.' ." ". 'Ilo. ., . .. ,< ".~ . , . .: ~: 1::0 ~h 112 a~1 i~le ~ B. ~ :: Q . .~ '-" ~ .I fll i i i~ t J j.s:~ lil151! III J ! !~liti ~tlcl~! 11111 1;1 ' - m:(j ,'6 12" It! J~ I Ill: I.. 1111111 1;b~ .~I(" r' l~ I Do i if '~~lll"t~~ I 'Ie 11,1 i~ t ~ II 1~[8!a 5 t ! 1 . i ! U- -I ~l) i Ur"'11 I 1 1111t 11Iillllilill!\tll i ,iU,sii1 ~lt!Ji.i 11 II! ili~)1 11;it -, IJl12;1;~ I"U8! i' 11 ~lljl111~t 51111 Ili1;~jt II ~1 I i~ I. ~I 11 I: ~ I J I I I 1 i .II to- ~ I u ... . IO....... .. ... _l:13 ~! Ii ~~ ~i ~~ ~E Q r- \...- -c . I) I t I 1. rll i ~ . !li~ 1 I Ie 111 Jir .B u ~Il I ~ J ~III i '!" 11 ..,J el t! Ig'S . .J!1 :-e.8!ti l...j1 i I) 11 ... li'..e !ll . Iii") III IIJ 1 I! ~1 Sf. flil 1 III! i II 1:,2 ~j .1Itil II It inl]. li. s ~~ I Ifll '6 en. I . ci tl!~ I~ e.:1 II) ~ &! ~ . n 1l51~ .I .6 l!!r I IU~ . i 1111 11 151 -I 11 S! I I_II II i1 I) 112 !! I ail it -m I~ 'aD::: i'i ! 11 i~ mf ,1 Ii'! a! ~ Ie r'" .Ii · Iii : .~M~ 0, jl ,,! I~ i~ ~inl 18 J) i i II !IioX Ii ~'c '~ I! I.~ -I.I . ~ I' =~I 11 II It nUi dUl ~J 111 ~l ~I' 1.8_ i . I :S fI) I "8 I -I I ~ J 0 I % - .0 1 . .e e S il ~ I ~ , ~ I~ . cl II ~ I II ~ ( i l- I . . 0 ... ... .. .. .. ... ~ .. .. : -----fi1-- Il 1 "li f'H _ -U - _ _ :..r"'~"^""'>< It rr. I "--'''.......~~ ".....-'_,W_l""",.;_~_../.._.'" . "'.._._"..-..-.-.-"-'....-'"..~"',.,...""'~~.""~~'<",.,-,.,.,.; ~ ! ..~I ct'..cs _.- IV/. ... E! is: .~ f~"l " 'Cc ~ ti: :::d~ i l ' I ! ' !! ' . :I 111 := II a ' ~ ~ I . := a a ~ f ' .. I, nna a a a a ~ ; a ~ a a a :tHd' 3 ~ ~ ~ ~ ~ 2 ; a . a . ~ . ):l ::! :.I ;; :! , :s , :s ~ ~ ;l ~ , i , :l :nl ::l:l:l:;i ~ i 51 ~ ; ~ I c I c c i c ; Ii! c L1i1itt I b Iii II IE ~ .. . . . . ... . . . =. = :I S := . II S . . II II iii I I I i!un '. , ~ a r~ ~!, ~:s ~ ~ l~ilili ~:sni III Ii hl,l If~h' If 11 11'1.1I11{1 "i I :;: J tll}" l S . \1'I.U1,1 J !. i ,lf1111 i ~ 1111. J..f f i.l tn)illl~fl Illdl!' hu "lldftlhJJ) 111It'.11f1fIJ ~ n, , .. I lEi = ~ . -'~-~" '-' FI? #'~........ "- '-=-, Table 3-3 _.....8litstandards.. Oetached.R8IkI.......u... ---~- ----- -- - - -- ~~- ---~-~ -~- Densl' AWrIIge~ '. '2.8OUltic . f.70U1ic . ". 11.9'~ .' 9.1~1'5JiOUtacln 'PAS&13 '9.1...17.tJ!lU/-=1n , ""0.1..&31 Oer!8itY:J&'lge .M1Dl1/ac ...3~~0DU1l1i: Builel "g Site SpCGlilC1:IOnS . L4iPilrNrrttqt.... unit ~lot_ t..2 ~1Qt~ ~=&kltMdUl Sl(~~ S. 'Il 'c-"" Jln St':et ROW ' , , ~_~~3 10ft ..,4ft '5ft 2ft 3ft 1ft IntpllG Sick SctiJJck" TO:~~' T~~lJlQgein rear1/3()f1ot ~~a o <<rUt Oft 'Oft 2ft o or3ft Off Oft 1 ft, Oor3 ft Oft Oft 1ft RCJI Set! ,1ch . ~:.."~~).4.5 l$ft 10~ 8ft >5ft .' ............. ......> .Sft ...... ........ .... ... 5ft 01t.~ .Il,~~~S{24-f!)ot~~ I.,ll:~r-=- "otOft ;. 0 ft ~ft 3ft 2ft Tc)aIley-e1"Itryll!riJe . fofnlr!t~_ln~1J3d.tot ~;..t1IibaCk3;5 Height ,~~..." , . . ":15ft}c .' '. "'<,.35ft' , "40ft . Othel Tandemp8ddng9 Bulding S8l*Bflon 7 . .Ttiirdceriil .... .ftA..............III. 2511L permitted~ ~ nllII-of '''''.'1&0. ~.' Pannitl8fjin 25% tandem wn.. of units 10ft 6ft 6ft ',---, . University Hills Specific Plan h~ Page 3-5 ~ I ~ ....--...." T_~ ,1ltv,"opment$tlndarda~'_~htclRttaiMotIa.l UIea ~ ' , ~-----~---- ----~-- -~-~------ Dell~l: I i ~ AV!ll'8ge48nSlY bell.... "!", !1lfI98 1UOOlac . 9.1....15.0 Pll/acili PA5&13 9.1"-17.0DOlac in PA1().14,& . 20 16.8 DUlac 15.1-20.0OU/ac Buildl'lCJ S 'C SP'cc flc ,tlll/lS ' 'SI1!diO ~~sf ~~""7.ooSf . '2~~$OO'Sf 388drOoln'-.1j10Ihf .MirWtNlII~lInOJMl!1'~4.5 '. ..1$OlSf~lInlt MIl. ~ OJl8!lspace per unit 4~~perUnlt. . . .' . ,.' ,,' ,......,.. Minin1iJm~C)f6ftin8nydi~. Ttiil'ldemparlcing ~tn30% ohmilsPemitledin 30% of units ft = reet sf =sqUIinl f8el DUlac = dIlleIingunllspll' ecre ~.,........., . ... M S8lbacb thlIIIbelllllSllld hIiIl1e badtafl1eCDIIlDb -,,1Iltess1lllllld 0lIIinMe.. I 'PIlijidIiIn8 ..lIdIIIIcbiI.....~==rlhi......fllCe.PI\iec:lianS indudefltllUnls_.--. bIy ~~fGl\ihili.iIIlIllI\el' ..... ," .. ....~lIIiiIncilll1r:n!ldlwltlln3itClflhipl:llplrtylne. 2Billdgi!lPiJinllc!nla~_..'8lllIlllat"iif.ItidIie"..edilatWilaf.iIlDIilr'" SlriIclIn. The ~iIiIJ'llill:iDIcIi~........1lIIltIIIi\llIi1)~~~.lIilIliMt4ll.2) ciMred ~""SliillPHt;3)~.~lt. .'. .' "'. ..... . 3-'l!UIdInghelghtlsdelinildlli1he1\iWC JIiin tithed...... " till _ C1f118 fOlIf plIIIk.lI1ic:hMrls........ Nt ~~I!!l;IlIS.~atllcil;~__IxcilI!id,,"'bijIdIng"bJ10feet. 4 See "CJIIIII~pnMsIonsill"'~"" C)perl__~jiI_~13flt.....dilIiiI""deIIliIIon. 5 The ~~8IIInlllCl.puIic pm{Jl18rilD "1, 17,19. and 21) c:iluntlllllll'ds lie IIqIIhd ClIIlIlIllI1 apen spIOlIl1IqUhmenL , Development Standards for Other Uses Development standards for structures withintheOubh()USe,.Public Park, Open Space, Utilitie$, and Internal Slope la1\d use caregories are provided in TableJ.:5. '~/ r-' \-, University Hi1ls Specific Plan 64 Page 3-7 >''''',~~~~~tj,~''_."...,..,-,~.''''" ~ I r-l "-- .~...------.,. . r--' '-' Development Criteria Table ~ Het9ht.Qf~H' ' .... " Setback ofstrilClllretom j)n)p8rty IirteS 40'1( "20ft. ,15ft "35ft" 20120 ft 20 ft 10 ft Page 3-8 Fll:i NA NA June 2008 ~ I r-;l ATTACHMENT 3 AGREEMENTCONCE~G DEVELOPMENT OF UNIVERSITY BILLS BY AND BETWEEN TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY SAN BERNARDINO THE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO AND FONTANA CORNERS 111, L.P. Dated: June _,2010 r""""". '-' ~~ ~'-_""""""",..,..",;.",,-,,,;<\l'~~..,...~,;~,,,,-,;~,-,,.,", '- TABLE OF CONTENTS RECITALS ...... ............................ ......... ................ .............................. .............. ............... .............. 1 1. Stnnm8l'Y of Proposed UmveISity Hills Project.. ................. .......... ..................... .................... 4 2. Project/Campus bnprovements .................... ............................. ... .................... ... ..... ...... ... ...... 6 2.1. Development of Points of Access to Project Area.......................................................... 6 2.2. Signalized Stteet Intersections .......................................... ......... .... ...... ...... ..................... 7 2.3. Slopes and/or Retaining Walls Regarding the Points of Access..................................... 7 2.4. Easements for Public Rights of Way at Points of Access and Extensions. .................... 8 2.5. Construction of Points of Access.................................................................................... 8 2.6. Map of Utilities and StubooOuts for CSUSB .................................................................... 9 2.7. Right of Way Easement from San Bernardino County Flood Control Agency.............. 9 3. Master Declaration; Master Association....... ............... ...... ....... ......... ................ ...... .......... ..... 9 4. Project Approval ................................................ .......... ................. ......................... ............... 1 0 5. Mutual Support of Project and Faeulty/StaffHousing ......................................................... 10 6. Disapproval or Substantive Modifications of Amendments ................................................. 10 7. 1he Parties Duties Upon Project Approval........................................................................... 11 8. Not Transferable ........... .............................. ................... ...... ...... ..... ......... '" .......................... 11 9. Assignment ..... ............................ ......... ................................ ......... ................................... ..... 11 10. Notices ........ .............. ......... ............................. ........... ...... ......... ..... .............. .... ................. 12 II. Automatic F.xpiration.................. ..... .......................... ..... .......... .............. .......................... 13 12. Covenant of Good Faith and Fair Dealing........................................................................ 13 LIST OF EXHIBITS EXHIBIT 'A' Aerial View ofCSUSB Campus, Fontana 111 Property, and surrounding Land Uses with Notation of Approximate Location of Certain Project Improvements EXHIBIT 'B' UHSP Conceptual Development Plan EXHIBIT 'C' T-intersection at the extension of Little Mountain and North Park EXHIBIT 'D' Grading easement over Little Badger Mountain EXHIBIT 'E' Grading easement and Location ofRctaining Wall at the intersection of Campus Parkway and North Park EXHIBIT 'F' Faculty/StaffHousing Parcel including entrance into the Parcel EXHIBIT '0' 2 University stub-out access points into Campus Parkway extension EXHIBIT 'H' Location of the Trails access from the University on the main project trails along Campus Parkway . i Q:I~1lIll C~laooOll3 (!leY Apol.)\l'iMJ A.,-CenconrinaDowlopllodI- OU(6-14.1010) 01 (6-17.20101..... \....,.. fi7 . >~"''';~'',"..'..,''''.;...~'''_'h~JfW.~~''''~+~_,.:...,.'.~.....> AGREEMENT CONCERNING DEVELOPMENT OF UNIVERSITY IDLLS This AGREEMENT CONCERNING DEVELOPMENT OF UNIVERSITY HILLS ("University Hills Agreement") is made as of this _ day of June 2010 ("Effective Date..) by and between the TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY SAN BERNARDINO (''Trustees''), nIB FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ("Foundation"), and FONTANA coRNERS 111, L.P., ("Fontana 111 j, a limited partnersbip organized and existing under the laws of the State of California. RECITALS "~r A. Fontana 111 is the developer of certain real property ("Fontana 111 Property") located adjacent and north of property owned by Trustees and utilized for Trustees' California State University San Bernardino's ("CSUSB") main university campus ("CSUSB Campus"). Both the Fontana 111 Property and the CSUSB Campus are located in the City of San Bernardino ("City"), County of San Bernardino ("County"), California. The Fontana 111 Property and the CSUSB Campus are depicted in Exhibit "A" for general reference. Note that Exhibit "A" also identifies the general location of other improvements, referenced in additional Exhibits to this Agreement. B. The Fontana 111 Property was previously known as "Paradise Hills," and is the subject of the City adopted Paradise Hills Specific Plan SP 90-03, General Plan Amendment 91- 07, Development Agreement 90"()3, and a certified Environmental Impact Report (collectively, tbe "Paradise Hills Specific Plan"). The Fontana 111 Property as approved for development pursuant to the Paradise Hills Specific Plan SP 90-03 consists of approximately 404 (the "Paradise Hills Project Area'') acres and is subject 10 a series of approvals by the City in 1993, 1 Q=-\I..............~IOO.Q03IDow Apc.)\FiMl "- CaIanliaJIler........- csu (6-''''2010)OII~IMOI0).d0c n~ "~'",>,,,,~,,,,,~"_,,,,__,_~,,,~'~','d"";_'-"" """,,,,;,.'-~'''''''''-''''''~'lolIi'.II1IlJ:.~l.nlP!l.'JH "',.I""...'.'...Io<i_......."""".-'...... ~~ .~ including without limitation the Paradise Hills Development Agreement No. 91-03 approved on March 19, 1993. C. The Paradise Hills Specific Plan SP 90-03, as adopted, provided for 504 single family residential dwelling units to be located on approximately 229 acres of the Fontana 111 Property, with the balance of 175 acres representing what was defined in that Specific Plan as open space. Of the 504 single family residential units approved under that Specific Plan, that Plan provided for 121 Estate sized lots (minimum 10,000 square feet or mo~) which were designated for an area of the Fontana 111 Property now proposed under the University Hills Specific Plan (see Paragraph D) to be a portion of an area designated to be donated for public benefit. ',""'....;P' D. Fontana 111 has made application to the City to amend certain of the previously approved Paradise Hills docmnents, including the Paradise Hills Specific Plan, to change the scale, scope and density of the permitted development, including the project area. The proposed amendments to the Entitlements of the Paradise Hills Specific Plan to fonn the University Hills Specific Plan involve consolida1ing the residential development of 980 dwellings on to approximately 184 acres of land located on the southerly portion of the Fontana 111 Property (the ''University Hills Specific Plan Area''), which would leave remaining approximately 220 acres of land generally north of the southern branch of the San Andreas Fault line ("Education and Research Parcelj, also shown in Exhibit "A". These proposed revisions to the Paradise Imls Project are consistent with Fontana Ill's desires to accomplish those planning features descnDed in Section 1 and elsewhere in this Agreement, and are also consistent with recent preferences communicated by the City. This revised project shall be known as the "University Hills Project." Exluoit "B" depicts the Conceptual Development Plan for the University Hills Project E. CSUSB has identified to Fontana 111 a need for additional faculty and staff residcntiall10using ("Faculty/Staff Housing"), and Fontana 111 recognizes the potential public 2 Q~C__ioll\Il- co.. ApII.)\FinoI ~C4ncontinaDo"",-, haCSU (6-I4-2GIO) III ("I~IOI.da< 69 1- '- benefit of assisting CSUSB in that regard by providing an area ("Faculty/Staff Housing Parcel") within the University Hills Project for housing of faculty, staff and affiliated persons, and by making certain improvements to the Faculty/Staff Housing Parcel which will assist and facilitate CSUSB in its future development and construction of Faculty/Staff Housing. The tenn "affiliated persons" means and refers to persons who are affiliated in some official capacity with CSUSB operations, and not to the general public. Of the 980 dwellings on 184 acres. it is proposed that a Faculty/StaffHousing Parcel be set aside, being a maximum offoUT (4) acres in size and being zoned for not more than sixty (60) dwellings pursuant to the University Hills Specific Plan proposed to be adopted by the City, and used as "housing for the CSUSB faculty. staff and affiliated persons lUltil the end of build out of the multi-family portion of the University Hills development, or thirty (3C) years from the date of this Agreement. whichever is SOOner. CSUSB's use of the land must conform to existing zoning regulations. The Faculty/Staff Housing Parcel is depicted in Exhibit "B" as "'PA-16."and with further detail in Exhibit "F." F. Fontana 111 bas identified certain areas within the CSUSB Campus which. if developed in conjlUlction with development of the University Hills Project. could benefit both Fontana 111 and CSUSB. These are identified herein as "Points of Access," road "Extensions," and "Signalized Intersections." G. Trustees, the Foundation and Fontana 111 desire to enter into this Agreement to document and memorialize their agreements with regard to: (i) the proposed joint use of certain improvements, either now existing or to be constructed in the future, on both the CSUSB Campus and the University Hills Project Area; (Ii) the development of the University Hills Project; (ill) the development within the University Hills Project of the proposed FacuhylStatr Housing Parcel; (iv) the development of the Education and Research Parcel, supported by adjacent infrastructure for Public benefit; and (v) the overall cooperation between Trustees, the Foundation and Fontana Ill, and among Trustees, the Foundation, Fontana 111 and the City. 3 Q~ eo.-",_lao.GO) (Ow ApLlII'uI,o\__ Ca_...~ ..... au (6-14.2010) III (6-I140ID).lIoc 7~ ", ".~..--""","'",,.........,,'"0 ~)~ .. - "I I <!'<j_..-__",r-j J>-RIIO!'''ll:~ ~r.~4'. .,' -,IN-, '_,' ~..,,- -","~-~""""",_..,,-~,--_.,.,~.,,">..< Based on the foregoing Recitals, and in consideration of the mutual covenants ()f the parties, the Parties hereby agree: 1. Summary of Prooosed University Hills Project. In order to put in perspective the proposed revisions to the Paradise Hills Specific Plan which will, if approved, result in the University Hills Project, the following are feature highlights of the University Hills Project. -~ 1.1. Project Area to be reduced from approximately 404 acres with limited open space to approximately 184 acres, resulting in substantially increased undeveloped land of appro~y 220 acres. This will result in the elimination of 121 estate sized lots (minimum 10,000 square feet) which were approved under the previous Paradise Hills Specific Plan, substituting a portion of the Fontana 111 Property to become an Education and Research Parcel under the proposed University Hills Specific Plan. Final acreage will, of course, depend on final engineering in connection with the final approval of the University Hills Specific Plan. This expanded area creating an Education and Research Parcel will be made available for donation to the Trustees for the benefit of that public agency and the Public for uses, consistent with deed restrictions. The expanded Educa~on and Research Parcel will include features of the San Andreas Fault, thus presenting a unique opportunity for "in the field" research a short distance from the adjacent CSUSB Campus_ The Education and Research Parcel will also provide wildlife, geologic and geographic research and study opportunities. Additionally, it will offer to the Public the opportunity to engage in the close observation of wildlife and other enviromnental features in the Education and Research Parcel on the currently existing public tIails, and will offer opportunities for the CSUSB Campus and other Public agencies to conduct study groups" science classes and other educational activities. 1.2. As proposed, the University Hills Project Area (reduced acreage from the Paradise Hills Project Area) will employ a higher density cluster housing concept for dwelling units, resulting in economically feasible living accommodations consistent with current market needs in the City. The University Hills Specific Plan concept will also provide a mix of housing 4 Q:~CommuaIIl""I_ (Door ^"*' )\F11lII ~ eo-;.eDMlapllul &om au (601"-21110) DI (6-17-211111)..... "~ I, ~ '71 ~.mJ"1-..).~i___..~""'-" .. --"""",,,_,,,_,~",,,,,,,~"""".,;.llI#:-,,,,~,,,.,,.~,._- , ,~, products and styles that will offer a range of housing choices intended to satisfy a variety of life stages and incomes more in line with young professor and faculty-staff needs. It will contnbute to building a sense of community and place as a result of creating distinct pedestrian friendly neighborhoods and providing the necessary physical infrastructure conducive to a vibrant social community. The Development Plans in the University Hills Specific Plan are consistent with the University District Specific Plan, dated November 2005, and will promote design guidelines with the CSUSB Campus character ("Design Guidelines''). 1.3. The University Hills Specific Plan will propose setting aside a developed area -the FacultylStaffHousing Parcel- to be donated by separate agreement to The Foundation for California State University San Bernardino ("Foundation") for construction by the Foundation of new Faculty/StaffHousmg to meet the expanding CSUSB Campus needs, making the Campus more conducive to attracting teaching and research personnel. '- 1.4. The University Hills Specific Plan will result in an improvement of current vehicular access points for better traffic circulation and enhanced emergency access by various tire and other emergency agencies to the CSUSB Campus, the University Hills Project Area and the Education and Research Parcel. The proposed traffic circulation elements and access points will integrate the CSUSB Master Plan access points and bike path and trail connectivity. They will also provide for an enhanced future safety for the CSUSB Campus by the implementation of Hillside Fire Protection Standards and the use of trails at the development edges to act as fuel modification or fire protection zones. When donated to the Trustees, the Education and Research Parcel, enhanced by the proposed improvements within the University Hills Specific Plan area, will enhance the synergy with CSUSB by allowing for learning opportunities for various departments and by promoting interdisciplinary CSUSB Campus programs. Finally, the improved traffic circulation, together with the installation by Fontana 111 of additional utility services and hookup adjacent to the CSUSB Campus, will result in greatly enhancing the ability oftbe CSUSB Campus to grow to meet the expanding needs and goals of that campus. 5 Q:\IllCMIAI........ C-......la\Iloo.4OJ (llov Ajpt.}II'iNl AIr_enl CGnoootIi..~"'" au (6-1_1001 (6.\7-2010).'" ,.,...... ~ 7? ",~__",,,,~_",,,_"".~'C-"-"~' >....."'..~.,,"'....,_....~.._..'llo,.: l.. .~ ~f . .,' .~ _J .... ~~''*'~, """"",~~ '-, 1.5. All provisions in this University Hills Agreement regarding size, quantity, location and functionality are based on the design of, and the information in, the Fontana 111 proposals for modifications to the Paradise Hills Specific Plan which will become the University Hills Specific Plan. If governmental approvals result in substantial modifications to the University Hills Specific Plan as proposed by Fontana Ill, it should be expected that those modifications will have an impact on related assurances herein. 2. ProlectlCamuus lm'DIOvements. In connection with the proposed University Hills Specific Plan, certain improvements have been identified which. if approved and developed, will benefit both the University Hills Project and the CSUSB Campus. These improvements are referred to sometimes herein collectively as the "Project/Campus Improvements." Some of the ProjectlCampus Improvements have been earlier identified in this University Hills Agreement, including the proposed Education and Research Parcel and the proposed Faculty/Staff Housing Site. Other Project/Campus Improvements will include the "points of access" (more particularly identified below), certain signalized street intersections, and improved and extended streets, slopes and retaining walls, the latter group of which will significantly improve traffic circulation. The following subsections identify the Project/Campus Improvements in more detail. 2.1. Develomnent of Points of Access to Project Area. Fon1aDa 111 and CSUSB acknowledge that there are two points of street and utility access to the Project Area: the first point of access involves the extension of Campus Parkway along the northeasterly property line of the CSUSB Campus, and the ~cond point of access involves the extension of Little MoWItain Drive north of Northpark Boulevard across the southeasterly comer of the CSUSB Campus. These two points of access are referred to herein as the 'Jpoints of Access" and are intended to be designed and constructed as to right of way only, and. in the same scope as the current Campus Parkway and Little Mountain Drive rights of way. Exhibit "E" depicts the right of way and slope easement at the interseCtion of Campus Parkway Extension and Not:thpark Boulevard and the Campus Parkway Extension. Exhibit "C" depicts the oT -interseCtion of Uttle 6 Q:\wdlIInIaIllNJdud c:oc....-I_) (Dw A.....l\Fl... .....- eo.-a... n-JoplMIn ... CSU ("'4-1010) 01 (6-1740IO).dDI: ",t1~~. ,,-. 73 "- Mountain Drive, East Campus Circle, and Little Mountain Drive Extension. Exhibit "D" depicts the Grading and Slope Easement over Badger Hill at Little Mountain Drive and the Little Mountain Drive Extension. ~""..._," 2.2. Si2D8lized Street Intersections. Fontana 111 and CSUSB acknowledge that in developing the Points of Access, the signalization of the following two street intersections will need to be constructed, including traffic signalization, for purposes of proper vehiCular movement and traffic safety: (1) the intersection of Campus Parkway and Northpark Boulevard; and (2) the intersection of the northerly extension of Little MOlmtain Drive to East Campus and the UniveISity Hills access road (collectively, the "Signalized Intersections" and individually, a "Signalized Intersection"). As confinned by a letter dated May 29, 2008, written by City Manager Fred Wilson to Dr. AI Karnig, President of CSUSB, the City bas placed both of the Signalized Intersections on the City's Capital Improvement Program ("'ClPj, and those traffic signals will be installed and operational in a sequence and manner as determined by the City. The location, design and construction of such improvements, and any acquired grading easement and retaining wall, as well as the loca.tio~ design and construction of the other areas requiring grading easements and, potentially, retaining walls, are all as depicted in Exhibits "D," OlE:' "0" and "H" hereto, and in the proposed University Hills Specific Plan, as might be modified by the Approved University Hills Specific Plan. .,-. 2.3. SIOJ)es and/or Retaining Walls Re~llrding the Points of Access. Fontana 111 and CSUSB acknowledge that in developing the Points of Access, certain slopes and/or retaining walls win need to be constructed at Fontana 111 's sole cost, and that such slopes and/or retaining walls will have some impact to property adjacent to CSUSB Campus property. It is the understanding of the Parties that the fence shown on Exhibit "E" adjoining the Facilities ylU'd is on the CSUSB property line. Fontana 111 agrees that the road improvements, as shown in Exhibit "E". will not go beyond or encroach on that property line and if it is later determined that the fence requires movement to the property line, Fontana 111 will be permitted to move it to the property line at its expense. Fontana 111 further agrees that all drainage win be designed so that 7 Q:\..aIInIa1lll\llllUllCcllnmullilitl\ll0Q.GClJ ("""pIl)lFi"'~" c.......... o-lapnonl- au (6-14.1010).' (6-I'l-2lII.'.doc .,.-.. '--' '7)1 "-"~"",.- 1111 nmnlT will he directed onto the exisling t.k\'dop~d hlCililics yard (If the CSUSB campus. The slope and retaining walllocatiof!s ,m: derided generally in Exhihit "F' and ill the proposed University Hills SpecIfic F'lan where details uf the !ocati\lilS and design:; arc set flllth. The final locations ami designs will he as set fortb in tht' Approved t'ni\'crsity lIills Specific Plan and approved final engineering plans as agreed to hy tIlt' pani!.:;.;. .:: . ,1. !;;?sqnKntSi.k1tl!l!.\li l.... gllii l~, _QLWllLill.1'9_imJLDJ-,~'!.f_I,;C~;S- illl(J. Elilc!.!?i91.~'., The Pwtie, acknowledge Ihat, as rdcrc.ncc([ !1uein and in Ih(> proposed Lniversity lIills Spt\cilk Plan.. tlll' ('oints of Access and related road ,-,,,tensions might l'!.:4uire, in connectioll with l"mal engilleering, the dedicatillll Ill' \!'aSt.:1l1,~111s In the ('il)' ai'll! th" City's uceepH!Il(:(,; thereof. Those ea.'il'ment dedication~ lIIight bl;:' facilitaled as pari or any tinal ~'ubdivision map being recorded 'I'llI' all 0.1' it pI),tiol1 of tlk' Pn1ject, bIll migh, alsn be faciU.Hied hy ~eparate dedication agreemem~. with the City. The l':trlies acknowledge that their (0operation with each otht:l a.ud the City concerning these east.mcnls fm lights of way wili be critical to the success of the Project and mllst be timely accomplished in order to ~;Llpp()J1 Ihe Project schedule. Those Points of Access, !dopt~ arl:a~" n:liiillillg areas and stre,-~l e.xtenSJon~ a!.t: gem~l'ally identified in Exhihit " A" and more specifically identified in F.xbihih "C''', "1)" "e" and "(;" 2.S. L:{)nsrn!~:H9l!~",~!.f...!.~Qints of /\~.~~!;g'. -l'he locat.ions of the Points of Ac.<.~css will he eSlahlished during the Project appn:l\'ai process, pmsuanl to Fontana] 1 j's engineering. A ftCI' the Projecl A pprovai, and in accordance with the {em):> of suc.h Project Approvai, Fontana 111 shall be solely in charge (llnle~s allY one or more of them i$ constructed by the City) of lllodificaliilTl to the I()('ations, engineering Hnd L'onslnl(;li~?,n of the Points of Access.. at it.s sole 'r"'!. F oIAnda.-hc' "J cost. wiu) the only e....ceplil.lll bt~iHg. Iht: p<!Ylllt'lIl by f~:~~;CSD (If its hlil' share of lraffic or mher ;P{~~:f- impaet fi.:cs to lhe Cily in connection with ihe ranllty!Slaff Housing Parcel. (me;,: COllSlnJclt:d. hmt.alla i J 1 shall be released from fllrti1l'J "CSIH .nsibilily ,lilt! liability levarding the Poillt~; or j\cces:.,. 8 (1"_:-: ',I.-,:slI'I'JI;!..Ii:.: "lh"-/':.'" ,0;:,:" H~:' ,'"..1 ! ~.,,-_ .~..:" .! ",'i .'.-;i-'.~ -1;: 1I.:.~,' .; ,,',~ ": f!'" . r.~",: .' "" .i i:.. ';-::';,:')d.;-- '- 71:; 2.6. Map of Utilities and Stub-outs for CSUSB. Fontana 111 shall provide CSUSB, for its review and immediate (not longer than ten [10] days) approval, with a map identifying the location of all utility systems located within or adjacent to the Points of Access. During coostroction of the Point of Access involving the extension of Campus Parkway along the northeasterly property line of the CSUSB Campus, Fontana 111 shall provide, at no cost 10 CSUSB, available utility stub-out connections from Campus Parkway and curb-cuts for future street intersections with Campus Parkway, at two (2) locations along Campus Parkway to be identified by CSUSB, as conceptually depicted in Exhibit "G." ,,-. 2.7. Rimt of Wav Easement from San Bernardino County Flood Control Agencv. As depicted in Exhibit "D", the University Hills Specific Plan includes a proposed right-of-way easement over a portion of land adjoining the Fontana 111 and CSUSB Properties and controlled by the San Bernardino County Flood Control District. This right-of-way easement in favor of the Project would permit pedestrian and vehicular access to and from the Project, as well as installation and maintenance of utilities. The Parties agree to cooperate in efforts to obtain this necessary right-of-way easement at the earliest possible time in order to facilitate final design of the Project, approval of the University Hills Specific Plan, and commencement of development. 3. Master Declaration.: Master Association. A Master Association Declaration of Covenants, Conditions, Restrictions and Easements ("Master Declaration") will be recorded on the entire University Hills Project Area, including the Faculty/Staff Housing Parcel. That Master Declaration for the University Hills Specific Plan will contain construction guidelines C'Design Guidelines") and provisions for a Design Review Committee. Apart from the development improvements for which Fontana 111 is responsible herein, the Foundation will be JCspotlst"ble for all construction on the Faculty/Staff Housing Parcel and compliance with the Design Guidelines and obtaining approval of the Design Review Committee. The Master Association shall have the duty and power to assess all dwellings in tbe University Hills Project, incllJding the Faculty/Staff Housing Site, for maintenance of certain common areas, including the 9 ():\wcIl\IIIIaall1lolulll c-.nil*"I-- (l)oo1 ..)11'...1.....- c-mlaI DowIopnlooI ftomCSU(6-14.1CI10) 01 (.17-2010),110o ;- '- 76 , "'- community center. The community center shall be available for use b>, all residents of the Faculty/Staff Housing. Some of the other residential communities within the University Hills Project will be part of additional sub-associations which will govem and maintain those areas. 4. Proiect Anoroval. As used in this University Hills Agreement, Project Approval means that all government permits and approvals, excluding building pennits, necessary for the construction of the Project, including the Faculty/Staff Housing, have been issued and are legally effective insofar as the time for legal challenge, initiative or referendum has expired, or if a legal challenge, initiative or referendum is timely made, then such is brought to a successful conclusion confirming the legal effectiveness of the Project Approval. 5. Mutual SUD,port ofProiect and Facultv/StBffHousina. The Parties recognize their mutual support of each other is vital in order to obtain the Project Approval. A full and complete copy of tile Fontana 111's proposed land plan portion of the Proposed University Hills Specific Plan is set forth in Exhibit "B" to this University Hills Agreement which the Parties agree is satisfactory. CSUSB and Fontana 111 agree not to criticize or object to the Project or the FacultylStaff Housing. If CSUSB or Fontana 111 has questions or concems regarding the processing by the City of San Bernardino or other governmental agencies of any of the various Project Approvals, each agrees to notify the other first privately and to meet and confer over the questions and concerns, prior to involving any third party including the Mayor's Office of the City of San Bernardino or any other governmental agency. The provision concerning mutual support does not apply to CSUSB faculty. staff and students objecting on their own behalf. 6. Disaporoval or Substantive Modifications of Amendments. The 'Parties further acknowledge that the understandings memorialized in this University Hills Agreement are contingent upon the Project being approved, as proposed, by the City of San Bernardino and other applicable governmental agencies. If the University Hills Specific Plan is not approved. or is approved with substantive changes that materially affect the understandings contained in this University Hills Agreement, then either party may provide notice to the other to meet and confer 10 Q:~C-blc>lllDNQ1 (llov Apa.)\I'IIlII""- eo-n"'~ llom au (",'_10)01 (1)o1141110).doc ,.-- '- 77 ,,-. to resolve the consequences of such action upon the understandings reached in this University Hills Agreement. If such meet and confer fails to resolve the issues, then mediation involving the Mayor's office and both parties shall occur in a timely manner. If that does Dot resolve the issues, then either party may proceed to commence tennination of this University Hills Agreement upon the providing of30 days advance. written notice. 7. The Parties Duties U\lOD Protect Approval. If the proposed University Hills Specific Plan is approved, then each party shall cooperate with the other to implement the University Hills Project and all of the University Hills Project approval conditions and mitigation measures, including without limitation executing subsequent documents, agreements and instruments, as may be necessary by the City of San Bernardino and other government agencies with jurisdiction over the Project. CSUSB and Fontana 111 acknowledge their respective obligations to bind their properties with covenants. conditions and restrictions which establish, among other items. a homeowners' association and shared rights and responsibilities, including assessment obligations, to the master clubhouse and recreation facility to be constructed as part of the Project. In addition, the Foundation and Fontana 111 acknowledge their respective obligations to participate in any Landscape and Lighting Maintenance Assessment District to be established by the City which provides for the shared financing of infrastructure necessary for the Project. 8. Not Transferable. This University Hills Agreement is applicable only to the University Hills Specific Plan Project Area, and it is not transferable to any other property. 9. Assionment. Trustees shall not have the right to assign its position in this University Hills Agreement, or any part hereof, without the express written consent of Fontana 111, which consent may be withheld for any reason or no reason. The Foundation may assign its position in this University Hills Agreement to any entity which becomes a successor in interest to the Foundation's position in the Fontana 111. Property but then, only if such assignee assumes all of Foundation's obligations herein. Subsequent to the initial conveyance by Fontana 111 to 11 Q:\wchIbIIaIIN...... CemmuoiIIcoIIIOM03 (Dov AplLJ\l'IIIII.-c-sIoaDovolapnlnl..... au (ll-I+ZID) 01 (6.IHOIO)..... l~" .,-. I \ 7~ FOWldation and Trustees, it is understood that the Trustees or the Foundation might thereafter deem it appropriate to convey the Research and Education Parcel or the Faculty/Staff Housing Parcel to another entity for management purposes. Fontana 111 may assign its position in this University Hills Agreement to any entity which becomes a successor in interest to Fontana 111 's position in the Fontana 111 Property but then, only if such assignee assumes all of Fontana 111' s obligations herein. ",-. 1 o. Notices. Any notice or correspondence delivered pursuant to this University Hills Agreement shall be given by depositing the same in any United States Post Office, POstage prepaid, and addressed to: To CSUSB: With Copy to: To Foundation: To Fontana 111: California State University San Bernardino 5500 University Parkway San Bernardino, California 92407-2393 Attention: Robert Gardner California State University San Bernardino Office of the Chancellor 401 Golden Shore, 4th Floor Long Beach. California 90802 Attention: Elvyra San Juan The Foundation for Califomia State University San Bernardino 5500 University Parkway San Bernardino, California 92407-2393 Attention: Deborah Burns Fontana Comers Ill, L.P. c/o Inland Communities Corporation 7536 Loiina Lane Los Angeles, California 90046 Attention: Jim A. Ahmad 12 0:__...... c:o-.II11III1OO-GOJ (Dev ,....)\fInIl ^'*"'"'" eo-.Iaa DovoIoplnolllIlOlD csu (6-14-10\0) 0\ (6-11-211101'- 7Q '- With, Copy to: Aradis Inc. 2001 Pennsylvania Avenue, NW Suite 1150 Washington, DC 20006 Attention: Amer Hammour With Copy to: William C. Holzwarth, Esq. Law Office of William C. Holzwarths APe 2155 Chicago Avenue, Suite 304 Riverside, California 92507 Phone: (951) 300-2000 11. Automatic EXDiration. This University Hills Agreement shall automatically expire, and shall become null and void, five (5) years from the date first written above, unless extended by mutual further agreement of the Parties. 12. Covenant of Good Faith and Fair Dealing. The Parties acknowledge their duty to act with each other in all respects concerning this University Hills Agreement lIDder the covenant of good faith and fair dealing. IN WITNESS WHEREOF, the parties have executed this AGREEMENT to be effective upon the date first written above. 13 Q:\WCWoIoIllNoIud c-nIIW\IlOOoOOJ (Dow A.....l'tFi... ..-- QlrQminI DlmIapIIIOIIlIlom au (6-1.-2010) 01 (6-17.?OIO)...... ,,~~ ,,-". Q~ ,.-. "--' ('AI JFORNIr1, STAn;. IlKIVF.HSITY SAN IH:R\!ARDINn /'_,~ ! { :' .._~' [/ll ~ ;' l j iLl:-.' /' 1/ f.l~'___'~~/ l- ~.____ ( LJ_~::.J... _ -bJ1;!"k1tI1~'f/ Albe;rK- Karnig, Presl(\ent .,f, 7h 5//;') \.) .----IJ":"'.. ...II:~ Dale I !\PPHOVED: TRIJSTEES OlfHE CALIFORNIA STATE UNIVr.RSHY :f f /.-\ .(f' ! .J~I 1 :1:-~-"'- "df~~a FJ~aJju;f.'-._---"---"----'-'- Assistanl Vice C}\allcdlor Capital Pl,mning, Design &. Construction ! i C'i (' " I ~, . __..-_._,,-l;.J'--:~--I---,t..~-----, .-, Dale '. ; THE FOUNDA-flON FOR C\LIFORNIA ST!dE UNIVERSITY SAN BERNARDINO -'-~)-Lb;;.~1Q:,,!D,Pi ~_~_~~.--,.~-.. _____.. Deborah Bums, Executive Dirct"tor _' .'~' .~.~.I L. Date (t '_".-t.'.1r'.;;.>!:': ,,:\ .: "':r.:,~..:-'~it~\) ;(1(';)::' tl.t'.,., ;\:" ',(.\ C;,', .'.iS~ (~...:. ',: ~-"':_~":l:i' t}.... ~1. ;m~. ,t'~",., f":;'.: ~~: i.; Ie., '" It : :'. >~.\np:,~; j""~"'~ \- ~1 c rONTANA CORNERS 111, L.P., c; Calif011lia limited paTtner~hiv By: ARADl, LTD., a Nevada limited partlJership, ils General Partner By: AR.ADt INC.. a Nevada corporation, it:; General Partner By:....__...........__.._... ...................-' AlTIer HammouL Pl\;sidenl [Ill\(' 2 l) '.h:'''''llnht.I;:)ll':\.jI~:l ! (;U;,,:-.H'llln.\l ;(1(:.1,.' (i.."~' "'p , ,;::;1',,1 t\lim: 'H'.::!! f ..';-,.:.~'r;i;lr lJ!':~/.r'r-,lfm~ il...i1. C~ll (t.. j.',..:'''!I)J {lll~- -I ':.',1 't1bi ,It.. r -'- ~? E,XHHll'f "'/1" AERlAl~ VIEW Of CSl'SB CAMI1(JS, FONTANA II! PROPERT\', ANn SURROUNDING LANO llSES WITH NOTATION OF A))PROXIMA'n: LOCATiON Of CERTAIN PRO.meT IMPROVEMENTS ('."-' '- r ~ Q~ ,.- '- ",-,,\ :'~ ,'--" Qll ,I"""""" '- FXHHlIT "U'c UHSP CONCF,PTl1:\L UEVF.LOPMENT PLAN ;.&'!~ J....- Qi:; c I~?. /' :}:', r";"i;:, ~:;);.};. ,. >'!. ~ \) Qh ;:~ \\) ~ ':::l;' ::~ ~ -" ""\ \ , '-" ~ " '\ -- "'- EXlDBIT "C" T-INTERSECTION AT THE EXTENSION OF LITTLE MOUNTAIN AND NORTH PARK .,,-, Q7 ~/J ". ".\\' .............-...--./ / j .... -.... ... " '.'. -- .".. / ' , . ,. ~. ,.- , ....... .'.... .., -: ,.""-..-:-......'-./',.. ......,. /... ........ ,"\ ~ "'-";.._~:~"\ ,,,,..,.... .....,.:.:::-:..::-."...'-~/..../~.~ .",il./ ' ........- .. :".,.F 1\. , " ". .......... .. ,. I ,,' ..... .t .! .. ;............ L." .~;> CSUSfJ:PROPERJY." ...">...........~...--j./ .' .../ J ." ; 't............_)). r~~:.~:~,\ ~..~..~.~:~::..~~=...: .':~~;.=~~A~~'-.:~'~:'_.~~:... . .''.-- .-.... ....... ... ...... ........_~/ m",,~ .._JI!lUI9I'I"I!' ---.-. ... rVfUl'lli'..-nvw~'~ ....... -.---..-.......... ",rJNlll!RSiryHJi.s l..:'\....... ..................---..,. ".... '--.,;,.', ,......., ,.._-..;;.;;;;.;;.' --- ....-- ===-d====~c.;;"",---- __ ____ _________L. _ _ _ _ ~ ---:-c:- -.",.c- CAMPUS CIRCU . /' .~ -.' , ... .. ..J .......... ,.j C/ ,\ c I) i" ....., L;t'~ ('-. .' i ----- ---- ----. ---------- ---------- ~., " '\ r' ..~... -- - ......- .. ~~..........~~ . ..-...... ..,'~-"".... . ..._-_.._~.....~..... . .,.... ''''~.;: ~ -.. '"'"""', "" .,~~.,....- ",./' ..., -.., .......^~~~~, \" \. . ..." ,n . ..." , .... \0" \ '''''. -- '~~ \ ~f '\ \~\. \ \\~I i\\l- I fil- ll\l~ .~ . 1 r:,'l. /1 (\.---"\ ,/ ,'. . Iii i. ! I l/ (' \ ,..-- '1' II 1.111',11 11'1.1 i j \. ,,-,. ~ ') c.~../ . .//l: Iii i ~~ ),)\ . 'II '\1 ! L-, ~ I: I I I I Ii II II!, 1:11\\ ! ~<~; } . I I .\ \ > J \ .It i I'll \l \ ; r-F ! t "1 ! ',\' \ \. ------ CITY Of SAN BERNARDINO · UNNERSITY H'US r-lNTERSEcnON AT EAST CAMPUS CIRCLE AND um.E MOUNTAIN DRIVE EXTENSION EXHISIT .C' ;"'" -..r/ ... ............... I c:.:: ~<~.;:2::~~::...~.:..:...::~--.-=--~~-..... '__.. c::,-,-:".J. . . . :"000-=-=-----..-.... ,< , ,'::;' BfSJJtICr~AY ~ ... f" \._J\ ,~ ,....-. -----) ,-J v"'-. ~ ...-. '- CSUSB PROPERTY \; -'. ------j~-..- \ ".-,,"-' ._' //1.. I I 1 ~ OCTOBER 20. 2007 . I .1 ~ I 1% PREPARED BY, . ~.. "'" H.- I _1llU_,.,r-.' Enljin-in9 JJJ5l10310 ....... sl PI . SuIte 20Q ottnlllCJ Rhor..... CA 9260l Suneying TeI:(Illl 3511-1433 Conlltruclion Services FlItC(lIfJl) 351-14.14 PREPARED FOR: . INLAND COMM1INII1I5 COIPOIA'ftON r-- '-- lBOI AYllOIIe 0 r the Slorl .Sulte 1205 LOll Angeles. CA 900&7 RR ~'. ntf':.UJtull. .J, 1.1 /"- '-- EXHIBIT "D" GRADING EASEMENT OVER LITTLE BADGER MOUNTAIN ,"-" ~ Qq ~ !'._.'.:. r:,.-. 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'. .....~..:: ~..... ,..,-:::....... ~- .<::...--...........---.. ...... "'.. ...;:'.:'.'--'" ,- .,~.~ /-:;- ...... r _.. __ ". ..~ . '::-:<'..--~..:.--........ .........:;.'.;~r /;:./ \ . ._._' 1 r--" '.. .... ~ '-'''''''-/ .'7 ,'o'. \ -~=~Jj~i~~~~< ,:\~:>~:---~-=::!,:~7~~~;:'~ ~~ COUIf1Y COIlIROL DfSTJIfCT PIIOP$TY I \ I CITY OF SAN BERNARDINO · UNIVERSITY H'W GRADING AND SLOPE EASEMENT OVER BADGER HIll. AT UITL.E MOUNTAIN DRIVE EXHIsrr .". OCTOBER 20. 2007 PREPARED BY, PREPARBJ FDR: INlAND COMM1III1ES (OIJOIA1ION t. J i I . Engilleering rasJ '0370 Hemel 51 PI I Sulle 200 ann ~g RIvenIde, CA 92503 SurYll}lll9 lol:(~) 358-1433 ConStruction Serwces f'...(9&I) 358-14301 t80\ AYIIllIe of lhe SIn Sulle 1205 Los Angela. ell 901Xi7 . II.. W 0-- 1 .,. aIU,,'" ,..... Qr" ~",,,.~"""1~_~"'_ .,."..",,, EXHIBIT "E" GRADING EASEMENT AND LOCATION OF RETAINING WALL AT THE INTERSECTION OF CAMPUS pARKWAY AND NORTH PARK /.~';-" .r' \...- 91 '-";<!I;;-' I I I f II I, II ....-. ~ p. -.......... II SAN 8EIINARDINO COUIIlY FlOOD CONTROL DISTRICT PROPERTY . "t:I~ __- ~ ..~ , " " " " , I " . l . ""- RIGHT OF.WAY AND / $LOPE EASEMENT I ,.....1 . ... ' I I' \ ... y~ \ I "MmD "...11I10 r' '\ l"',." \ I ~ WIIlIII"~ . ~\:.----j.. \\ \. \ \ -j ~., .\.._' _, l"r......., ..., '\ d_, ~~-~. I '" ,,"' ",-" I....,"\. I " \ 11 ~" , \ .)- " I"" \ ,,' \ C ... \ I __'-::"....--\ I):... , \ , \ , . I . . ._ _...., _-l" 'I"'" \ \ , \ I - - . _-- ., _---- 'v'" ,t-" \\ , .1 ~~ ___.>- ,,\ ... \\ \ l ..._.:.- 1 ',.,~-;'" .> , '\' i \ ," I '.. ....."....:........ , h' \\ ' .\ 1 . ...," ..... \ .....~ \ ,,\ ,: >, I : ",-" ,..," \ ,." p" ~ \ ".\ , 1 ,.....-. ,,,,f'" ."'.. 'l , \ , ~. I ~-' " , ,'''' \ \, l\ -." . ....." ~ \ ,/_ ',I ' ,\, -,"-'., ",' .... \ I i \~, . \ . , I 1 __,..... : ....-,. \ . I \ ,,-:,.""'\ \ . I I I .>',<lV".... .. . '.......( ~ l!.!' I ,,.- "."." CITY OF SAN BERNARDINO. UNIVERSITY H'US RIGHT OF WAY AND SLOPE EASEMENT AT THE 'NTERSEcnONOF 9l CAMPUS PARKWAY EXTENSION AND NOATHPARIC BLVD SHla" .E- OCTOBER 20, 2007 PREPARED BY: e!JEPARED FOR: INlANDCOMMllNmlS (,()IPOIA1ION Engineering fBSJ 10370 _I II Plcll'lIIlng =.:' Cl 92503 SIne~g TtI:(DSI) 351-1433 Conslructlon Serllices r_(9SI) 3511-1434 1801 Avenue 01 lha 5101'11 .Suile 1205 Los Angeles. CA 9011I7 t-,'L- i' - --..-,..- q? :..l.J l.~'~. '-- ;........eourm fI;,O(jD.....,., ,.-.. ~:... ..' I . . ..-.....,..-.' ..... .' ,.. .~_.. ,.'. . : ~ . , ~ ~ ,;;;I'~ , .~.. ~ . , .. -. . . ''"- Q~ EXHIBIT "F" FACULTY HOUSING SITE INCLUDING ENTRANCE INTO THE PARCEL \...- 121a-)1) _12DSI.1 c"- ~4 ;".0- . / } ,/'1 ' ~... / ,I // . / I }i/''''' ,I I' " ../ / .//'... /--' / //../ / ~ //.. ....... "./ / .' /.// ./ /.,/ . " . , , .,/" , I I . f II 2 r. I "- d / /' I ./ .,// ..-,/ ,.' ,) ../ ,,-/"" . ,t' r ..-' . _/ ). ......-- -....".. OCTOBER 20. 2007 PR~PARED BY, pREPARED FOR: NAND COMM1INII1ES COlPOlA1lON EfIgifteeriRg fBSJ 10370 Hem" $\ .........' SulI. 2IlD n..u ling RhInllI& ell 92503 Suneyin9 TtI:(1IS1) 351-1'33 ConslrucUon Services FOIC(951) 351-'\43' 1801 A~ue 01 the St~s Suite 1205 Los Af1\leles, CA 90067 ~.!' i' _ar"mr,\oM' qli /",-, ExmBIT "G" '- 2 UNIVERSITY STUB-OUT ACCESS POINTS INTO CAMPUS PARKWAY EXTENSION "- qF\ -I ! I '- ".,-. .\.-. "I .../~?:::.../ . ..::::.;:,':~~:":.>:~:->"""'"'''' ....;.~.;..- ::~.-:.<. ..~r-- ~.'.':~.:.'~':.' . - .- .:.... ....--. ..,., ..' - - < . ~... -" _. r....J ..-~;~./~ ..' ... ( .' ...".,.....~.. ...,:;-~....-...... ;."...,.~.",.. . ::::-.:~;;::. .. ,., -- - -:- " " .--.... \ . r....... ,-/..-1 .. '\ \ \ \. ~I\ .J)' ,.,....,.(.~,_..., ~_...... , ["-.J' __,,-' ll.,( ~, ,J ,r1\ J ~ ZOO," ~-. -.- ._...........--:~~:....-:.. ...-....- ~...' ::-~.-:~:::..:.::::-... ". '0. - . /"J --........-=~.<::o:-:.:::::-::-..._. -....-..:~CCJUNTY : ~~~~.~~-::.:~::::~~ -'~~'<. 'j ~.~_. ~~__... '_"'_'_ ___-.,..:::--... -.0.........-...... .... ... _..~~~ .....~...........~:-......_ .......-::. :...._._.. -_...._::..:__....~.~... ". iI!! , -'. - ". SiIrntiG-.:a,j..... ..... -...- . ~.=; --=-..~..- - ._-=~~::~.>~-~~p: \........... ,. ...... " .......... ..', ......_/.................. _r'\.__. -~ .~ / '- EIIJRANCE NO. 2 -- ;.. .. '. ''-, "'" "'--" . . ~ .. \ . .-.....----- ..........- -------- ~.../..... --...... - . - .~ \ , --. -., .......... "".. CSUCB'c.wPtIS I I I CITY OF SAN BERNARDINO. UNlVERsnY HILLS TWO ACCESS POINTS sru&Our FROM CAlfPUS PARKWAY fl' EXTENSION TO THE UNIVERSITY CAMPUS EXHIBIT nciH OCTOBER 2lI. 2007 J ,I ~ I II L PREPARED BY, PREPARED FOR: . .. '1NIAND COMMIINIIU5 COII'OIA1IOt4 Engilleeflnt fIlSJ 10310 IlMMt 'I Plonnlnt SuIt. 2QO r.__ . ......... CA !12!103 ......\1119 TeI:~l) J!iIl-I4J3 ~tiOll SenlGea. ,...(ISI) 351-1434 11101 AV8IIue 01 the Slors Suite 1205 ~ An,eIe" CA 90067 h-.~.J"' T --",,-,-.- -.J Q'7 ,.,- '-' ExmBIT "H" LOCATION OF THE TRAILS ACCESS FROM THE UNIVERSITY ON TIlE MAIN PROJECT TRAILS ALONG CAMPUS PARKWAY '- ~. \-- nn ~ '- "- --- ..... ...... ..... -. -- ...... ...... ...... ...... ...... ...... ...... ...... -- ...... ...... ...... ...... --- ...... ...... ...... --- ...... --- --- --- --- .. 8IRNAIIIIIO COUNI'f fLOOD c;oma. DfSTiucr PROPSlfY \ ~ \ \. \ \ \ \ \ \ \ \ . 8ElIIMRDfNO' ... \ ". SM..... . ~ FLOOD carma. DRlI~F\ PIIJPER'iY . -..... '- -..... f / ..-.. - - -..... .. ... CSUSB CAMPUS --- -~ . . CITY OF SAN BERNARDINO · UNNERSITY Hlu.s TRAIL ACCESS FROM THE UNIVERSITY CAMPUS ALONG CAMPUS PARKWAY EXHIBIT .". OCTOBER 20, 2007 I I I 1 1801 Avenue of the Stars Suile 1205 'Las .~geIl!5, CA 9OOli7 PREPARED BY, PREPARED FOR: . INLAND COlUIlINIrIU COIfQIA1ION I .J II I ~ d II Engineering !?!I5J 10370 lIomol 01 PI . ..... 2l1li annlll9 ........ CA 92IlD3 SunrjinCJ Tet(.I) .151-1"33 Construction Senica Fac(lSt) J!iII-I434 . ..,. .,. r"I- - I --"'-'-- qq ,,-... \.- AGREEMENT TO DONATE LAND BY AND BETWEEN FONTANA CORNERS 111, L.P. AND \,,--, TRUSTEES OF CALIFORNIA STATE UNIVERSITY AND THE FOUNDATION FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO Dated: JUDe ,2010 1~~ _W'c" ...~,._...~.~_~o.""" "",,_~""'_'" ,.," .. "'"""'-~'N''''_~~''''''''-''-_'"_,'~''''''"'__"''''''.'''+'' .tl'~ t TABLE OF CONTENTS \......- 8ubsequeut lBfol'lDlltiou. .............. ................ . ........ ........ ............. ...... ...... ........ 13 Brokers......... ................... ........ ...... ......... ......................... .......... ................. ..... ......... 15 Notices ......... ........... ......... ......... .......... .... ......... .............. ....................... .................... 15 Eatire .Agreement.. .............. ............... ................. ...... ......... ................... ...... ........ 16 SeverabiJity ........ ......... ................... .................................... .................................. 16 AssigDmeDt.................. ......... ............... .................. ..... ........ :.... ............ ... .............. 16 Waiven ....................... ............. .... .......... ............... .... ......... ...................... ............ 17 ~. ~ i Q:\wCIlIIDIOIIlI.... co-MleoIIlOo.G04 t.1Id OodII'iMl ~ \0 PoaMI LoIII_ CSU (6-14-2010) 01 (6-ll-20IO~dac 1~1 -_.."""',...,..~.~.',#~-"'....;.,,ir>"__,... .1""""'"' "- 14. CODStraction ................. ....... ................. ........... ............ ........... ........... ............ ...... 17 15. Me11Jer. ............... ...................... ..... ..... ................ ....... ....................... .................... 18 16. COlUlterparts ................................ .................~. .............~......... .............. ............... 18 17. No Obligations to Third Parties......................................................................... 18 18. Amendment to this Agreement.......................................................................... 18 19. TUne of the Essence............. .............. ................................ .............. .................... 18 20. Sueeessors ..... ................................ ...... ...................... .............. ..... .... .................... 18 21. Governing Law and Venue ................................................................................18 22. Cooperation ..of Parties ...................... .................................. ............ ......... ........... 19 23. Cooperation ReprdiDg Qualifieation of Donations ........................................ 19 24. Incorporation of Recitals and Emibits ............................................................. 19 EXHIBITS EXHIBIT "A" MAP: FONTANA 111 PROPERTY AND CSUSB CAMPUS EXHIBIT "B" UNIVERSITY HILLS SPECIFIC PLAN: EDUCATION AND RESEARCH PARCEL EXHIBIT "C" UNIVERSITY HILLS SPECIFIC PLAN: FACULTY /STAFF HOUSING PARCEL EXIDBIT "D"FIDELITY'S GENERAL ESCROW INSTRUCTIONS EXHIBIT &OE" FACULTY/STAFF HOUSING - GRANT DEED EXHIBIT up EDUCA nON AND RESEARCH P AReEL - GRANT DEED r \...v ii Q:~ c:o.....nIides\llCJ0.G04 ..... Dad'lnaI............1D _&..Id from csu (6-14-1010) 01 (6-1702010)Mc 111? /- '- AGREEMENT TO DONATE LAND THIS AGREEMENT TO DONATE LAND ("Agreement") is made as of this - day of JlUle 2010 ("Effective Datej by and between FONT ANA CORNERS 111, L.P., a California limited partnership ("Fontana 111 "), and the TRUSTEES OF TIlE CALIFORNIA STATE UNIVERSITY (''Tmstees") and THE FOUNDA nON FOR CALIFORNIA STATE UNIVERSITY SAN BERNARDINO ("Foundation"). Fontana 111, Trustees and the Foundation are each sometimes referred to herein separately as a "Party" and jointly as the "Parties." RECITALS A. Fontana 111 is the developer and uncontested owner the fee title interest in certain real property comprising 404 acres ("Fontana 111 Property") located generally northerly of, and adjacent to, the northerly property owned by Trostees and utilized fur Trostees' California State University San Bernardino ("CSUSB") main university campus (.'CSUSB Campus''). Both the Fontana 111 Property and the CSUSB Campus are located. in the City of San Bernardino ("City''), County of San Bernardino ("County"), California. The Fontana 111 Property and the CSUSB Campus are depicted in Exhibit "A" for general reference. The Fontana 111 Property was previously known as "Paradise Hills" and is the subject of the City adopted Paradise Hills Specific Plan SP 90-03, General Plan Amendment. 91-07, Development Agreement 90-03, and a certified Enviromnental Impact Report (collectively the .'paradise Hills Specific Plan"). The Paradise Hills Specific Plan provided certain land use entitlements and vested rights (..Entitlements") to develop 504 residential units on approximately 229 aCIeS of the Fontana 111 Property. B. CSUSB has expressed to Fontana 111 certain needs of the CSUSB Campus. those.important.to.facilitate the furthm: growth oftbat.C2D1PlUl, both in.shearsize and also in its ability to better serve its stUdents and faculty, and also to better serve the r .\..- 1 Q:\~,,-,-~I_ LalJla1l\F1ft11~"'o-hILudflomCSU (..I_IOlOl ("'7.20IO).AIoc 1~~ ,-- Public. The CSUSB Campus needs primarily comprise the following (i) land in its natural state, which can be used for biological, geological and general environmental research and studies, and (ii) land for affordable faculty and staff housing. """'- ''''''- C. In response to those needs, Fontana 111 desires to make a donative gift to Trustees and the Foundation and accordingly, Fontana 111 will make a new application to the City for approval of certain amendments to the Paradise Hills Specific Plan. The proposed amendments to the Paradise Hills Specific Plan will be made under the amended name "University Hills Specific Plan," and all references herein to the "Project," as modified, shall be by reference to that name. The proposed amendments to the Paradise Hills Specific Plan shall include among other things the following: 1. Amendments to the Paradise Hills Specific Plan that will involve consolidating the residential development onto an area of land located on the so~erly portion of the Fontana 111 Property resulting in a reduction of the developable area on the Property from approximately 229 acres to 184 acres (the "University Hills Specific Plan Area"), leaving a balance of approximately 220 acres of vacant land generally north of the southern branch of the San Andreas Fault line ("Education and Research Parcel") also shown in Exhibit "B" for future donation to Trustees. The donation of the Education and Research Parcel will result in substantial educational and financial benefits to CSUSB, the Public, and the surrounding neighborhoods. Those benefits will include the addition of substantial 'research and teaching opportunities for the University, as well as the creation of synergy within CSUSB by petmitting learning opportunities for various departments, promoting interdisciplinary University programs, and the ability to obtain State grants. The Public will benefit through the ability to participate in environmenta1. education opportunities, and through the enhancement of the quality of life for the Public in general and the local residents in particular. 2. Amendments to the paradise Hills Specific Plan that will help the CSUSB Campus realize its goal for affordable faculty and staff housing, by allocating a graded area within the Project specifically set aside for future donation to, and development .by. the Foundation- for that purpose'n("F8CUltylS~ aou$ing Parcel'~ as shown in Exhibit "C". The donation of the Faculty/Staff Housing Parcel will result in an "/"""'" 2 ~~lQO.ClO4Lad 0all\F".... .......-...Dooole Lull fiomCSU(60'4-2010)Dl (6017.aID).doc \...... 1&14 ~. "'"- improved housing site available for future affordable faculty~ staff and affiliated persons housing units within close proximity to the CSUSB Campus. The tenn "affiliated persons" means and refers to persons who are affiliated in some official capacity with CSUSB operations, and not to the general public. D. The Education and Research Parcel and the Faculty/Staff Housing Parcel are sometimes referred to herein jointly as the "Donation Parcels." E. CSUSB and the Foundation acknowledge the potential benefits to it and to the Public, and desires to encourage Fontana 111 in Fontana 111' s proposed amendments to the amendments to the Paradise Hills Specific Plan and the development of the proposed University Hills Specific Plan Area portion of the Fontana 111 Property to facilitate the donation of the Donation Parcels and the resulting benefits. NOW, THEREFORE, based on the above Recitals, and the covenants, terms and conditions set out below, the Parties hereby agree as follows: 1. DonatioD of DoDatiOD Pareels. 1.1. Offer to DODate. Fontana 111 hereby offers to cause the donation to Trustees and the Foundation of the Donation Parcels at such time, and upon the conditions, as set forth herein. 1.2. Aecentaace of Donation. Trustees and the Foundation hereby agree to accept the donation and conveyance of the Donation Parcels at such time, and upon the conditions, as set forth herein. The Faculty/Staff Housing Parcel sball be conveyed to the Foundation California State University San Bernardino and the Education and Research Parcel sball be conveyed to the Trustees. 1.3. n..brmj..doa of Value. The Parties agyee that it is Fontana Ill's intent to make a gift comprising the Donation Parcels to Trastees and the Foundation, and intends to report the transaction when consummated as a charitable contribution for income tax purposes. Accordingly, Fontana 111 intends to make .... ..appropriate application to the Internal Revenue Service ("JRSj .for tax benefits resulting :from the Donations. Fontana 111 shall obtain a "Qualified Appraisal" of each of the 3 Q~nluoIIIaIoaI Colunuilillllloo.oo4 Lnol 000\1'111I "-' to DanaIo LonoI hnesu (6-14-1010) 01 (6- 1 7.aDl0).d0c: '\.....- 1 filJ:; /"-" Donation Parcels, as defined in Section l70(f)(11)(E)(i) of the Internal Revenue Code ("'IRC"), conducted by a "Qualified Appraiser" as defined in Section 170(f)(11)(E)(ii) of the IRC, and shall be responsible for compliance with all laws and rUles of the hrtemal Revenue Service relating to claiming the contribution. The Qualified Appraisals shall determine the "Appraised Values." TrusteeS and the Foundation make no representation to Fontana 111 as to the tax consequences of such an election. Fontana 111 shall obtain independent tax counsel and will be solely responsible for compliance with the gift value substantiation requirements of the IRe and California Franchise Tax Board. 2. CODditioDS to Donation. 2.1. ConditioDS of Fontana 111 Precedent to CansilU! the Donation. Fontana Ill's obligation to perform under this Agreement is subject to the satisfaction (or waiver by Fontana 111) of each and all of the following conditions precedent (Fontana 111 shall use its commercially best efforts, with the active support of Trustees and the Foundation, tc attain each and all of these, but makes no assurance of its success in that regard): a. Fontana 111 shall have obtained full and final approval by the City and all jurisdictional and other controlling governmental agencies (collectively, the "Govemmental Entitlement Approvals") for the proposed 980 dwelling University Hills Specific Plan, and the time periods for all legal challenges to such Governmental Entitlement Approvals approvals shall have expired and no legal action sball be pending; b. There shall be no moratoria enacted effecting. the University Hills Specific Plan Area; c. Fontana 111 shall have recorded a final map for the University Hills Specific Plan Area which map includes, either as an identified lot or patce~ as a "not a part" parcel, the Education and Research Parcel. and the City approved University Hills Specific Plan shall show the Faculty/Staff Housing Parcel as a separate planning area and the final parcel map shall show it as a parcel thereon; this condition of recorded map is intended to comply with the provisions of , ..Ca1ifemia .Government . Code Section 66499.30(e), ..and.is not waivable by either Party; '- ,...- -"- 4 Q:~niaIlIIolIlIIICa......ooIn_ LndDolllflnll __toDonald..... fialnCSU (6-14-2010)01 (6-1'1-2l110).cIac 106 /,,~~'~ d. Fontana 111 shall have received from the City a mass grading permit and the mass grading of the University Hills Specific Plan Area shall have been completed; e. The backbone infrastructure for the University Hills Project shall have been installed pursuant to the approved University Hills Specific Plan~ including paved public roads and utilities; f. Fontana 111 will include a restricti(Jn in the deed to the Education and Research parcel that the property will remain an open space parcel. Additionally the deed will reserve to the Public certain rights, including the continued use of the existing trails witbiIi the Education and Research Parcel, and reserve to the City, County and State and Federal Forestry Services the right to enter upon any portion of the Education and Research Parcel to address emergencies, including fires; g. The name of the Education and Research Parcel shall be "The Akkad Reserve," which name shall be used openly by CSUSB without any substitute or alternative name being used in all literature, signage, communications and progpms instituted by CSUSB for the University and for the Public; the name shall not be changed, altered or disregm:ded by CSUSB in any way without the specific written consent of Fontana Ill, which consent may be withheld in its sole discretion, as the name required in this Subsection g. is an important part of the consideration to Fontana 111 for the donation; and h. Trustees and the Foundation, through their proper authority structures, shall have approved the form and content of this Agreement, and sball have duly executed this Agreement. i. The FacultylStaff Housing Parcel shall have been approved by the City, as part of the City-adopted University Hills Specific Plan, being shown as PA-16 thereon, and such Parcel being specifically approved by the City for a maximum of four (4) acres in size and being zoned for not more than sixty (60) dwelling units. The Faculty/Staff Housing Parcel will be mass graded and will include .utilities. stubbed. .out .at. the site's adj9inipg right-of-way .for future "- ."........... \.-- 5 Q:~ eo..ueiaieo'nGNlM LlldDoH'IlII""-"" to Dooot. Lood Ii... au (6-144010) 01 '6-\1-2010)._ 1&\7 ,'- ',- connections. A point of entry will be provided from a public street up to the end of the curb returns. j. A Master Association Dec1a:ration of Covenants, Conditions, Restrictions and Easements ("Master Declaration') bas been recorded on the entire University Hills Project Area, including the Faculty/Staff Housing Parcel. That Master Declaration for the University Hills Specific Plan win contain constnlction guidelines ("Design Guidelines'') and provisions for a Design Review Committee. Apart from the development improvements for which Fontana 111 is responsible herein, the Foundation will be responsible for all construction on the Faculty/Staff Housing Parcel and compliance with the Design Guidelines and obtaining approval of the Design Review Committee. The Master Declaration or conveyancing deed will further provide that the Faculty/Staff Housing Parcel shall be reserved for housing for CSUSB faculty members, staff and affiliated persons until the end of build out of the multi-family portion of the University Hills development, or thirty (30) years from the date of this Agreement, whichever is sooner. The term "affiliated persons" means and refers to persons who are affiliated in some official capacity with CSUSB operations, and not to the general public. The Master Association sball have the duty and power to assess all dwellings in the University Hills Project, including the Faculty/Staff Housing Parcel, for maintenance of certain common areas, including the community center. The community center shall be available for use by all residents of the FacuhylStaffHousing. Some of the other residential commmities within the University Hills Project will be part of additional sub-associatiODS which will govern and maintain those areas. k. The IRS has issued all requisite approvals confirming the qualification of the donation of the Donation Parcels at the Appraised Values. 2.2. COllditioDI. of Trustees aDd the FouDdatioll to Aeeeutaaee of tlJe DonatioD. Trustees' and the Foundation's obligations to perform under this Agreement is subject to the satisfaction (or waiver by Trustees orthe Foundation) of each and all of the fol~owing conditions within the Inspection Period: EdlladOD and Research Partel. '- ~fPh:'-~ 6 Q:\wdlIIllIInd\bIIIftOen-oiIIoa\I1G0-G04 LAd DooIFillOl ~ Ioo.-IAM .... au (60I4-'alIG) 01 (6-17.-10)._ ~ 1lilQ '- a. There shall exist at the time of the conveyance of the Education and Research Parcel to the Trustees, an area, either on the southern border of the Education and Research Parcel, or on the northern border of the Plan Area, connected to a public street and improved for vehicle parking for a minimum of 6 vehicles, together with a facility for drinking water; b. Fidelity National Title Company ('Vfitle Company") shall be prepared to issue to the State its ALTA Owner's Standard Coverage Policy of Title Insurance ("Education and Research Parcel Title Policy") in the amount of the Appraised Value of that Donation Parcel, insuring title in the TrusteeS. c. The Education and Research Parcel description in the grant deed shall either (i) include features of the San Andreas Fault adequate for conducting seismic and geologic research, or (ii) include an easement and right of entry on to a portion of the Plan Area immediately adjoining the southerly boundary of the Education and Research Parcel, in the San Andreas Fault sufficient to conduct such studies; and Faeultv/StaffHolISin2 ParceL a. The site shall be graded. b. The site shaD have utilities stubbed out to the curb entrance. c. Title Company shall be prepared to issue to The F01mdation its CL T A Owner's Standard Coverage Policy of Title Insurance ("Faculty/Staff Housing Parcel Title Policy") in the amount of the Appraised Value of the Faculty/Statf Housing Parcel. 23. Title Polides. The Education and Researoh Title Policy and the Faculty/Staff Housing Parcel Title Policy are sometimes refeIred to herein jointly as the "Title Policies." 2.4. CoaDletioB of Co.ditioBs. Upon completion of the conditioned improvements and actions set forth in Sections 2.1 and 2.2 (the "Completion Date''), Fontana 111 will notify Trustees and the Foundation in writing ("'Completion Notices'') of such fact, and shall include with the Completion Notice with respect to each Donation Parcel: (i) the certification ("'Engineer's Certification") by a civil engineer licensed by the State of California, certifying to c 7 Q:\wcIM.~1lII CanunaIllIIo&\II_Lod Daa\l'lool A__1O llaMIa....1nIIl au (60140:1010)0\ '6017-21110).... 1li\q ',-" the Completion of the physical improvements and mapping, (ii) proforma title policies issued by the Title Company, signifying Title Company's willingness to issue the Education and Research Title Policy and Faculty/Staff Housing ntle Policy, and (Ui) without warranty, copies of all reports, studies. plans, surveys$ specifications, and other documents pertaining to the physical, geological, or environmental condition of the Donation Parcels that are owned by or in the possession of Fontana 111 (collectively, "Project Documents"). 3. Trustees and the Foundation's Insuec:tion of Donation Pareels' for Future Use. ~*-<"'" 3.1. Trustees' and the Foondation's Access to the DODation Pareels. Upon Fontana 111 's issuance of the Completion Notices, and for the period to the Close of Escrow ("Assess ,Period'j, Trustees, the Foundation and their authorized agents and consultants shall be permitted reasonable access to the Donation Parcels. Access shall be permitted dwing normal business hours upon at least three (3) business day's notice to Fontana 111, and shall be subject to the provisions set forth in Section 3.2. The right of access sball include the right to conduct normal noninvasive engineering analysis and environmental audits of the Donation Parcels, and upon specific authorization of Fontana 111, soils tests, all for the purpose of Trustees, the Fooodation and its agents and consultants beginning to plan for its future use of the Donation Parcels. 3.2. IndemDifteation of Fontana 111. During the Access Period, Trustees and the Foundation shall indemnify and hold harmless Fontana 111, its officers, employees. agents, consultants, contractors, subcontractoIS and affiliates, and the Fontana 111 Property (collectively, the "Fontana 111 Indemnified Parties'') from and against all losses, claims, damages, liabilities, charges, fees, fines, penalties, iIguries, claims of personal iqjury or property damage, judgments, liens and expenses (collectively, "Claims"), including costs and attorney's fees incurred as a result of defending against and resolving such Claims resulting from, or arising out of. entry on to the Donation Parcels or any other part of the Fontana 111 Property by Trustees' or the Foundation's respective employees, officers, agents, consultants, contractors, subcontractors and affiliates or others acting on. behalf of. or are under: the C9ntrol . Qf Trustees or the Foundation (collectively, "CSUSB Indemnifying Parties''), except to the extent that any ,,~. 8 ~_ee-.oIIl8IIIl_ LooIDoI1I'1oII ~1101lOIIU"''' a-CSU(6-14-:I010) 01 (6-11-2010)..... '- 11 r" '",~. such Claims arise solely out of the gross negligence or willful acts of Fontana 111 Indemnified Parties. Any entry onto any portion of the Fontana 111 Property, including the Donation Parcels by any of the Indemnifying Parties shall be at reasonable times after notice to Fontana 111 in accordance with Section 3.2. 4. II!!!:. 4.1. Review of Proiect DoeumeDts. Pursuant to Section 2.4, Trustees and the F01mdation will have received the Project Documents along with the Completion Notices, and may use those documents and information in further analysis of its proposed uses of the Donation Parcels. Fontana 111 agrees to reasonably cooperate, at no .further cost to Fontana 111, in assisting Trostees and the Foundation to obtain further information as reasonably required by Tmstees and the Foundation for this analysis. To the extent the title information provided by Title Company reflects property taxes or assessments on the Donation Parcels, Escrow Agent shall prorate those to the Close of Escrow and Fontana 111 shall be responsible for the payment of that portion prorated up to the Closing Date. It shall be the sole responsibility of Trustees or the Foundation to petition the County (and other appropriate taxing authorities) for any potential tax relief . from the portion prorated from after the Close of Escrow, but in the event that relief is not forthcoming, then to be responsible for the payment thereof. 4.2. Survey. Following the full execution of this Agreement by all parties, and in connection with its engineering of the Fontana 111 Property, Fontana 111 will cause to be completed surveys of the Donation Parcels, (if such is required in connection with the Qualified Appraisal) to be prepared by a registered surveyor or professional engineer ("Surveysj. 5. pose of Ese row . 5.1. Escrow At!eDt. Fidelity National Title Company ("Escrow Agent") shall act as Escrow for this transaction. Escrow Agent's General Instructions are attached as Exhibit "D." 5.2. Ii@!. Simultaneously with the Close of Escrow, Escrow Agent shall cause Title Company to issue the Title Policies in the amounts of the Appraised Values of1he Donation.Parcels, as detemdned.by the Qualified Appraisal. " ~""""-' r- ~ 9 Q:~ ~1Q0.404 LM Don\fiul ~uoD"'leI"" .....csu (6-1+1010)01 (6-17-1010).<la0 111 ;/~ 5.3, Fontana 111's Denosits into Escrow. Fontana 111 shall deposit with Escrow Agent, not less than two (2) business days prior to the Close of Escrow, the following: (i) Grant Deeds, each describing a Donation Parcel, (in the forms attached as Exhibit "E" and Exlumt "F') in recordable form, fully executed and acknowledged by Fontana 111 ("Deeds"); (ii) The original Master Declaration of Restrictions (and any other documents to be recorded to comply with requirements of the California Department of Real Estate - "DRE"), in recordable fonn. fully executed and acknowledged by Fontana 111 ~ (iii) Fontana 111 's approval of the draft of Escrow AgentSs Closing Statement; and (iv) Funds required. if any, to pay Fontana Ill's prorated portion of property taxes and any monetary liens on the Donation Parcels, prorated to the Close. 5.4. Trustees' and I'oundatien's Denosits into Escrow. Trostees and the Foundation shall deposit with Escrow Agent, not less than two (2) business days prior to the Close of Escrow, the following: (i) Trustees' and Foundation's approval of the draft of Escrow Agent's Closing Statement; and (ii) Funds required, if any, to pay Trustees' and Foundation's prorated portion of property taxes. 5.5. C~ Date. The conveyance of the Donation Parcels to Trustees and the Foundation and the closing of this tran.S8Ction ("Close of Escrow") shall take place within thirty (30) days ("Closing Date'] following the receipt by Trustees and the F()undaUon of all Completion Notices, unless otherwise agreed upon by the Parties. 5.6. Eserow ClosiD2 Statement. No less than two (2) business days prior to the Closing Date, Escrow Agent shall deliver to Trustees, Foundation ~ to Fontana Ill, for their respective approvals, drafts of Escrow Agent's Closing Statem.ent showing aU charges to each.ofthe Parties and proposed disbursements from th~ Escrow. '- c 10 Q:\wI:MIIIIIIIIN'" c:.aunualIiaIIla0.004 Lad Dcla\filloI",,-1O Ponoh I.IIId "'. (SU 16-14-2(111)01 (6-17-2010)._ 112 ""'- 5.7. Cloue: Procedure. On the Closing Date (or any ex.tension thereof), Escrow Agent shall close Escrow as follows: (i) record the Master Declaration of RestrictioDS (and other documents required by DRE) (if not previously recorded) on the Faculty/Staff Housing Parcel; then (ii) record the Grant Deeds (marked for return to Trustees) with the County Recorder (with the Grant for the Education and Research Parcel containing covenants regarding conservation restrictions and Public open space provisions as provided in Section 2.1 f); then (ill) issue the Title Policies; then (iv) prorate taxes, assessments, and other charges, if any, as provided in Section 4.1 and Section 5.8; then (v) charge the Parties for those costs and expenses to be paid pursuant to this Agreement; and then (vi) prepare and deliver to both Trustees, Foundation and Fontana 111 one signed copy of Escrow Agent's Final Closing Statement showing all receipts and disbursements of the Escrow. If EScrow Agent is unable to simultaneously perform all of the instructions set forth above, Escrow Agent shall notify Trustees, Foundation and Fontana 111 and retain all funds and documents pending receipt of further instructions jointly issued by Trustees, Foundation and Fontana 111. 5.8. Prorations. Escrow Agent shall prorate the following costs at the Close ofRscrow: (i) Fontana 111 shall pay: a. to the extent not otherwise exempted or waived by applicable laws, all governmental conveyancing fees and taxes due upon transfer of the Property, including, but not limited to, all documentary 1:raDSfer taxes; b. all charges in connection with issuance of the Title Policies in the amounts of the Appmisals including the issuance of Title lDsurance; ~. '-' 11 Q:~~lIJO.G04 LooI Doa\F"lftol ~IODoaMaLudfnllllCSU 16-'''20'0)01 {6-'7.:lDIOlJloc 11~ c. to the extent not otherwise exempted or waived by applicable laws, the recording charges in connection with recordation of the Master Declaration of Restrictions and the Deeds; d. the entire escrow fee charged by Escrow Agent; and e. Fontana Ill's share of property taxes and assessments, prorated to Close of Escrow. (ii) Trustees sball pay: a. no charges for Escrow Agent's services. b. Trustees' share of property taxes and assessments, prorated from after the Close of Escrow if Trustees are unable to gain relief therefrom pursuant to Section 4.1. (iii) Real Estate Taxes, Bonds, and Assessments. Real property taxes shall be prorated at the Close of Escrow based on the most. current real property tax bill available, including any additional property taxes that may be assessed after the Close of Escrow but that relate to a period prior to the Close of Escrow, regardless of when notice of those taxes is received Of who receives the notice. In this regard, Trustees acknowledge that it will be fully responsible, after the Close of Escrow, for making application to the San Bernardino County Tax Assessor (and any other appropriate agency) to obtain a determination that the Donation Parcels, once legally owned by the Trustees or the Foundation, is exempted from further property taxes or assessments. 5.9. POl!l8essiOD. possession of the Donation Parcels shall be delivered to Trustees and the Foundation at the Close of Escrow. 6. Fo.tau 111's ReDreseutatiltDs aDd Warnaties. Fontana 111 represents and warrants to TlUstees and the Foundation that as of the date of this Agreement and as of the Closing Date for each respective Donation Parcel: 6.1. 'R-mous Substulees. To the best of Fontana 111's actual knowledge, the Donation Parcels are: (i) free from unpermitted levels of Hazardous Substances (as defined below); (ii) contain no buried or partially buried storage tanks located on the Donation Parcels; (ill) has not been used for the generation, storage or disposal of any Hazardous Substance and no Hazardous substance bas been.. ~led, />i"~' i 12 ~...~iA\ll_.....d Doft\FIIIII A,,--to- LIIllI_CSU (6-14-1010)01\6017-2010)"" "- 114 r '- disposed of, or store on, under, or at the Property; and (iv) has never been used as a dump or landfill; 6.2. ComDIiaDce with Law. The Donation Parcels will be, at the Completion Date, in material compliance with all applicable conditions set forth in the University Hills Specific Plan; 6.3. Leases. No leases, licenses, or other agreements allowing any third party rights to use the Donation Parcels are or will be in force as of the Closing; 6.4. Liti2ation and Investi2ations. To the best of Fontana 111 ~ s actual knowledge, there is no pending or threatened litigation, administrative proceeding, or other legai or governmental action with respect to the Donation Parcels, and Fontana 111 has received no nonce, warning, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Donation Parcels are or have been in violation of any Laws or Environmental Laws, or informing Fontana 111 that the Donation Parcels are subject to investigation or inquiry regarding the violation Qf any Laws or Environmental Laws. 6.5. Aeceu to the ProoertY. Access to the Donation Parcels will be, as of the Completion Date, directly from a public right-of-way. 6.6. Disclosure. Fontana III has disclosed to Trustees and the Foundation all information, records, and studies in Fontana Ill's possession in connection with the Donation Parcels, including any reports or studies concerning Hazardous Substances. All information that Fontana 111 has delivered to Trustees and the Foundation, either directly or through Fontana 111'8 agents, is to the best of Fontana Ill's actual knowledge, accurate and Fontana 111 bas disclosed all material facts known to Fontana 111 concerning the operation, development, or condition of the Donation Parcels. To the best of Fontana 111 's actuallcnowledge, Fontana 111 has received no written communications from any authority indicating any concerns or problems with the Donation Parcels related to the potential existence of Hazardous Substances. The term "to the best of Fontana Ill's actual knowledge" shall mean Fontana Ill's current actual knowledge without investigation. . .6.7.. . ...Subaeouent . Information. .Fontana 111 shall promptly. .notify Trustees and the Foundation of any facts that would cause any of the representations ,.-. ~ 13 Q.___c-mitieol1_ LodDoa\Ploal ~ ...Doul.~_CSU (~I4.2DIO)OI (~\1.2010).doc 115 ""'-- contained in this Agreement to be untrue as of the Close of Escrow. If Trustees and the Foundation reasonably conclude that a fact materially and adversely affects the Donation Parcels, Trustees and/or the Foundation shall have the option to terminate this Agreement .by delivering written notice to Fontana III and Escrow Agent. If Trustees and/or the Foundation terminate this Agreement pursuant to this Section, Escrow Agent shall cancel the Escrow and Fontana 111 shall be responsible for all costs of Escrow. 6.8. DefiDition of Hazardous Snbsunee8. Hazardous Substances shall mean any substances, materials, or wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws, or regulations and any material, waste, or substance that is a petroleum or refined petroleum product, asbestos, polychlorinated biphenyl, designated as a hazardous substanCe pursuant to 33 U.S.CA. Section 1321 or listed pursuant to 33 U.S.C.A. Section 1317, a flammable explosive, or a radioactive material. 7. Anthom of Parties. 7.1. Anthoritv for Fo.taD. 111. Fontana 111 warrants that this Agreement and all other documents delivered prior to or at the Close of Escrow: (i) Fontana 111 is a limited partnership and further represents that Fontana 111 is duly formed and validly existing and in good standing under the laws of the State of California; (ii) have been authorized, execu~ and delivered by Fontana 111; (Ui) are binding obligations of Fontana 111; (iv) are collectively sufficient to transfer all of Fontana 111's rights to the Donation Parcels; and (v) do not violate the provisions of any agreement to which Fontana 111 is a party or which affects the Donation Parcels. 7.2. A.thoritv for Trustees ud tile Foundatioll. Trustees and the Foundation warrant that: (i) this Agreement and all 01her docwnents delivered prior to or on the Close of Escrow have been authorized. executed, and delivered by Trustees and the " . Foundation; (ii) are binding obligations ofTrosteeS and the Foundation; and ,-. '- 14 ~"'NNnIud~I- ~llaIl\finol ~1O_I.IDd_CSU("I440IO)OI (l\ol7_Ol.doc 11~ ""'- (Hi) it has full and complete authority (and will obtain such additional authority or approvals from time to time as needed prior to issuing such approvals herein) to approve, on behalf of itself, Trustees and the Foundation. all approvals and authorizations required of it (or of Trustees or the Foundation) in connection with the due diligence, conveyance of the Donation Parcels and the Close of Escrow, together with any other actions required of it herein. 8. Brokers. Both Parties represent that no broker is involved in this Agreement and each Party agrees to indemnify the other against brokerage or commission claims arising out of the indemnifying Party's actions. Each party agrees to defend, indemnify, and hold hannless the other party from any claims, expenses, costs, or liabilities arising in connection with a claim by a broker for any such fees Or commissions. 9. Notiees. As used in this Agreement, notice includes but is not limited to, the communication of any notice, request, demand, approva~ statement, report. acceptance, consent, waiver and appointment. All notices must be in writing. Notice is given either (i) when delivered in person to the person or company intended named below, (ii) when delivered via facsimile with confumation from the receiving party Via return fax; or (iii) when sent via reputable overnight courier (such as Federal Express). addressed by name and addressed to the party or persons intended, as follows: ,~~--, '- To CSUSB: California State University San Bernardino 5500 University Parkway San Bernardino, California 92407-2393 Attention: Robert Gardner With Copy to: Office of the Chancellor 401 Golden Shore. 2m Floor Long Beach, California 90802 Attention: Elvyra San Juan To Fo1U1dation; The Foundation for California State University San Bernardino 5500 University Parkway San Bernardino, California -92407-1393. Attention: Deborah Bmns ,,,,~ 15 Q:\uHlMnlUldllnIIaoI C~ICJ0.G04 Lnd Dae'\fiaol ^""""'"'" IDDouIO LMI __csu (6-_10)01 (6-174010).doo ~ 117 "..-' I '- To Fontana Ill: With Copy to: With Copy to: Fontana III clo Inland Communities Corp. 7536 Lotina Lane Los Angeles. California 90046 Attention: Jim A. Ahmad Aradi. Inc. 2001 Pennsylvania Avenue. NW Suite 1150 Washington, DC 20006 Attention: Amer Hammour William C. Holzwarth, Esq. Law Office of William c. Holzwarth, APe 2155 Chicago Avenue, Suite 304 Riverside, California 92507 Phone: (951) 300-2000 Until such time as a party gives notice of the change of address in accordance with the termS of this Section. 10. EDB" A2rcemeDt. This Agreement and the documents referenced herein contain the entire agreement between the Parties to this Agreement concerning the donation of the Donation paxcels to Trustees and the Foundation, and shall not be modified in any manner except by an instrument in writing executed by the Parties or their respective successors in interest 11. Severabilitv~ If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect if the remaining portions of this Agreement, read as a whole, continue to fully satisfy the intent of each Party. 12. Aui_meat. Trustees shall not have the right to assign its position in this Agreement, or any part hereof, without the express written consent of Fontana Ill, which consent may be' withheld for any reason or no reason. The FOlmdation may assign its position in this University Hills Agreement to any entity which becomes a successor in intereSt to the Foundation's position'in the Forttai1a Ill' Property, but,then, only if such assignee assumes all of Foundation's obligations herein. Further, if such assignment J"'-. \.- (- "-- 16 Q:\wOh\InIoIldIl..... eo.-Jlilieolll- Lnd Dall\fiIII ~ to _l.uII fro. csu (6-l4-2ll10) 01 (6-\1-2010)..... L1T.ff....,.~~"';."''''''~''''',.--".. 11R .",,- takes place before the property bas been transferred between the parties, such entity shall be qualified under Section 503(c)(3) of the Internal Revenue Code ("Code'') at the time of the transfer so that such assignment will not have a negative impact on the qualification by Fontana 111 of the donated areas - the Education and Research Parcel and the Faculty/Staff Housing Parcel - for purposes of the tax benefits to Fontana III under the Code. Finally, as to possible assignment of Foundation's responsibilities, such assignee entity must be organized under the California Government Code as an entity approved to own and manage campus housing. Subsequent to the initial conveyance by Fontana 111 to a qualified entity as described herein, it is understood that the Trustees ()I the Foundation might thereafter deem it appropriate to further convey the Research and Education Parcel or the Faculty/Staff Housing parcel to another entity for management purposes and that such transferee entity might not meet the qualifications set forth in this Section 12; provided. however, that in no event shall either the Education and Research Parcel or the Faculty/Staff Housing Parcel be used for any purpose other than those specific purposes described and set forth herein until the event or time period set forth in Section 2.1.j. has occurred (i.e. end of build out or 30 years whichever is sooner). Fontana 111 may assign its position in this Agreement to any entity which becomes a successor in interest to Fontana 111 's position in the Fontana 111 Property. 13. Waivers. A waiver or breach of covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act. 14. Constnletion. The Section headings and captions of this Agreement are, and the arrangement of 1his instmment is, for the sole convenience of the Parties to this Agreement. The Section headings, captions, and mangement of this instrument do not in any way affect, limit, amplify. or modify the tenus and provisions of tbis Agreement. The singular form shall include plural, and vice versa. This Agreement shall not be construed as if it had been prepared 'by ODe of the Parties, but rather as if both parties . . have prepared it.. . Unless. . otherwise. indicated, all references to Sections are to this r- ~ c 17 Q~ eo-oiI_l- ..... DoaII'""'" "..,..-10 DouIeLud_CSU ~6-I4-2DIO)Ol (6-17-20IO).doc 11q , .. '""'._-~..-.__-':_".~-'~ c Agreement. All exhibits referred to in this Agreement are attached to it and incorporated in it by this reference. 15. MeJ'2er. All of the terms, provisions, representations, warranties, and covenants of the parties under this Agreement shall merge in the Deeds and other documents recorded at the Closing. 16. Counteroarts. 1bis Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrmnent 17. No Obliml.tioDS to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties hereto, to any person or entity other than the Parties hereto. 18. Ameadmeut to tI1is Aueement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties hereto. 19. Time of the Essenee. Time is of the essence in this Agreement. 20. Su~rs. This Agreement shall inure to the benefit of and shall be binding upon the Parties to this Agreement and their respective heirs, successors, and assigns. 21. Govern.mf! Law ad Vellue. This Agleement and any dispute arising hereunder shall be governed by California law. Each party hereby consents to the exclusive jurisdiction of 1he slate courts siUing in the County of San Bernardino, State of Califomia, in any action on a claim arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement. nm PARTIES HEREBY ACKNOWLEDGE THAT THE FOREGOING VENUE PROVISIONS HAVE BEEN CHOSEN AS THE APPROPRIATE AND coNVENIENT FORUM FOR ANY SUCH ACTION AND WAIVE ANY RIGHT TO OBJECT TO JURISDICTION ON TIIE BASIS OF LACK. OF PERSONAL JURISDICTION OR FORUM NON CONVENIENS. Each Party hereby. consents to service of process via mail or overnight courier to the addIess specified in Section 9 or by any other method pexmitted under California law. .-. 18 Q:\wldI\IIdUIlI_c:o.nmuolIioo\J10ll-0CM lad 00lN'iIlII "-"""" 10_ Loo4 _csu l'-I4-,.111)01 ("I1020lO).doc '- 1 ?Il MJ._li 1. ij:t....l_._+".."<...''', ~ 22. Cooner.DoD of Parties. In the event the Parties are not in agreement regarding compliance by Fontana 111 with the conditions set forth in Section 2.2, or in the event other disagreements arise between the parties~ the Parties agree to first privately meet and confer over such issues~ and if after reasonable attempts are made by the Parties to resolve those issues~ then to request that the Mayor's Office of the City select a reputable civil engineer~ licensed by the State of Califomia. to make an independent determination of Fontana 111 ~s compliance with the conditions set forth in Section 2.2. Recognizing that the entitlement process to be conducted by Fontana 111 fer approval of the University Hills Specific Plan could take approximately one (1) year~ and that the physical preparation of the University Hills Specific Plan AIea, as described in Subsections 'c~, cd', ce'~ 'r, 'i', and oj' of Section 2.1 could take an additional five (5) years, the Parties fully understand and acknowledge the need during those times for full cooperation between them and between each of them and the City and other governmental agencies which maintain some degree of control over the Donation Parcels and the Project. The Parties acknowledge their duty to act in cooperation with each other in all respects concerning this Agreement under the covenant of good faith and faU dealing. The understaDrHng for cooperation descn'bed in this Section 22 shall include the cooperation of each Party regarding approval of further documentation consistent with the spirit and intent oftbis Agreement. 23. CooDeratioD R.etrardiu OaaliilC8UoD of Donations. TrusteeS and the Foundation acknowledge that Fontana 1 i 1 intends to apply for taX benefits resulting ftom the donation of the Donation Parcels~ and Tmstees and the Foundation agree to reasonably and timely cooperate with Fontana 111 and IRS~ both before and after the Closing, in providing to IRS and any other appropriate governmental agencies additional infonnation as might be requested to confirm issues and information relevant to their analysis of Fontana Ill's application for tax benefits resulting nom the Donations. 24. IDeorooratWD of Recital. and Emibits. The Parties acknowledge the accuracy of the Recitals. The Recitals and the Exhibits are hereby incorporated into this Agreement as if sel forth in full herein. 'IN WITNESS WHEREOF, the parties have executed this AG~~T to be effective upon the date first written above. "- .....~ l '-- 19 Q:\M:IMoI......... ~1Q0.004 Lao! DootF.... A,,-ID u.l"IMd...... csu (6-14-20101 DII6-1J.2Dlll).dac 1 ?1 ,,,..- '-' CALn:(lRNIA Sl !;fr IJl,.jJVFRStl\' SA>.] BFRN/\ll.Drr<() APJI\WVED, 'i'In;Sl'ELS OF TIll (':\LU'()K~<I!\ :-n /\'IT IfNl~LRSI1'( (",'j , ". . " ,j 1 :.." (, j -'\~ \ tl / }j~\{ /.~.),.~~ /.;l''''- ~~~,~~R's;;~'~~;rl"" Assi:;tant Vice CIHtncellor Capital Planning. {ksigll & ('ollstrudion S I:~ Date THE FOliNDATION FOR CALlHjRNIA STATE UNIVEl{SllY SAN BERNARDINO ,r' '-" ~2~~"Oe~3?:.:.i_l_5.T3''!::!.':..r:~~::.~~L..._,...... Dehorah Burns.. Execulive Director ....1.=.f~~:~ }~..> H. __......u Dak fONTANt\ COKNERS II L LP., a California iimited partnership By: ARADt LTD., a Nevada limited panncrship, itg General Partner By: ARADI. INC., a Nevad<l corporation. ih General Partner By: . Amcr Ilammo\U, Pn~~i("~nl ~... Date )0 .~ '.",,,h"_".;~r. Lb~,~~, i: "l"n','ml:",~"")>-'--' l~'''' j 1,,; ~:'-;'l',l'i'l,: ''':,;,'''~:il'r::\' tn P",..I-{ -'~'" f.,.,. :' "'.1, :.'. i~. .1:;';:'; :;," r; :,.'.,:;; ,~,., c 177 ft_,'li:rtl!!l~""''''''fi'''''''''-'*''''.p~,' ~~~ ~ EXI:IlBIT " A" MAP: FONTANA 111 PROPERTY AND CSUSB CAMPUS -"'./'1'."'......, .,,-, /""""" '-' 21 Q~CoIIlnluallloo\ll00.aM LIlli DoI/IJ\oII ,...-10 _Lori_au (..I_II)DI ("I7-1DI~ 1n c c' c ~ < ,. ,~ ~. 'y h ~~ . ..~ 124 ~.n..R 1II ...1 r \-. EXlIlBIT "B" UNIVERSITY mLLS SPECIFIC PLAN: EDUCATION AND RESEARCH PARCEL c c 22 Q:\wdttIoIan4lllllanll Co-m;u\lI- L'" DaaV'inol ~ 10_...... - csu (6-14-1010)01 160I1.zt1IO).'* 1 ?!i r ~ r \ , CITY OF SAN BERNARDINO - UNIVERSITY HILLS DEPICTION OF DONATAnON PARCEL EXHIBrr KSI . OCIOBER 20. 2007 PR~PARED BY: PR€PARED FOR: INLAND COMMUNIIIES COIPORA1'ION I I d Engineering rJJSJ 10370 HIlI\tI sl Planning Sulla 2llO . R\MrIldt. CA 9250.1 SurWY"'9 TeI:(1I51 358-1433 Canslruction Services Fooc(lI51) 358-14~ IBOI A"llnUe 01 the Slors !ilile 1205 Los Angeles. CA 90067 1?fl .t~HIB1L~'('~'. rNIVERSITY HILLS SI)L(]FK PL;\:,\; FALUL'n'iSTAFF HOUSING SITE lSEE EXHIBIT "A"} 23 I ~-\...~.1;''''';~,n.'{JI'\b.r~1 (~I\l""If',ih..,;:.IIU'1 U114 t t,i O,I(.\tir.:.i 1\p.~(("lIwm Iv \),;,l:'~lt L,l,~l ht,;" C..,:i: 1\ - t.s 'Jr.!:}: l;l :~\ i'.' -:ti..:!Ij;. o.;,t I"'" \..... 127 ,/"'" ~ I I I II'. ~ 128 C:tJ X :r: - OJ - -3 n . . EXHIBIT "D" '"'-, FIDELITY'S GENERAL ESCROW INSTRUCI10NS ,"""'" '--' r' '-' 24 Q:""*,,,,11lld\11l1Ud eo.-alllolll_..... ~ ......._.0 - LInd .....csu (6-I40:lOIO)01 (6-17.a10).d0c 1?q ,,-. ,-. . GENERAL PROVISIONS 1. DEPOSIT OF FUNDS The law dealing with lhe disburSement of funds requires that all funds be available for withdrawal as a maller of right by the title entity's eSCWW and/or sub escrow ecx:ount pior to disbwsemenl of IIllY funds. Only cash or wint tnlnsf8mJd funds C8II be given immediate avaUablliy upon deposit Cash"'s chedcs, leIIe(s cIlecks and Certified d1edls may be available one bUSIness day aftIr depallIt. AI other funds such as personal, corporate or partnership checks and draftl ant IUbjed to mandatory holding periods IHch may cause material delays In disbursement of funds in this escrow. In order to avoid delaya. all fundqjl should be wile transfer. Outgoing wire .ltan8fers wDl not be authorized until confirmation r4 the ...peclIve Incoming wire tran5fer or of avllilllbllily of depo8IIId checIcS. AI fUnds ftlcelved In this flllClOW shaD be deposited wIh other escrow funds In a geflIIl'Il escrow account or accounts Qf Fidelity Nalional Tille ComPIIllY . Major Accounts, with any stale ornallonal bank, and may be lr8nSf8mld to any other 8lICh lJ8ftlIf8llBCRl'N account or accounts. SaId funds wHI not earn Inteftllt unless the InstrUctions otherWise speclflcally state that fundS shaD be clepOlll8d In an Interest- bearing account. All dilbursemenlllhall be made by check of FldeBty NatIonal TItle Company. Major Accounts. The princlp&Js to this escrow are hereby notified thai the funds deposited herein are Insured only to the I\mit provided by the Federal Deposit I '*K8nce Corporation. Arry instnIcllon for bank wire will provide AIalenable time or notice for Escrow HoIdeI'I carnpIIancllMb such lnatl'l.lCtion. Escrow Holder's sole duty and ftlsponstllllly shaD be to place said wile transfer inItrUcllons with Its wIt1ng bank upon ccnlIrmaUon of (1) satisfaclion of candlDona precedent or (2) docum8nt record8llon at c1Dl18 of esaow. Escrow Holder wi NOT be held nllIPCJftSIbJe for lost interest due to wire delays caused by any bank or the Federal Reserve System. and recommendS that all P8/lIeS mike themselves awere of banlclng regulations WIh regard to placement ofwRa. In the event thete Is lnsulfIcIent ttne to place a wire upon any such contIrmatlon or the wiras have clOsed for the day, the parties agree to provila wrIU8n instnJc:tklns for an allemallue method of disbulHlll8f1l WITHOUT AN ~lERNATIVE DISBURsElENT INSTRUCTION, FUNDS WILL BE HELD IN TRUST IN A NON-INlEREST BEARING ACCOUNT UNTIL THE NEXT OPPOR1UNllY FOR WIRE PLACENENT. If for any reason funds are I818Ir1ed or remain In escrow following the close of escrow, you ant to deduct tlleNlfrom a reasonable mo~1y charge as cuetodian thereof d not less than $10.00 per month. 2. PRQRA110NS AND ADJUSTMENTS AI pIOrations and/or Idjustments called for in this escrow aAl to be made on the basis of a thirty (30) day month unl... othelwise instructed in WIlIng. You are to use information contatned on last available tax steternent, rental statement as provided by the Seller, benellclary'a stltement and fire lnsllr8/\C8 policy delivered into escnJW for the prorations provided for hefeln. 3. SlPPLEMENTAL TAXES The wIhIn described property may be subject to supplemental real property taxes due to the change of cwmershIp taking place through this escrow. Any $UpplemeJUlrul property taxes arising as a result d the transfer of the propelty to Buyer shIIII be the sole responslbllly of Buyer and any supplemental Alai property lueS .-mg prior to the closing daIIl shaR be the sole responslbilty of the Seller. TAX BILLS ISSUED AFTER CLOSE OF ESCROW SHALL BE HANDLED DIRECTlY BEtWEEN BUYER AND SELLER. 4. UTIunESlPOSSESSION T/Ilnsfer d ulIitIes and possession of the prerniln are to be settled by the parties d118l11y and oumide escrow. 5. PREPARATION AND RECORDATION OF INSTRUIIENTS Escrow Holder is aulhorized to pnlpIle. obtain, record and deliver the necessalY instruments to carry out the teJm$ IIIld conditions of this 8llCl'OW and to order the polley of title insurance to be issued at close of llSCfCIW as celled for In these InstnICtIons. Close d eacrow shaR mean the dale lnstrumenta.. recoldlld. 6. AUTHORIZATION TO FURNISH COPIES You are authorll8d to fumilh copies of these instruc\iOns. supplements. amendments, notices of canceRetIon lIrld Closing statements, to the Rell Estate Broker(s) and Lender(s) nll1'l8llln this escrow. 7. RIGHT OF CANCELLAlION Any pmcIpaIlnslruCllng you to cancel this escrow shaH file notice d cancalllltlon In your office In writing. You shall, Within lWo (2) working dayS tbIreaft8r, deliver, one oopy of svch notICe to each of the other prlnclpels at the 8ddIeUH staled in this eICRWt. UNLESS WRITTEN OBJECTION TO CANCELLA'TION IS FILED IN YOUR OFFICE BY A PRINCIPAL W1nilN TEN (10) DAYS AFTER DATE OF SUCH MAIUNG, YOU ARE AUTHORIZED TO COMPLY WITH SUCH NOTICE AND DEMAND PAYMENT OF YOUR CANCl:uAnoN CHARGES. If written objection is filed, you are authorized to hold all money and Instruments In this escrow and trike no fudh.. acUon until otherwIee dlrec:ted. either by the prlnclpals' mutu81 written instructions. or by final ClIder of a COIIIt of competent jurildlCllon. 8. PERSONAL PROPERTY No examin8llon or insurance as to the amount or payment of personal property IalleS is requiled un_ 8Jl8CificaI1y 1'8ClU8sled. By signing theSe General ProvisiOlUl, \he pa"" to the lISCfOW hel8by acknowledge that they .... IndernIIIfyIng the EIcrcNI Holder against any and III malle.. rellting to any "Bulk Sales' requirements. and Instnlc:t E8CIOW Agent to pracaact wIIh the closing III escrow without any considerallon d rn&tter of any nature whIIlSoever regarding "Bulk S...." being hlRdled throUgh escrow. 9. RIGHT OF RESIGNATION Escrow Holder has the right to ...\gn upon ten (10) days written notice delMmld to the prlncIpaIB hIreIn. If 8Ul:h rQht Is exen:ind. .. funds and cIocumentS shall be relum8d to the party who deposited them and Escrow Holder shall have no IIabIIIly her8und... 10. AUTHORIZATION TO EXECUTE ASSIGNMENT OF HAZARD MURAHCE POUCIES Either Buyer, S8lIar andlor Lender may h8nd you the InsunIIIOlI agelit's Ilm1IIt and insu..nce policy infolmaticln. 8Ild you are to execute, on behalf of the principals hlnto. fann 8I8\gnments of intIlreSt in any insurence poHcy (other than title inIUr8nl:8) C8~ for in this ll$Cl1lW, forward assignment IIIld policy to the Insurance agent, requesttng thlll the insurer consent to such transf8r andIOr lItI8ch a loss payable c1auee and/Or such Glher endorsements as may be required. and forward suell pof\cy(s) to the principala entitled thaI8to. It Is not your responslblllly to verify the infonnatlon handed you or the auignablllty d said insurance. Your sole duty it to forward I8id nquast to Insurance agent 81 cIolIe of e8CIOW. Further, there shall be no I8lponslbllity upon the part of Escrow Holder to renew hazard insurance poIicy(s) upon eIlpIrItIon or . ...0Ih0IWlM.'" It.in.foraJ.eJhw.dudna or.subsequent to.the.cIOSll of escrow. C8nc8I\8tiOn of any eacistI.n9 ~ lnIUIWIOI PClIlaieI is to be handled cIIr8c:lIy by the ptfncIpal8, and outside of escrow. 11. ACTION IN INTSRPLEADERThe princlp8la hereto expressly agnt8 that you. al Escrow Holder, have the eb8OIut8 right at YOur election to file an action in Interpleader requiring the principals to answer and Iltlgete their severel claims end rights among thernI8Ivn IIld you ani authorized to deposit wIh the clerk of the court all documents and funds held in thie eecrow. In the event such action ia flied, U. principals 1~~ .'- .,-. ,,-.... ,-,. ~ jointly and severally agree to pay your canc&llation charges and cosls, expenses and reasonable aIIorney's lees whlctl you are required to expend or incur in such interpleader BCtion, the smounttllereof to .be filled and ludgrn.nlltlef8fo~ to be rendered by the court. Upon the fiJlng of such action, you shall thereupon be fully released and discharged from all ob\lg8llons unposed by the tenns of this escrow or otherwise. 12. TERMINATION OF AGENCY OBUGAT1ON If thelll is no action taken on this escrow within six (6) months after the "time Umil date" 8$ set forth in the escrow inStructions or writlen extension theIeof, your agency obligation shaD terminate at your option and .. documents. monills or other items held by you shall be RlIUmed to the parties depositq same. In the event of cancellallon of tills escrow. whether it be at the J8qUeSt of any of the Principals or otheIwise. the fees 811d charges due Fidelity National Title Company - Major Accounts, including expenditures incurred and/or auIhoriled shall be borne equally by the partiea hereto (unlelss otherwise agreed to speclficaly). 13. CONFUC-mo INSlRUCOONS Upon rec:eipt of any confticting instructions. you are to take no action in conneelion with tIIis SScraN untH nOl1-conflicting instructions are received from alloflhe prlncip.. to this escrow (subject to sections 7. 9, 11 and 12 above). 14. RBIIBURSEMENT ATTORNEY FEESIESCROW HOLDER In \he event that a suit Is brought by any party or parties to these esaow Instructions to which the Escrow Holder Is named as a party whlcI1 resulls .. a Judgment in favor of the Escrow Holder and against a principal or principals herein. the principals or principals' agent agree to pay said Esaow Holder aU costs. expenses and reasonable dorney's fees which it may expend or Incur in said suit. the amount thereof to be filled and judgment lherefoIe to be rendered by the court in &aid suit. 15. DEUVERYIRECElPT Delivery to principals as used In the.. instruCllons unless otherwise stated herein Is to be by ll!I9ular mall, and receipt Is detennined to be 72 hours after such mailing. AR documents. balancea and stal8ments due to the undersigned are to be mailed to the addl8llll sbeNm herein. 1&. STATE/FEDERAL CODe NOTlFICA1l0NS According to Federal Law, the Seller. when applicable. wi. be required to complete a sales aGtMly report that wi. be utilized to generate a 1098 statement to the Intemal Rewnue Service. Pursuant to stete Law, prior to the cIolIe of escrow. Buyer wIH provide Escrow Holder wiIh a PrelIminary Ch8nge of Ownership Report. In the event aalel AlPort Is not handed to Esaow Holder for submission to Ihe County in which eubject property is located, upon recording of the Grant Deed. Buyers acknowledge that the appIcabIe fee wi. be assessed by said County and Esaow Holder shall deb. the account of Buyer for same at dose of escrow. Buyer and SeIer herein represent and warrant that they will seek and obtain Independent legal advic:e and counsel rel811ve to their obligations under the "Fcnign Inveetors In Reel Property Ad'. and any oItter applicable federal and/or state lawa regerding same. and will take aD steps necessary In order to comply with such reqliremenls and hereby hold you harm/esll reIaJive to lhelr c:ampIance therewIh. 17. ENCUlllBRANCES EIIcnlw HoIdar Is to ad upon any statements furnished by a lienholder or his agent wIhout liability or 18SpoIIIIibIllIy for the accuracy of such statements. Arrj adlustments necessary becauM of a discrepancy belween the Infonnatlon furnished Esaow Holder and any amounllaler dllennined to be conect ahal be settled between the parties direct and outside of escrow. 18. ENVIRONMENTAL ISSlES FIdeIiIy National Tille Company. Major ~ounts has made no investigation conceming said property as to envlrol1lnenlel/lc>>cc wa&le issues. AIry due diligence required or needed to deliennlne envlrorvnentel impact .. to forms of toxIIlcatton. If applicable, WII be done directly and by principals oulslde of escrow. Fld8Ily NaUonal Title Company - Major Accounts is l8IelIsed of any responslblllly anclJor IlebIltty In connection lherewltt1. 11. USURY ElICfow Holder Is not to be concerned with any qu.wons of usury In any loan or encumbrance involVed in the processing of this escrow and is hereby released of any responsibility or liabllty therefOre, 20. DiSClOSURE ElClow Holder's knowledge of mllttelS affec:tlng the property. provided such facts do not prevent compliance With these Instructions. does not create any liability or duty in addIIIon 10 the8e instructions. 21. CLARIFICATION OF DUTIES FIdeIly National Title Compeny - M8!0r Accounts serves ONLY 81 an Escrow Holder in connection wtth thue illltructlons and cannot give legal advice to any party herIItO. ESCftlW Holder Is not to be held accountable or liebl. for the sufliclency or com:ctness lIlI to foIm. manner of executIort. or validity of any Instrument deposited In this e&CIOW. nor _ to the identity, authority or rQhts of atri peISOIl ..cutIng the same. Escow Hold.... duties hereunder shall be limited to the proper handling of such money and the proper safekeeping of such instrumenta, or olMr doGumenta ..caiVed by Escrow Holder. and for the disposition of same In lICQOIdanc.e with the written lnslNc:ti0m5 8coepted by Escrow HokIIr. The agency and dutles fA EscrllW Holder commence only upon I1IC8ipl of copies of tI'8e Escrow Inatructlons eJllICutId by aU parties. THIS AGREEMENT IN ALL PARTS APPLIES TO, INURES TO THE BENEFIT OF, AND BINDS ALL PARTIES HERETO, THEIR HEIRS, LEGATEES, DEVISEES, ADMINISTRATORS, EXECUTORS. SUCCESSORS AND ASSIGNS, AND WHENEVER THE CONTEXT SO REQUIRES THE MASCUUNE GENDER INCLUDES THE FEMININE AND NEUTER, AND THE SINGUlAR NUMBER INCLUDES THE PLURAL. THESE . .-INSTRUCTlONS-AND ANY. OTHER AMENDMENTS.MA, Y BE exeCUTED IN ANY NUMBER Of COUNTERPARTS, EACH OF WHICH SHALL BE CONSIDERED AS AN ORIGINAL AND BE EFFECTIVE AS SUCH. 131 EXHIBIT "E" FACULTY/STAFF HOUSING PARCEL- GRANT DEED ,,-.. 25 Q:\woIllIoIIIIIIIIIIl c:o....iIilllllODoClO4 LIllI Daa_ ~ 10 _ Lond tom CSlJ ("1402010)01 (6-17~IO).doo , .~ 132 .~ L ,-. ~-. ~ \ RECORDING REQUESTED BY ANOWHEN ~loWI. THIS DEEDAND.lINI.ESS OTHERWISE SIlClWN BElON. MAIL TAXSTATEIlENTTO: N8me SI,_ Addr8sI Qly& SI8l8 Zip Tille Order No. Escrow No. SPACEABDYE THIS LINE FOR RECORDER'S USE Grant Deed THE U1IIDERSIGNED GRANroR. (S) DECLARE (8) DOCUMENTARY TRANSFER TAX IS S unincorporated area City of San BemardInD Parcel No. D COIIIpuII:d on full vaIuc of intCllCSl. or property coaveycd, or Ocomputcd 011 lUll value less value ofliens or encumbnmccs remaining Ii time ofsalc, 8IllI FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged. FONTANA CORNERS 111, LP '. a California limited partnership hereby ORANT(S) 10 The Foundation for California State University, San Bernardino !he following described rea1 JIIOIlBItY in the CIty of San Bernardino. county of San Bernardino . state of California See Legal Description attached hereto as Exhibit "A" and incorporated herein by this reference. FONTANA CORNERS 111, LP. a California limited partnership . Dated STATE OF CAUFORNIA COUNTY OF On By: Its General Partner before me. (hlllll m-t _lDI. aflhaalllc8rl . jllnDI1BIIV epp8IIIIIll who proved to lll8 on the bIIiI or 8IIIIfactory 8VIdenDe to be lhe pIISOIl(.) whole neme(S) .,.. &ub8aIbed III the wIIIIIn inIInIrn8nl and ac:IlnCIWI8d08d to me 1hIt hI/IIlBIIhey ~ the IIlIIr\8 in IlIsIh8rIlheIr 8UIhoriz8d ~). 8IIcI lilt by hiIIhIr#Iteir slgn8ture(a) 011 the InlItnJrMnIthe perICIfl(a). or thlI enUty upon l18helf ofwhid'llhe penIOII(a) ac:Illd. -ad the In8trumenl I ady under PENALlY OF PERJURY IIIlder the I8WI ot the stal8 of . ClllIomI8 thall/le fQregaIog PIIlIPfIh IS tnl8 IIlCI correc:t WI11ESS my h81111 and otIIcial_ Signatunl (TIia-far----. MAIL TAX STATEMENTS TO PARTY SHOWN ON FOlLOWING LINE; If NO PARTY SHOWN! MAIL AS DDtI'.CIlD ABOVE N8mlI S1I8lIl AddIw& OIly &.... 1~~ ~' '- EXIllBIT "F" EDUCATION AND RESEARCH PARCEL - GRANT DEED ,(" 26 Q:\woWolond\lJdanolc-.ida\ll-'" Lod DooI\JllooI ~ lo_lMd _CSU (6-1402010)01 (lio 17~11Il._ '- 1~lI. .. RECORDING REQUESTED B'Y AND WHEl'l RECORDED MAlllllS IlEED NID. utILESS O111ERWISE ",--,. ~ llElOW. MAIl TAX ST...TEMEllTTO: Name S1l'eeI AddJess CIly& SlaIe 1Jp TiUc Order No. Escnlw No. SPACE ABOVE LINE FOR RECORDER'S USE Grant Deed THE UNDERSIGNED GRANTOR (8) DECLARE (S) DOCUMENTARY TRANSFER TAX IS $ uniDc:orporllted uea City of San BematdInO PaR:e1 No. D camputed on 11111 'YlIlue of interest or property ccmvcycd, or o cOlllJllllcd 01\ tun value less value oflicDs or OIIcumbmaces remaining at time of sale. iIlld FOR A V ALUABLE CONSIDERATION, receipt of which is hereby acknowledged, FONTANA CORNERS 111. L.P., a California limited partnership hereby GRANT(S) 10 The State of California for the Benefit of California State University, San Bernardino the following described real property in the CIty of San Bernardino. county of san Bemarolno , state of California See Legal Description attached hereto as Exhibit "A" and incorporated herein by this reference. FONTANA CORNERS 111, L.P. a California limited partnership a D8lcd STATE OF CALIFORNIA COUNTY OF On By: Its General Partner before me. {here insert _ end ... III IhIt omc.r) . pII8OII8lIy eppIIIed who pnMld to me an the bIIi& of lIIIlIsfaclory 8lIidence 10 be the ptII&lIII(l) whole name(S) iIIBle lIUbscdbecI \0 Ihe wIhIn Ina1rum8n1 ancI acICnOWIIdged to me that Il8IIh8IIIl8r 8Jl8ClIled tile S8RIIt in hl8llBlthelr IUthorizIId capllCfty(lH). and lhat by h1llll1erlthlir sigmltunl(s) an the in&tn.InInIthe peISCIft(&). or.. enIIty upon beIl8If of which the JIIIIOIl(I) acI8d. eJl8CUIlId \lie 1nRumenl. I r.ertify under PENAL TV OF PERJURy WIder the laws of lie stete of QaIKamia tI1Illhe.fonIgolnll"Plragraph III \rUe and t.omlct. IMTNESS my hand and oltIclel see! S\gn8lUnI (llIIs_fllralliclll--.1MII MAIL TAX STATEMENTS TO PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY SHOWNyMAIL AS DIREC'I'lDABOVE r-- '"'- NlIme St..-~ CIIy & SIlIle 1~i:i ATT ACHMENT 4 PLANNING COMMISSION ST AFF REPORT CITY OF SAN BERNARDINO-PLANNING DIVISION CASE: AGENDA ITEM: HEARING DATE: WARD: Development Agreement No. 12-01 3 March 28, 2012 5 OWNER/APPLICANT: Inland Communities Corp 650 E. Hospitality Lane Suite 140 San Bernardino, CA 92408 REQUESTILOCATION: A request for recommendation of approval of a development agreement regarding 404 acre University Hills development to implement the University Hills Specific Plan, generally located northwest of the California State University at San Bernardino campus between the northern termini of Campus Parkway and Little Mountain Road. APNs: 0265-011-06,07,08; 0265-021-13; 0265-041-12; 0265-051-09, 12, 13; 0265-061-16. CONSTRAINTS/OVERLA YS: University Hills Specific Plan approved by Resolution 2008-422, November 17,2008. ENVIRONMENTAL FINDINGS: o Not Applicable o Exempt from CEQA Section 15301 - Existing Facilities o No Significant Effects o Potential Effects, Mitigation Measures and Mitigation Monitoring/Reporting Plan IE) EIR for University Hills Specific Plan SCH #2007071155 STAFF RECOMMENDATION: IE) Approval o Conditions o Denial C 0 Continuance to: 136 UH Development Agreement PC Hearing Date: 03.28.12 Page 2 PROJECT DESCRIPTION The proposed development agreement (DA) addresses the State and City required elements of DA's including duration, permitted uses, density, maximum height and size of proposed buildings, provisions for the reservation or dedication of land for public purposes, provisions not permitting protection from future fee increases, provisions for tiered amendment review and provisions for a health and safety exception. Optional conditions, terms, restrictions, and timing requirements including phasing among others are allowed and included. SETTING & SITE CHARACTERISTICS The University Hills Site Plan encompasses 404.3 acres. It allows 980 residential units in the following densities: 14 acres, up to 3.1 u/a, 37 units 10 acres, up to 9 u/a, 70 units 30 acres, up to 17 u/a, 358 units 31 acres, up to 20 u/a, 51.5 units 10 acres, parks/club house 308 acres, open space and roads BACKGROUND . November 1, 2005 Mayor and Common Council adopted the city's General Plan and University District Specific Plan by Resolution 2005-362. . November 17, 2008 Mayor and Common Council approved the Final Subsequent EIR for the University Hills Specific Plan, Tentative Parcel Map 18969 and TTMs 18140 and 18696. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEOA) Utilize certified EIR for University Hills Specific Plan SCH #2007071155. ANALYSIS Over the course of the past year, city staff has met regularly with the developer and his representatives regarding the terms of the proposed Development Agreement. c San Bernardino Municipal Code 19.40 requires a public hearing before the Planning Commission for a recommendation to approve, conditionally approve or disapprove prior to a public hearing for final decision before the Mayor and Common Council. 137 UH Development Agreement PC Hearing Date: 03.28.12 Page 4 FINDINGS OF FACT "- 1. The Development Agreement is consistent with the General Plan and in that changes to The Development Agreement land uses as approved in the University Hills Specific Plan allow densities allowed by the 2005 San Bernardino General Plan. 2. The Development Agreement is consistent with any applicable Specific Plan. The Development Agreement is implementing all requirements of the University Hills Specific Plan, portions of which are attached to the Development Agreement as Exhibits. 3. The Development Agreement is consistent with the Development Code. The Development Agreement does not allow any uses or set standards outside of those allowed by Title 19 of the San Bernardino Municipal Code. 4. The Development Agreement will promote the welfare and public interest of the city The Development Agreement allows for the orderly development of varying densities of development, while maintaining 58% of the site undeveloped and creating ten acres of parks and recreation space. RECOMMENDATION Recommend that the Mayor and Common Council approve Development Agreement No. 12-01 with Exhibits H - K, based upon the findings of fact contained in the staff report. Respectfully Submitter' )1 )()U M. ~argo Wheeler, A.I.C.P. Community Development Director Attachment A Attachment B Attachment C Development Agreement CA. Government Code 65864-65869.5 Exhibits H - K "-"'" '- 138 L,.~ ~UU...;:) u;uv .V..JUV-..-U..JUU7...J) rage 10t5 GOVERNMENT CODE SECTION 65864-65869.5 '-' 65864. The Legislature finds and declares that: (a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. (b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. (c) The lack of public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities, is a serious impediment to the development of new housing. Whenever possible, applicants and local governments may include provisions in agreements whereby applicants are reimbursed over time for financing public facilities. 65865. (a) Any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article. (b) Any city may enter into a development agreement with any person having a legal or equitable interest in real property in unincorporated territory within that city's sphere of influence for the development of the property as provided in this article. However, the agreement shall not become operative unless annexation proceedings annexing the property to the city are completed within the period of time specified by the agreement. If the annexation is not completed within the time specified in the agreement or any extension of the agreement, the agreement is null and void. (c) Every city, county, or city and county, shall, upon request of an applicant, by resolution or ordinance, establish procedures and requirements for the consideration of development agreements upon application by, or on behalf of, the property owner or other person having a legal or equitable interest in the property. (d) A city, county, or city and county may recover from applicants the direct costs associated with adopting a resolution or ordinance to establish procedures and requirements for the consideration of development agreements. (e) For any development agreement entered into on or after January 1, 2004, a city, county, or city and county shall comply with Section 66006 with respect to any fee it receives or cost it recovers pursuant to this article. c 65865.1. Procedures established pursuant to Section 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest http://www.1eginfo.ca.gov/ cgi-bin/ displaycode?se(1391=gov &group=6500 1-66000&file=6... 2/29/2012 L,A ~UUt;:) U;uv .UJou"t-UJOU::1.J) Page 2 of 5 ~, \-. thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement. 65865.2. A development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time. The agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time. /;~. 65865.3. (a) Except as otherwise provided in subdivisions (b) and (c), Section 65868, or Section 65869.5, notwithstanding any other law, if a newly incorporated city or newly annexed area comprises territory that was formerly unincorporated, any development agreement entered into by the county prior to the effective date of the incorporation or annexation shall remain valid for the duration of the agreement, or eight years from the effective date of the incorporation or annexation, whichever is earlier. The holder of the development agreement and the city may agree that the development agreement shall remain valid for more than eight years, provided that the longer period shall not exceed 15 years from the effective date of the incorporation or annexation. The holder of the development agreement and the city shall have the same rights and obligations with respect to each other as if the property had remained in the unincorporated territory of the county. (b) The city may modify or suspend the provisions of the development agreement if the city determines that the failure of the city to do so would place the residents of the territory subject to the development agreement, or the residents of the city, or both, in a condition dangerous to their health or safety, or both. (c) Except as otherwise provided in subdivision (d), this section applies to any development agreement which meets all of the following requirements: (1) The application for the agreement is submitted to the county prior to the date that the first signature was affixed to the petition for incorporation or annexation pursuant to Section 56704 or the adoption of the resolution pursuant to Section 56800, whichever occurs first. (2) The county enters into the agreement with the applicant prior to the date of the election on the question of incorporation or annexation, or, in the case of an annexation without an election pursuant to Section 57075, prior to the date that the conducting authority orders the annexation. ',"-. http://www.leginfo.ca.gov / cgi -bin/displaycode?secti 40=gov &group=6500 1-66000&file=6... 2/29/2012 v~ "-'vu"'.., \5v. .v.Juv~-v.Juv:/....J) t'age J of 5 ,- ,,-,. (3) The annexation proposal is initiated by the city. If the annexation proposal is initiated by a petitioner other than the city, the development agreement is valid unless the city adopts written findings that implementation of the development agreement would create a condition injurious to the health, safety, or welfare of ci ty residents. (d) This section does not apply to any territory subject to a development agreement if that territory is incorporated and the effective date of the incorporation is prior to January 1, 1987. 65865.4. Unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866. ".-,."...{. 65865.5. (a) Notwithstanding any other provision of law, after the amendments required by Sections 65302.9 and 65860.1 have become effective, the legislative body of a city or county within the Sacramento-San Joaquin Valley shall not enter into a development agreement for property that is located within a flood hazard zone unless the city or county finds, based on substantial evidence in the record, one of the following: (1) The facilities of the State Plan of Flood Control or other flood management facilities protect the property to the urban level of flood protection in urban and urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in nonurbanized areas. (2) The city or county has imposed conditions on the development agreement that will protect the property to the urban level of flood protection in urban and urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in nonurbanized areas. (3) The local flood management agency has made adequate progress on the construction of a flood protection system that will result in flood protection equal to or greater than the urban level of flood protection in urban or urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in nonurbanized areas for property located within a flood hazard zone, intended to be protected by the system. For urban and urbanizing areas protected by project levees, the urban level of flood protection shall be achieved by 2025. (b) The effective date of amendments referred to in this section shall be the date upon which the statutes of limitation specified in subdivision (c) of Section 65009 have run or, if the amendments and any associated environmental documents are challenged in court, the validity of the amendments and any associated environmental documents has been upheld in a final decision. (c) This section does not change or diminish existing requirements of local flood plain management laws, ordinances, resolutions, or regulations necessary to local agency participation in the national flood insurance program. "- http://www.1eginfo.ca.gov /cgi-bin/ displaycode?sec141=gov &group=6500 1-66000&file=6... 2/29/2012 v~ ,"-,vu"" U5v v .V.JUV~-V.JUV7..J) .t'age 4 of 5 c 65866. Unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies. 65867. A public hearing on an application for a development agreement shall be held by the planning agency and by the legislative body. Notice of intention to consider adoption of a development agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement. 65867.'5. (a) A development agreement is a legislative act that shall be approved by ordinance and is subject to referendum. (b) A development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan. (c) A development agreement that includes a subdivision, as defined in Section 66473.7, shall not be approved unless the agreement provides that any tentative map prepared for the subdivision will comply with the provisions of Section 66473.7. 65868. A development agreement may be amended, or canceled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Notice of intention to amend or cancel any portion of the agreement shall be given in the manner provided by Section 65867. An amendment to an agreement shall be subject to the provisions of Section 65867.5. l~" \.... 65868.5. No later than 10 days after a city, county, or city and county enters into a development agreement, the clerk of the legislative body shall record with the county recorder a copy of the agreement, which shall describe the land subject thereto. From and after the time of such recordation, the agreement shall impart such notice thereof to all persons as is afforded by the recording laws of this state. The burdens of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in http://www.leginfo.ca.gov /cgi-bin/displaycode?seci42L=goV&group=6500 1-66000&file=6... 2/29/2012 L.~ L-UUC;) u;!,UV .V.JOV-r-UJOU7.J) rage J or ::> interest to the parties to the agreement. /~ ~. 65869. A development agreement shall not be applicable to any development project located in an area for which a local coastal program is required to be prepared and certified pursuant to the requirements of Division 20 (commencing with Section 30000) of the Public Resources Code, unless: (1) the required local coastal program has been certified as required by such provisions prior to the date on which the development agreement is entered into, or (2) in the event that the required local coastal program has not been certified, the California Coastal Commission approves such development agreement by formal commission action. 65869.5. In the event that state or federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, such provisions of the agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. ".-.. \....... http://www.leginfo.ca.gov/cgi-bin/displaycode?seci431=gov&group=6500 1-66000&file=6... 2/29/2012 RECORDING REQUESTED BY: ,,-. AND WHEN RECORDED MAIL TO: L City of San Bernardino Attn: City Manager 300 North "D" Street, 6th Floor San Bernardino, California 92418 (SPACE ABOVE FOR RECORDER'S USE ONLY) ',,-, DEVELOPMENT AGREEMENT SPECmC PLAN NO. 08-02 (UNIVERSITY HILLS) CITY OF SAN BERNARDINO FEBRUARY , 2012 ",-. ~ 144 TABLE OF CONTENTS r--. '- Paee ,-. 1. Project Development Requirements ...... ............. .................... ............. ..................... ......... 3 1.1 Standard of Development.......... .................. ................ .......... ............................ ......... 3 1.2 Vested Provisions; Rules and Regulations.. ............ ......................................... .......... 3 1.3 Updating of Applicable Regulations .......... ........... ...... ..................... ......................... 4 1.4 Fees and Fee Credits.................................................................................................. 5 1.5 Building Permits ...... .................................................................................................. 8 1.6 Processing of Applications; Final Action ................................................................. 8 1.7 Timing of Development ............ ............ ........ .............. ...................................... ......... 9 1.8 Public Services................. ................................................. ......................................... 9 1.9 [Intentionally deleted.] ......................................................................... .................... 10 1.10 Public Financing... .............................................. .............................. .................... 10 2. Status of Project Approvals. .......................... ....... ......... .................. ............ ............. ....... 11 2.1 Term of Approvals ................................................................................................... 11 2.2 Consistency of Land Use Designations.................................................................... 11 3 . Term of Agreement................................................................ ......................................... 11 3.1 Initial Term Extensions ............................................................................................ 11 3.2 Project Completion................................................................................................... 12 4. Binding Effect of Agreement...................... .................. ............ .............. ........................ 12 4.1 Covenant.................................................................................................................. 13 4.2 No Property Interest................................................................................................. 13 5. Assignment...................................................................................................................... 13 5.1 Right of Assignment.................................... ............................................... ............. 13 5.2 Notice Requirement. .......... .............. ........... ........... ... ....................... ............ ............ 13 5.3 Compliance with Project Approvals ....................................................................... 14 5.4 Effect of Assignment; Effect of Default ................................................................. 14 6 . Notices................................................................................................................. .... ........ 14 6 .1 Form of Notice.................................... ....................................................... .............. 14 6.2 Change of Address................... ................................................................... ............. 15 7. Amendment of Agreement...... ............. .......... ................ .......... .............. ......................... 15 7.1 Formal Amendment.................................................................................... .............. 15 7.2 Clarification.............................................................................................................. 15 8. Interpretation and Enforcement of Agreement .............................................................. 16 8.1 Complete Agreement................................................................................... ............ 16 8.2 Severability................................................................................................. ............. 17 8.3 Conflict with State or Federal Laws ....................................................................... 17 8.4 Applicable Law........................................................................................... ............. 17 8.5 Prevailing Party ......................................................................................... .............. 17 8.6 Defense of Agreement .... ....................................... ........... ..................... .................. 17 8.7 Authority of Signatories........................................... ............... ................... ............. 17 8.8 Indemnification ....... ..... .,. ... .............. ...... ..... ............ ....... ... ...... ...... ........................... 17 8. 9 Waiver and Delays....................................................................................... ............ 18 8.10 Third Party Actions............. ......... ................................. ................. ......... ............. 18 r- '-' 145 8.11 Force Maj eure .............................................. .............................................. .......... 18 9. Effect on Property................................................................................................. '" ....... 18 9.1 Estoppel Certificate ......................................... ........... ........................... .................. 18 9.2 Release of Lots from Agreement ................. ............................ ...... .................. ....... 18 10. Periodic Review of Compliance with Agreement ....................................................... 18 1 0.1 Annual Review. ...~....:............. ~~..................... ......................................................... 18 10.2 Contents of Report............................. ............... ................. ...... ......... .... ................ 19 1 0.3 Waiver........................:................................... ............................................... ....... 19 11. Violations..................................................................................................................... 19 11.1 Violation by Property Owner ............................................................................... 19 11.2 Violation by City.................................................................................................. 20 11.3 Legal Enforcement .... .......... ..... ..... .................... ..... ....... ........ ........... ............. ....... 20 11.4 Mortgagee Protection.......... ................. ..... ....... ..... ....... ..... .............. ........... ... ....... 21 12. Relationship of Parties................................................................................................ 22 13. Exhibits............... ......... .......... ........... ....... ................. ......... ....... .... ..... ......... ....... .... ...... 22 14. Adoption of Agreement.... .... ........... ..... .......... .......... ............ .... .... ..... ................... ....... 22 15. Recording of Agreement........... ....... ......... ........ ....... ................ ............... ............. ....... 22 Exhibits '~,...."'" Exhibit "A" - Legal Description of Property Exhibit "B" - Public Facilities Financing Plan Exhibit "e" - Table of Processing Fees Exhibit "D" - Table of Impact Fees Exhibit "E" - Mitigation Monitoring and Reporting Program Exhibit "F" - 5- Y ear Performance Requirement Exhibit "G" - Facilities Maintenance Plan l'f'~' "'- 11 146 DEVELOPMENT AGREEMENT ".- '- THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this _ day of February, 2012, ("Effective Date") by and between (i) the CITY OF SAN BERNARDINO, a municipal corporation organized and existing under the laws of the State of California (the "City"), and (ii) FONTANA CORNERS 111, L.P., a California limited partnership (the "Property Owner"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code. The City and the Property Owner may be referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. The Property Owner is the Owner of a large.property, consisting of approximately four hundred four (404) acres, more particularly described in Exhibit "A" attached hereto (the "Property"). The Property is located in the northerly portion of the City, in close proximity to the campus of California State University, San Bernardino ("CSU"). B. The Property previously was the subject of Resolution No. 93-45, adopted by the City on February 22, 1993, approving General Plan Amendment No. 91-07 and Specific Plan 90-03 and related conditions of approval, and authorizing execution of Development Agreement No. 91-03 with the Property Owner (collectively, the "Prior Approvals"). \,,,,."",.,,, C. Pursuant to the Prior Approvals and the plan of development contained therein, commonly known as Paradise Hills, the Property Owner prepared and filed a proposed map for subdivision.ofthe Property. Subsequently Property Owner withdrew that proposal. D. The Property Owner now proposes to develop the Property as a residential community to be known as University Hills (the "Project"). E. The Property Owner has made application (and intends to make additional applications in the future) to the City for additional discretionary land use approvals, including, but not limited to, a new specific plan (the "Specific Plan"), a new General Plan amendment (the "GPA"), a zone change (the "Zone Change"), one or more subdivision maps (the "Map" or the "Maps") and formation of one or more financing districts. "- F. The Specific Plan, the GP A, the SEIR (Recital J), the MMRP (Recital J) and any other discretionary land use approvals relating to the Project (and the Prior Approvals, to the extent not inconsistent) are incorporated herein by this reference, and collectively comprise the "Project Approvals." Any and all Maps and other future discretionary land use approvals relating to the Project shall become part of 1 147 \..-. the Project Approvals upon receiving approval from the City. The Property Owner desires to develop the Property in accordance with the Project Approvals and this Agreement. The Project consists of development of the Property as contemplated by the Project Approvals and this Agreement, subject to any refinements agreed upon by the Parties. G. Pursuant to the processing of the Project, the Property Owner proposes to enter into this Agreement. Entering into this Agreement is acknowledged to be to the mutual benefit of the Parties. Further, Property Owner and CSU propose to enter into two (2) agreements Gointly, the "CSU Agreements") titled: (i) Agreement Concerning Development of University Hills, and (ii) Agreement to Donate Land. The Agreement Concerning Development of University Hills provides for permanent public access to the Property, and also provides for joint cooperation on the development of certain street intersections and adjoining landscaped areas. The Agreement to Donate Land provides that, upon the occurrence of specified events, Property Owner will (1) convey to CSU approximately 220 acres of open space for educational and research purposes and will include public trails and (2) convey to CSU a planning area within the Property for the construction by CSU of up to 60 dwelling units for use by faculty and staff. The City acknowledges that these agreements (and the land conveyances to CSU) will be of significant benefit to the City and the public. H. The Property Owner has a legal interest in the real property situated in the City which is the subject of this Agreement, and therefore satisfies the statutory requirements to enter into this Agreement. I. In conjunction with the Prior Approvals, City Council Resolution No. 93-45 certified a Final Environmental Impact Report (the "EIR"), adopted findings and a statement of overriding considerations, and adopted Mitigation Monitoring Program as contemplated by the EIR. The City Council certified that the EIR was legally adequate, and that it satisfied the requirements of the California Environmental Quality Act ("CEQA;" California Public Resources Code Section 21000 et seq.), the CEQA Guidelines (California Code of Regulations Section 15000 et seq.) and applicable ordinances and regulations of the City. J. In connection with this Agreement, the City Council reviewed the previously approved EIR and related documents, prepared a Final Subsequent Environmental Impact Report (the "SEIR"), and at a duly called and held public hearing on November 17, 2008, certified that the SEIR is legally adequate. The City Council's certification of the SEIR included its approval of the Mitigation Monitoring and Reporting Program ("MMRP") for the Project. The MMRP is attached hereto as Exhibit "E". K. California Government Code ("Government Code") Sections 65864 et seq. (collectively, the "Development Agreement Law") authorizes the City to enter into binding development agreements with persons having a legal or equitable interest in c 2 148 the 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 development. The City, being a charter city pursuant to the laws of the State of California, has adopted by ordinance Municipal Code Chapter 19.40, by which the City has provided its separate--development -criteria -for -development--agreements. .......This -Agreement is adopted pursuant to the Development Agreement Law and the provisions of the City's Municipal Code Chapter 19.40. L. The Planning Commission, on November 5, 2008, conducted hearings and adopted findings relating to this Agreement, as required by Municipal Code Section 19.40, and recommended that the City Council approve this Agreement. The City Council, on . 2012 by Resolution No. . made all findings and determinations relating to this Agreement which are required by the Development Agreement Law and by Municipal Code Section 19.40, and approved this Agreement by its adoption of Ordinance No. M. The City Council finds that execution of this Agreement and the performance of and compliance with the terms and conditions set forth herein by the Parties: (i) is in the best interests of the City; (ii) will promote the public convenience, general welfare and good land use practices in the City; (iii) will promote preservation and enhancement of land values in the City; (iv) will encourage the development of the Project by providing a reasonable level of certainty to the Property Owner; and (v) will provide for orderly growth and development in a manner consistent with the General Plan and other plans and regulations of the City. NOW, THEREFORE, in consideration of the above Recitals, all of which are expressly incorporated into this Agreement, and the mutual promises and obligations of the Parties set forth herein, the Parties agree as follows: 1. Proiect Development Requirements. 1.1 Standard of Development. The Project shall be developed in accordance with the Project Approvals and this Agreement. During the Term (see Section 3.1) of this Agreement, the permitted uses within the Project, the density and intensity of use, maximum height and size of buildings, other zoning standards, the requirements for reservation or dedication of land for public purposes, the mitigation requirements and all other terms and conditions of development of the Project shall be those set forth in the Project Approvals. c 1.2 Vested Provisions: Rules and Regulations. Property Owner shall have the vested right, to the fullest extent allowed under the Development Agreement Law (Gov. Code Sections 65864 et seq.) and Municipal Code Section 19.40, and except as otherwise expressly provided in this Agreement, to develop the Property in accordance with the provisions of the Specific Plan identified in Recital B, and the terms and provisions in the other Project Approvals, all as in effect as of the Effective Date and the other provisions of 3 149 this Agreement (collectively the "Vested Provisions"). Municipal Code Chapter 19.40 provides, at subsection 2 of Section 19.40.010, that: "Should any apparent discrepancies between the meaning of these documents arise [Chapter 19.40, Section 65864 et seq. of the Government Code, and the Development Agreement], then the documents shall control in construing the development agreement in the following order of priority: A. The plain terms of the development agreement itself, B. The provisions of this Chapter; and C. The provisions of Article 2.5 of the California Government Code, cited above. Pursuant to Government Code Section 65866, and except as otherwise provided in this Agreement, the regulations, rules and official policies of the City governing (i) permitted uses within the Project, (ii) density and intensity of use~ (iii) design~ improvement and construction standards and specifications, (iv) preparation, design, conditions and approval of tentative and fmal subdivision maps and parcel maps, and (v) all other terms and conditions of development of the Project shall be those regulations, rules and official policies which are in effect on the Effective Date of the resolution approving this Agreement, as modified and/or supplemented by the Specific Plan (the "Applicable Regulations"). Other ordinances~ regulations and official policies of the City which are adopted thereafter may be applicable to the Project, to the extent that they are not in conflict with the Applicable Regulations. In accordance with the provisions of Government Code Section 66452.6, all tentative maps, and all permits and other approvals, shall be extended, from time to time in increments of not less than 36 month periods, pursuant to application by Property Owner, consistent with the Term of this Agreement. In light of this Agreement~ the ten (10) year limitation in Section 66452.6 shall not apply. The number of phased final maps that may be filed shall be determined by the City's advisory agency at the time of approval or conditional approval of a tentative map. Such tentative and final maps shall comply with State and Federa11aws, but may be exempted from certain regulations and requirements which do not threaten the public health, safety and welfare. The Vested Provisions may be modified only by the City as it determines to address a compelling public necessity regarding health and safety that cannot reasonably be addressed by other means or to comply with any later adopted federal or state law or regulation. [Note: All references in this Agreement to "map" or "maps," ''tentative map" or ''tentative maps," whether capitalized or lower case, shall, unless specifically designated to the contrary, mean and refer to tentative subdivision maps, final subdivision maps, and tentative parcel maps and final parcel maps, all as defined in, and regulated by, California Government Code, Sections 66410 et seq (collectively, the "Subdivision Map Act" or the "Map Act."] 1.3 Updating of Applicable Re~ations. The foregoing notwithstanding, the Parties recognize that planning and design considerations are constantly evolving and being modernized, and that development of the Project may from time to time require updating of City regulations and standards in order to achieve the most desirable outcomes \.-. 4 150 for the City from the Project. Accordingly, the City agrees that it shall diligently and in good faith review and process to final action any proposals made by the Property Owner for such updating of City regulations and standards. _u _J .1. Fees ~(t Fee_ Cred!ts. _ Th~_Partie_s _re(;()~~!hat.Je~s wh!~~may be imposed by the City ("City Fees") upon the Project fall within two categories: (i) fees for processing applications for City actions or approvals ("Processing Fees"); and (ii) fees or other monetary exactions which are established or contemplated under City ordinances or resolutions in effect as of the effective date of the ordinance approving this Agreement and which are intended to defray the costs of public facilities or other amenities related to development projects (e.g., parks, streets and traffic controls) ("Impact Fees"). i. Processing Fees. The City may charge Processing Fees against the Project based. upon the lesser of (A) the fees applicable at the time of the Property Owner's application for City action or approval, or (B) the fees applicable as of the Effective Date of approval of this Agreement by the City, in either case subject to the limitations in Paragraph 1A.Hi below. A list of the categories and amounts of Processing Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit "C". ii. Impact Fees. Attached as Exhibit D is the fee schedule ("University Hills Fee Schedule") with categories as previously approved by the City for the Paradise Hills Project. Also attached as Exhibit D is the City's current fee schedule ("Current Fee Schedule"). For the first 504 single family residential building permits issued by the City, City shall use and assess impact fees consistent with the Paradise Hills Fee Schedule. Commencing with the 505th single family residential building permit issued by the City, City shall use the Current Fee Schedule. The Impact Fees set forth in the Current Fee Schedule shall remain unchanged for the first ten (10) years after the Effective Date. Thereafter, the Impact Fees set forth in the Current Fee Schedule shall adjust upward by 2% per year. The Property Owner may defer payment of Impact Fees related to any structure until the time of City's release of utility meters or a period of 18 months from the time building permits were issued, whichever occurs first (Le., pro rata payment as to each applicable structure as such structure has meters released). For any public facilities constructed by Property Owner which are included in any current Impact Fee list, such fees shall be either credited in lieu by City or if previously paid, then reimbursed to Property Owner. The amount of the credit will be limited to the amount of cost estimated for the improvements as identified in the associated Fee Study regardless of the actual cost. The amount of the credit shall not exceed the amount of the respective fee being credited. In the event that only a portion of a facility identified in the Fee Study is constructed, the credit amount will be a prorated amount that reflects the appropriate portion of the estimated cost of the facility as identified in the Fee Study as determined by the Director of Public Works. A list of the categories and amounts of Impact Fees in effect as of the date of approval of this Agreement by the City is attached hereto as Exhibit "D". /f"'i>~~ lll. Fee Categories. The City shall not impose upon the Project any categories of fees or other monetary exactions which are not included within (A) the \....,.. 5 151 Processing Fees as those categories exist as if the date of this Agreement, and (B) the Impact Fees as those categories existed as of the date of adoption of the Project Approvals, ""- unless required by state or federal law or regulations. iv. Mitigation of Impacts. The Parties anticipate that, in addition to payingyariousJeeS-1o-the-City,-the--Property .-- Owner--will- develop --various public improvements as components of the Project, or in satisfaction of conditions of approval of the Project. To the extent that the Property Owner develops improvements which mitigate the impacts of the Project upon public facilities or infrastructure that are identified in a Fee Study associated with an Impact Fee, or the Property Owner secures such improvement in a manner reasonably acceptable to the City, the Property Owner shall be entitled to credits against any such Impact Fees in an amount equivalent to the estimated cost for such improvement as identified in the Fee Study as of the date that any such facility or other item of infrastructure is conveyed to and accepted by the City. As to any category of such public facilities or infrastructure in which the Property Owner develops or secures the development of all such public improvements required to serve the Project, the Property Owner shall be entirely exempt from that category of Impact Fees. In particular, in recognition of: (A) The significant permanent public open space, improved parkland and public trails provided for in the Specific Plan. (B) Provided, however, that in the event that, at the time of the first closing of an escrow for the sale and conveyance of each Lot improved with a residential structure within a final approved and recorded subdivision map "Map" within the Project, one or more of the public facilities or infrastructures which have been made conditions in such Map, has not been completed anq for which construction has not been bonded, then Property Owner shall pay the pro-rata Impact Fee due on each such closing for such public facility or infrastructure required as a condition for that Map. All such payments shall be held by City in a separate account until the earlier to occur of: (i) Property Owner's completion of such public facility or infrastructure or the bonding thereof, or (ii) City has issued 500 building permits. If the action in (i) above has occurred, then City shall refund to Property Owner all previously paid Impact Fees for such public facility or infrastructure, but if that activity has not occurred by the time set forth in (ii), then City shall be free to use those Impact Fees for the construction of such public facility or infrastructure, and Property Owner shall continue thereafter to pay the pro-rata Impact Fees for such public facility or infrastructure for the balance of first escrow closings for Lots in that Map. (C) In lieu of any park fee otherwise, required by the City to be paid by Property Owner in connection with the approval of a tentative or final map pursuant to local ordinance or Government Code Section 66477, Property Owner may contribute land for, or construction of, or both for any park site and improvelllents so required, and Property Owner shall receive full credit forthe value thereof. 6 152 (D) The sewer lift station required to service a portion of the ~,- Project shall be acquired by the City (or a sub-agency thereof) through financing provided .,,- by either a community facilities district or an assessment district (see Section 1.10) and shall be maintained by the City (or a sub-agency thereof) through a landscape maintenance district or similar assessment district. v. Public Improvements: Reimbursements. It is understood that during Property Owner's development and construction of the Project, Property Owner likely will design, construct and/or install public improvements or facilities (collectively, "Facilities") which benefit other development projects or properties ("Benefited Properties") or the public in general in addition to the Project, including (i) those Facilities for which Property Owner would otherwise be charged an Impact Fee, and (ii) those Facilities which are included in the City's Capital Improvement Program e4CIP"). Included by way of example as Facilities are: (i) the extension of Campus Parkway from its current easterly terminus which is an improvement called for in the City's General Plan, for the benefit of CSU and the Public, and (ii) any other improvements to be constructed at both the intersection of Northpark Boulevard and Campus Parkway and the intersection of Little Mountain Road and East Campus Circle, including all traffic signalization systems. Property Owner shall be entitled to reimbursement and/or waiver of Impact Fees, as provided below, for such Facilities, based on the following methods, and subject to the following limitations: (A) For Facilities which are included in the City's adopted CIP budget. Property Owner will receive a reduction (or credit) in the ImpactFee(s) specifically applicable to that Facility, such reduction to be equal to the amount budgeted ("CIP Budget") by the City for such completed Facilities; and then (B) To the extent the reduction of Impact Fee(s) owed by Property Owner and the funds, if any, held in the CIP for that Facility and disbursed to Property Owner are insufficient to account for the full amount of the CIP Budget for such Facilities, then City shall enter into a reimbursement agreement ("City Reimbursement Agreement") for a term of not less than five (5) years and not greater than ten (10) years with the Property Owner so that future funds from such Reimbursement Agreement(s) and from other funding sources will flow into the CIP and then be disbursed to Property Owner. vi. Maintenance Responsibilities. The Project Approvals include requirements for the construction by Property Owner, from time to time, of certain infrastructure, both on-site to the Property and off-site. The schedule of such infrastructure improvements, including a plan identifying their locations and a matrix of terms for completion of the improvements will be conveyed for maintenance is attached as Exhibit "G." The city's maintenance for items which are outside it's normal responsibility shall be funded partially or wholly through a financing method such as an LMD, CFD, IFD, CSA or similar method. Examples include the Sewer Lift Station, the maintenance of slopes or street lights. ........... 7 153 c ~ '-' vii. Attached Multifamilv Restriction. For purposes of this provision, the portion of the Property upon which the Project will be located (sometimes referred to as the "Project Site)," shall be divided into three (3) areas: "West Area," "Central Area," and "East Area." The West Area shall consist of Planning Area 1 through Planning Area 7, inclusive, and Planning Area 10. The Central Area shall consist of Planning :Area--1---tbrough~g-:Area-9;-inclusive,Planning - AreaH through-Planning Area 15, inclusive, and Planning Area 21 and Planning Area 22. The East Area shall consist of Planning Area 16 through Planning Area 20, inclusive. Prior to that date when one single family detached subdivision within the West Area, Central Area or East Area has (A) completed (1) at least 26 residential units and (2) at least one park ofa minimum ~ acre size, and (B) the City has completed its fmal inspection, the City shall not be required to issue any building permits for attached multifamily units in that same West Area, Central Area or East Area (other than for senior restricted products pursuant to Civil Code Section 51.3, affordable housing pursuant to applicable provisions at Sections 65580 et seq. and elsewhere in the California Government Code, or student/faculty housing for the Faculty/Staff Housing Parcel (PA 16), each of which is exempt from this restriction). 1.5 Building Permits. The Property Owner shall have the right to obtain building permits necessary for construction of the maximum number of dwelling units and other structures permitted by the Project Approvals, consistent with the other requirements and conditions in this Section 1. 1.6 Processing of Applications: Final Action. The Parties recognize that there are additional approvals required by the Property Owner from the City in connection with carrying out the Project pursuant to the Project Approvals, including but not limited to one or more Maps. During the term of this Agreement, the Property Owner shall have a legally vested right, subject to the proper exercise of discretion (limited by law and Property Owner's vested rights) by the Planning Commission, the Mayor and Common Council, and such other boards and commissions of the City of San Bernardino as required by the law thereof and applicable thereto, to obtain such additional approvals and to carry out the Project in accordance therewith. Any tentative subdivision map prepared for the Project shall, in accordance with Government Code Section 65867.5, comply with the provisions of Government Code Section 66473.7 and shall be extended, from time to time as required, pursuant the Government Code Section 66452.6. i. The City shall diligently and in good faith process in as expeditious a manner as reasonably 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. In no event shall such processing exceed the time periods set forth in any applicable state laws and local ordinances or regulations. The foregoing requirements are subject to the Property Owner's applications for such additional approvals being in proper form for submittal and processing, including all required documents, information 8 154 I1B tHorn t ~u __._ w _ ;lJ;_:,....~,,\lIl.. j ~_ __ ~-_~.!..r'.F"~:w;-"J!,' ,'-' and fees, based on the City's generally applicable standards in effect at the time of submittal. '- ii. The Project shall be exempt from any moratorium or other restriction on the acceptance, processing or approval of development-related applications and/or of issuanceofdevelopment-related-permits,-except-asotherwise-required- by state or federal law. The timing of acceptance, processing and approval of such applications and the issuance of such permits shall not be affected by any limitation imposed after the date of approval of this Agreement upon the number .of lots or permits which may be approved by the City, including limitations pertaining to particular time periods. Any conditions or requirements imposed by the City in connection with any such approvals or permits shall not exceed those typically imposed by the City in connection with similar approvals for other development projects in the City. '- ~-~.......,., lll. In connection with City's commitment to expedited processing of entitlements, maps and plans, the City shall, with the concurrence of Property Owner as to the cost, engage consultants or assign City staff for the purpose of coordinating, facilitating, expediting and/or reviewing subsequent applications by the Property Owner to the City for additional approvals and permits related to the Project. The Property Owner shall bear the costs of compensation of such specially assigned consultants and staff and any other City expenses associated with such persons, except as otherwise provided herein. The consultants and staff assigned to the Project shall at all times be persons having a level of training and experience commensurate with the size and complexity of the Project and the diversity of further approvals and permits required for the Project. 1.7 Timing: of Development. The Parties acknowledge that development of the Project will be affected by numerous factors outside the control of the Property Owner, e.g., general economic conditions, interest rates and market demand. Accordingly, the Parties hereby acknowledge and agree that the Property Owner may develop the Project in such order and at such rate and times as are appropriate within the Property Owner's business judgment, subject to compliance by the Property Owner with the Project Approvals and such other conditions and requirements imposed by the City and not in conflict with this Agreement. In regard to the timing for construction of, or the bonding for the COnstruction of, the facilities identified in sub parts (B) and (C) of Section 1.4 (iv), City shall not be obligated to issue the SOOth building permit for construction of a residential structure within - the Project until Property Owner has either commenced construction of those facilities or bonded for their construction. All Impact Fees paid by Property Owner for those facilities identified in (B) and (C) of Section 1.4 (iv), up to the SOOth building permit, shall be held by the City in a separate account, and shall be refunded to Property Owner upon commencement by Property Owner of construction of those facilities, or upon the posting of bond( s) for construction thereof. 1.8 Public Services. i. Following satisfaction by the Property Owner of the requirem.ents to obtain the necessary permits to carry out each phase of the Project, in accordance with the Project Approvals, the City shall provide to the Project all municipal services required to carry out the Project (including but not limited to services and/or facilities toward which the ",-.. \....,. 9 155 Property Owner has paid Impact Fees) which are provided by the City to other similar ,,'- situated property owners, at a cost no higher basis than is charged to such other property \..." owners, provided that the Property Owner complies with all requirements of the Project Approvals pertaining to construction and/or financing of improvements related to such services, and further provided that there are no physical impediments which make it impossible fur.the_City.to..pmvide_alLyparticular sendceto-the Projectas.determined by the City in the exercise of its discretion. ii. The City recognizes the importance to the Project of extending public transit services to the Project site. The City shall use its best good faith efforts to secure such service. 1.9 [Intentionally deleted.] 1.10 Public Financing. i. The City shall cooperate with the Property Owner in making available means of public financing for acquisition and maintenance of some or all of the public facilities and/or services required to be constructed or provided in connection with the Project and Impact Fees required to be paid in connection with the Project, pursuant to the Project Approvals. Upon application by the Owner, the City shall initiate proceedings for the establishment of one or more public facilities districts, community facilities districts, landscape maintenance districts or other similar financing mechanisms, or, alternatively, shall initiate proceedings regarding participation in one or more such financing mechanisms established by another public agency. The City's obligations in this regard shall be subject to and consistent with the City's ordinances and policies, regarding use of public financing, as well as any applicable provisions of state law, and shall be consistent with the Public Facilities Financing Plan attached hereto as Exhibit "B". ii. In establishing or participating in any special financing district other than a community facilities district, the City shall, to the greatest extent feasible, include in such district all property which will receive any identifiable benefit from the facilities and/or services to be provided or financed thereby. To the extent that it is infeasible to include any such benefited property in a district, the City shall take all reasonable steps to ensure that the Owner or developer of such property is required to enter into a reimbursement agreement with the Property Owner, whereby the Property Owner will recover from such other owner or developer a pro rata share of the cost of the facilities and/or services financed by the district. c lll. The Property Owner acknowledges that provision of public financing, as well as other forms of financial assistance which the City may provide to the Project, may cause the Project or portions thereof to become subject to wage payment and contract bidding requirements which are not otherwise applicable to private development projects, and that the City makes no representations as to the likelihood of such requirements becoming applicable to the Project. Property Owner agrees to indemnify, defend and hold City harmless from any claim made regarding the failure to pay prevailing wages (as required by Section 1771 of the California Labor Code) for any public work (as defined in Section 1720 of the Labor Code) constructed by it on the Project. 10 156 ,-. \- 2. Status of Protect Aoprovals. 2.1 Term of Ap,provals. The Project Approvals (including tentative subdivision maps) shall remain valid and in effect for the entire Term of this Agreement, and .. - --The City. shall take-iio action to rescmd, revise or otherwise modify the Project Approvals, except at the request of or with the consent of the Property Owner, or as otherwise required by law. 2.2 Consistency of Land Use Desimations. The Parties recognize the importance of maintaining the planning and design integrity of the Project and of ensuring that there is compatibility between those features of the Project and the surrounding community to the greatest extent feasible. Accordingly, the City shall not modify any land use designation outside the Project boundaries in such a way as to preclude or interfere with all or any part of the Project without proper notice of such proposed modification to the Property Owner. 3. Term of Agreement. 3.1 Initial Term: Extensions. The term ("Term") of this Agreement shall commence on the Effective Date and shall, subject to the provision below in 3.1.1, extend for an initial period of twenty (20) years thereafter ("Expiration Date"). 3.1.1 Completion of Certain Plans and Imorovements. Pursuant to the "5 Year Performance Requirement" plan, more particularly described in Exhibit "F," within the first five (5) years after the Effective Date, off-site rights-of-way must have been acquired; the "deemed complete" construction plans for the backbone infrastructure, including Campus Parkway and Little Mountain, with adjacent improvements shall be submitted; and the "deemed complete" plans for the first phase of single family detached structures with an associated park, shall have been submitted to the City. 3.1.2 First Extension. Subject to the proviso that the last annual review perfonned by the City prior to the Expiration Date, pursuant to Section 10 below, has determined that the Property Owner is in good-faith compliance with the tenns of this Agreement, the Expiration Date shall automatically be extended for an additional period of five (5) years ("First Extension"). 3.1.3 Second Extension. Subject to the proviso that the last annual review perfonned by the City prior to the expiration of the First Extension, pursuant to this Section 3.1, determines that the Property Owner is in good-faith compliance with the terms of this Agreement, then the Expiration Date shall automatically be extended for an additional period of five (5) years ("Second Extension"). c 3.1.4 Propertv Owner Response: Special Circumstances. In the event City has concluded, either in the last annual review for the First Extension or for the Second Extension, that Property Owner is not in good-faith compliance with the tenns of this Agreement, City shall give Property Owner adequate written notice thereof (not less than 30 days notice) and Property Owner shall be entitled to adequate opportunity to advise the City 11 157 of special circumstances which should be considered in any proposal to terminate this ;r- Agreement. Such special circumstances might include, by way of example, the existence of '"-, public or private funding which relies on completion of the Project, commitments made to other public agencies or to the DRE, commitments made to CSU, and commitments made to purchasers of dwellings within the Project. 3.2 Proiect Completion. If not already terminated by reason of any other provision hereof, this Agreement shall automatically terminate upon the occurrence of all of the following: (i) total build-out of the Project pursuant to the Project Approvals and any amendments thereto; (ii) the issuance of all occupancy permits for improvements on the Property; (Hi) acceptance by the City of all dedications of public rights-of-way and public improvements; (iv) documented transfer and acceptance for the purposes intended of all parts of the Project to be transferred to third party entities per the Project Approvals; specific reference is hereby made to transfers to be made to California State University San Bernardino for purposes' of open space and for faculty housing and ownership of the club house and pool to the master homeowner's association; (v) Completion and recording as a deed restriction and a covenant running with the land of conditions, covenants, and restrictions (CC&R's) applicable to all single-family and multi-family residences in the Project; such CC&R's shall be submitted to the City for approval prior to recordation and shall include a provision that the City may, but shall not have the obligation to, enforce any provision contained therein and shall be entitled to recovery of its costs; the CC&R's shall expressly state that each lender, upon default of the property owner shall, upon taking possession of the property, or when notified by the City or any holder of a right under the CC&R's that the property has been abandoned by the property owner, whichever notice occurs earlier, shall be bound by all covenants thereof with respect to the maintenance and the payment of any fees or association dues applicable to the property; and (vi) establishment of one or more home owner's association ("Association(s)") or other entities for the collection of costs of maintenance of the non-public recreational facilities and lands of the Project. There shall be a master association which extends to all residential properties, single-family and multi-family in the Project. There may be established such lesser associations as deemed appropriate by the Property Owner. The by-laws of the association(s) shall be submitted for approval by the City before recordation or filing with the appropriate authorities of the State. The by-laws and rules of such association shall be subject to the conditions respecting the City as set forth above for CC&R's. Where all such conditions have been satisfied with respect to any phase of the Project, consisting of one or more Planning Areas designated in the Specific Plan, then this Agreement shall continue to apply to that phase until occurrence of the above-described conditions for the entire Project, except upon written agreement of the Property Owner and the City. As used herein, "total build-out" shall mean the completion of all construction in the Project, of all buildings, structures, infrastructure, improvements, landscaping and associated amenities contemplated or permitted by the Specific Plan, all other infrastructure required by the Project, and performance by the Property Owner and the City of all of their respective obligations hereunder. 4.. Binding Effect of Agreement. "-' 12 158 4.1 Covenant. This Agreement shall bind, and inure to the benefit of, the .,-.. respective Parties and their successors in interest, including their heirs, representatives, ~ assigns, partners and investors, and all other persons and entities acquiring any rights or interests in the Property or any portion thereof, whether by operation of law or in any other manner whatsoever. All of the provisions of this Agreement shall be enforceable as _--equitable servitudes and constitute cmzelWlts----mJ.miag-with--tbe-land-pumumt-tG--Seetions 1460 et seq. of the California Civil Code. 4.2 No Propertv Interest. Nothing herein shall be construed as a dedication or transfer of any right or interest in, or as creating a lien with respect to, title to the Property. 5. Assignment. 5.1 Right of Assignment. The Property Owner may assign its rights and obligations hereunder to any other person or entity ("Assignee"), at any time during the term of this Agreement, provided that: (i) (y) such assignment shall occur in connection with sale, hypothecation or other transfer of a legal or equitable interest in the Property or a portion thereof, including any foreclosure of a mortgage or deed of trust or a deed in lieu of foreclosure, or in connection with formation of a new entity which is the assignee and in which the Property Owner is a partner, member or other form of co-owner, or (z) such assignment results from the formation, by Property Owner, of a new legal entity, in which Property Owner has an interest, which will own all or a portion of the Property; and (ii) the assignee demonstrates the following, to the reasonable satisfaction of the City Manager: (a) "",,,. the ability to perform or secure any public improvement obligations required by the City in connection with the Project phase or other interest being transferred, as identified in the conditions of approval of the applicable subdivision map or elsewhere in the Project Approvals; (b) the financial capabilities to meet the obligations of this Agreement as they relate to that portion of the Project assigned to Assignee; and (c) its expertise in managing projects similar in size to the Project phase or other interest being assigned. The City shall give the Property Owner written notice of its satisfaction or dissatisfaction with the proposed Assignee within thirty (30) calendar days of receipt by the City of the information the City requires pursuant to this Section. The City's failure to timely communicate to Property Owner its approval or disapproval shall result in City being deemed to have approved. The City shall, to the extent permitted by law, treat all such information as confidential and proprietary, to be made available solely to City officials and staff required to review it in order to carry out the purposes of this paragraph. 5.2 Notice Requirement. The Property Owner shall give the City notice of any such assignment, and the Assignee shall provide the City with notice acknOWledging its acceptance of its obligations hereunder as a successor in interest to the Property Owner. Upon such assignment, the acceptance thereof by the Assignee and provision of the required notices to the City by both the Property Owner and the Assignee, the Property Owner shall be relieved of its rights and obligations hereunder to the extent that such rights and obligations have been specifically transferred to and accepted by the Assignee. Only ,'- .~ 13 159 t. 11..."I""'~',",*,,*~" :.._: -r!'-.~' .'_ ',"n. c... ~.. ',' _:'~:IIf~:_.. "J'<#'"",~,,~,=,,~,'f"""'W~_+""";'r',~}<I4.,;'w,;~--'~"-'L+'-""'~ upon compliance with all of conditions set forth in Sections 5.1, 5.2 and 5.4 shall there be C an assignment hereunder (the" Assignment"). 5.3 Compliance with Protect Apj>rovals. Each Assignee acquiring all or any portion of the Property, and thus becoming an Assignee of the rights and obligations in ---uthis--Agreement to the extent of such preperty acquisiti~all be entitled t-o each and all of the rights, and be subject to each and all of the conditions and obligations, set forth in, and established by, the Project Approvals. Subsequent to an Assignment under this Section 5.2, all references in this Agreement to "Property Owner" shall mean and refer, instead, to the Assignee as such references pertain to a portion of the Project acquired by the Assignee. 5.4 Effect of AssilDlIllent: Effect of Default. Upon Assignment and approval of that Assignment as provided in Section 5.1, such Assignee shall be entitled to all of the rights and be subject to all of the obligations as set forth in this Agreement, as such rights and obligations apply specifically, either wholly or pro-rata, to that portion of the Project to which Assignee has acquired an interest as the result of such Assignment. Such rights and obligations shall include, by way of example only, the obligations concerning Impact Fees and the rights concerning waivers and refunds, each and all as they apply to that portion of the Project so assigned. Any default by the Property Owner in the terms or conditions of this Agreement or in the Project Approvals, existing at the time of assignment of any of its rights and obligations hereunder, shall remain the obligation of the Property Owner, unless the Assignee expressly accepts such obligation and the City expressly approves the assignment of such obligation. Any default by the Assignee in the '''"- terms or conditions of this Agreement or in the Project Approvals, occurring after the time of assignment of any rights and obligations of the Property Owner to the Assignee, shall be solely the responsibility of that Assignee, and shall not be deemed to be a default by either the Property Owner or any other Assignee and shall not affect the rights occuning to any other portion of the Property pursuant to this Agreement or the Project Approvals. 6. Notices. 6.1 Form of Notice. All notices between the City and either the Property Owner or an approved Assignee given pursuant to the provisions of this Agreement, shall be in writing and shall be given by personal delivery, facsimile or mail. City shall have no notice obligation to any party otherwise bound to this Agreement pursuant to Section 4.1 above except as specifically set forth herein or as otherwise agreed in writing. Notice by personal delivery or facsimile shall be deemed effective upon the delivery of such notice to the Party for whom it is intended at the address set forth below (or, in the case of an Assignee, at the address specified by such Assignee in a written notice to the City). Notice by mail shall be deemed effective two (2) business days after depositing such notice, addressed as set forth below, properly sealed, postage prepaid, registered or certified, return receipt requested, with the United Stated Postal Service, regardless of when the notice is actually received. The addresses to be used for purposes of notice shall be: To City: City of San Bernardino Attn: City Manager c 14 160 , Ul.tlI;! HI 1_ U.l ,1;1. - ~:~_iiIf IJj;' ~ :,,,,,,,,_c 300 N. "D" Street, 3rdFloor San Bernardino, CA 92418 Facsimile: (909) 384-5080 With a copy to: City Attorney City of San Bernardino 300 "D" Street, 6th Floor San Bernardino, CA 92418 Facsimile: (909) 384-5238 To Property Owner: Inland Communities Corp. Attn: Jim Ahmad, President 7536 Lolina Lane Los Angeles, CA 90046 Facsimile: (323) 874-8800 With a copy to: William C. Holzwarth, Esq. Dzida, Carey & Steinman 3 Park Plaza, Suite 750 Irvine, CA 92614 Facsimile: (949) 399-0361 ,..~>, 6.2 Change of Address. Any Party may change the address to which notices are to be sent at any time by giving written notice of such change in the manner provided above. 7. Amendment of Agreement. 7.1 Formal Amendment. This Agreement, including the term hereof, may be amended from time to time by mutual consent of the Parties, in accordance with the provisions of Municipal Code 19.40 and Government Code Section 65868. 7.2 Clarification. The foregoing notwithstanding, the Parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. If and when the Parties fmd that changes or adjustments are necessary or appropriate, which changes do not necessitate a formal amendment of the Agreement as determined by City in the exercise of its discretion, they shall, unless otherwise required herein or by law, effectuate the changes or adjustments as follows: 7.2.1 Community Devlopment Director Authority. subject to appeal ,,-. permitted bv the Municipal Code shall apply to the following requests for change or \....... modification: 15 161 <_____'"_~._iI"', ~ .41111......_1..T. "'_ :-._"J;-~l![T- ~. 1II,.';\'"$ . .4. }All.. ~~~_~",_."""",,,,~; <" ,,-. (a) Approval of minor site plan revisions; (b) Changes in Project infrastructures; (c) Producttypes, (d) Annual review and approval of the Mitigation Monitoring and Reporting Program; (e) Minor revisions to Design Guidelines; (f) Density transfer between Planning Areas without exceeding to top number of units allowed by the approved Specific Plan. 7.2.2 Planning Commission Authority. subiect to apneal nermitted bv Municipal Code shall apply to the following requests for change or modification: (a) Change in total number of proposed Units; (b) Approval of major site plan revisions; (c) Major revisions to Design Guidelines; (d) Minor revisions to Land Use Plan when uses could be considered accessory to approved uses; and (e) Increase/decrease in number of lots. 7.2.3 City Council Authority shall apply to the following requests for change or modification: (a) Alteration of the permitted uses of the Property; (b) Increase in the intensity of use or the number of lots; and (c) Deletion of a requirement for the reservation or dedication of land for public purposes except for minor boundary adjustments approved by the City Planning and Building Services Department. 8. Inter;pretation and Enforcement of Agreement. 8.1 Complete Agreement. This Agreement represents the complete understanding between the Parties, and supersedes all prior agreements, discussions and negotiations relating to the subject matter hereof. No amendment, modification or ,_. "'-' 16 162 - ....",.,..""."''''..,-!<;,.......'''.''.,+'''M ...;. ..L ~:W_ '_.1."_ .~..'. ,,_li,'!!lI~"_: tIJ;,' 1<< ur 'J ,'OM .]l!;.~ ',1.. '.r '~l.'.._:.... ~ .."....h~.~.~"....U ".,_".--"'.....,h,$'~'".\>,"_-. ,',0_' -If"'_ .. :'L. .. "J!W.lI'..H_--'-,""'~ '-.;.' ,..- '- cancellation of this Agreement shall be valid unless in writing and executed by the Parties, other than pursuant to Section 11 below. 8.2 Severability. If any provision of this Agreement is determined to be invalid or unenforceable, the remainder of the Agreement shall not be affected thereby and --shall-remain in full force and effeet,-unless---sueb--invalitlation-t"enders---any-r-emaining provisions impossible or impractical to enforce. 8.3 Conflict with State or Federal Laws. In the event that any state or federal laws or regulations, enacted after the effective date of this Agreement, prevent or preclude compliance by either Party with any provisions hereof, such provisions shall be modified or suspended to the extent necessary to comply with such state or federal laws or regulations. 8.4 Apolicable Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of California and any applicable laws of the United States of America. 8.5 Prevailing Party. In the event of any action or proceeding brought by either Party against the other to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover reasonable costs and expenses, including attorneys' fees, incurred in connection therewith, including cost of City Attorney and staff. 8.6 Defense of Aszreement. In the event of any action or proceeding brought by a third party, whether a private or governmental person 'or entity, challenging the validity of this Agreement or any provisions hereof, the City shall actively defend against any such action or proceeding, including taking all reasonable measures to protect the enforceability of the Agreement. The Property Owner shall pay all actual, reasonable legal expenses associated with such defense. The Parties shall cooperate in defending against any such challenge. The City shall consult regularly with the Property Owner regarding such defense and shall notify the Property Owner of any significant developments relating to the action or proceeding. During the entire course of any such challenge, including any review up to a court of final jurisdiction, this Agreement shall remain in full force and effect. 8.7 Authority of Signatories. The Parties represent and warrant that the persons signing this Agreement on their behalf have full authority to bind the respective Parties. 8.8 Indemnification. The Property Owner agrees to and shall defend, indemnify and hold harmless the City and its officers, employees, agents and contractors, against any and all claims, damages, awards, actions or causes of action and expenses (including, but not limited to, attorneys' fees and costs of litigation) to which the City and its officers, employees, agents and contractors may be subjected by reason of the City's approval of this Agreement, or any work done or omission made by the Property Owner ;-- \.-. 17 163 ,...... -~_.o.._.,.,"'""'..'._"...,.."""""...."''''If_..:._.,,.~ iI!! ..J.j....U.L..Wn>I..,.. -lfK-l..I!'o\' :!lI.,U_ ...._~.~_....Il! ~'Jli.:!:I'..-'.. --n,. '-"_'\1ilII!"~"~"~'." :- and its agents, officers or employees, in connection with, arising out of or resulting from the approval or performance of this Agreement. \........ 8.9 Waiver and Delays. Failure by either Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or failure by . eitherP-8rty-tG--eK<<-eise its rights Up61HHlefauk-by-the-ather-Party, shaH--not--eonstitute a waiver of any right to demand strict performance by such other Party in the future. 8.10 Third Party Actions. Nonperformance by either Party shall not be excused because of a failure of a third person, except as specifically provided herein. 8.11 Force Maieure. Neither Party shall be deemed to be in default for 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 or other labor difficulties, government agencies and their regulations, or other causes beyond the reasonable control of the Party claiming the force majeure. If any such event shall occur, the term of this Agreement and the time for performance by the Property Owner of any of its obligations hereunder shall be extended by the period of time that such events prevent it from proceeding with development of the Project. 9. Effect on Propertv. 9.1 Estoppel Certificate. Any Party may, at any time and from time to time, deliver written notice to another Party requesting certification in writing that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Agreement has not been amended, or, if so amended, identifying the amendments; and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or, if in default, describing the nature and extent of any such default. A Party receiving a request hereunder shall execute and return such certificate within thirty (30) calendar days following the receipt thereof. The City Manager of the City shall have the authority to execute any such certificate requested by the Property Owner. The City acknowledges that a certificate hereunder may he relied upon by transferees and mortgagees. 9.2 Release of Lots from Agreement. Subject to City's final inspection of the Lot and structures, promptly upon the written request of the Property Owner, the City shall execute a document, in a recordable form, releasing any Lot for which a final Map has been recorded and which has been sold or leased to a retail purchaser, from the effects of this Agreement, and deliver such document to the Property Owner. 10. Periodic Review of Compliance with Agreement. ~ 10.1 Annual Review. This Agreement shall be subject to annual review, pursuant to California Government Code Section 65865.1. Within thirty (30) calendar days following each anniversary of the date of recording of this Agreement, the Property Owner shall submit to the City Manager of the City written documentation demonstrating good-faith compliance with the terms of this Agreement ("Annual Report"), to the extent that the "-" 18 11i4 w "'f ."l~__""_j_""'-'~,-",^'i--~"""~"",,-c,,,,,," r" '- Property Owner has taken or is required to take any action pursuant to this Agreement. Failure by the Property Owner to submit the Annual Report in a timely manner shall not itself constitute a breach of this Agreement, unless the City has first given the Property Owner a minimum of thirty (30) calendar days notice thereof and the Property Owner fails to submit the Annual Report within thirty (30) calendar days after receipt of such notice. As of the Effeetive--Bate, City shaH-establish-a-reasonable-fee-for--its-ammal-review-anti-the Annual Report. Such annual fee may be adjusted every 5th anniversary of the Effective Date to cover increased costs incurred by the City for such annual review. 10.2 C~ntents of Reoort. The Annual Report and any supporting documents shall describe (i) any permits or other approvals which have been issued or for which application has been made and (ii) any development or construction activity which has commenced or has been completed since the recording date or the date of the preceding annual review. The City shall review all the information contained in such report in determining the Property Owner's good faith compliance with this Agreement. 10.3 Waiver. The City does not waive any claim of defect in performance by the Property Owner if, at the time of an annual review, the City does not propose immediately to exercise its remedies hereunder. However, in the event that the City, following receipt of the Annual Report for any year, fails to review the information contained therein and/or to determine the Property Owner's good faith compliance with this Agreement within 90 calendar days following date of such receipt, the Property Owner shall be deemed to be in good faith compliance with regard to the period covered by that Annual Report. '-- 11. Violations. 11.1 Violation bv ProDertv Owner. i. The Property Owner shall be deemed in violation of the terms of this Agreement if a finding and determination is made by the City Manager, upon the basis of substantial evidence, however received, that the Property Owner has not complied with one or more of the material terms or conditions of this Agreement. A default on the part of an Assignee after an Assignment pursuant to Section 5 above shall not constitute a violation of this Agreement by the Property Owner. ii. If the City Manager believes the Property Owner to be in violation of this Agreement, the City Manager or his or her designee shall give the Property Owner thirty (30) calendar days written notice specifying the nature of the alleged violation and, when appropriate, the manner in which the violation may be satisfactorily cured. Failure or delay in giving notice of a violation shall not constitute a waiver of such violation. "-- lll. The Property Owner may appeal the allegation of violation by filing a notice of appeal with the City Clerk, within the thirty (30) calendar day cure period described in the preceding paragraph. The Property Owner's appeal shall be placed on the agenda of the next regularly scheduled meeting of the City Council, which shall be an open meeting but not a public hearing. If the City Council finds that a violation has occllITed and is continuing, the Property Owner shall be given sixty calendar (60) days within which to 19 1n~ r -\........ cure such violation; provided that such time period may be extended by the City Manager for not to exceed 180 calendar days, upon a determination that the Property Owner is engaged in making good faith efforts to cure the violation. At the next City Council meeting following expiration of the period allowed by the City Council for curing the violation, or any extension thereof, the City Council shall set forth by motion or resolution ---- its determination-as to (i) the-continuation-of-the-violation-and-{-ii}any-aetioo-to-be taken, which action may include amendment or termination of this Agreement. Any action to terminate shall be in the form of a resolution and shall be supported by written findings. iv. After proper notice and expiration of the cure period without appeal, cure, or commencement of substantial effort toward a cure by the Property Owner, the City may take unilateral action by adoption of a resolution with written findings, to terminate or amend this Agreement. 11.2 Violation bv City. i. The City shall be deemed in violation of the terms of this Agreement upon failure of the City to carry out any of its obligations hereunder. ii. If the Property Owner believes the City to be in violation of this Agreement, the Property Owner promptly shall notify the City, through its Planning Official, to that effect, setting forth the grounds upon which a violation is claimed, facts in support of such grounds, and the means through which such violation may be cured. The City shall have thirty (30) calendar days following the date of receipt of the notice within which to take action to deny the claim, cure the violation or undertake substantial action toward the cure. 111. If the action of the City is unsatisfactory to the Property Owner, the Property Owner may make an appeal to the City Council, provided that, within ten (10) days following the date of receipt of the notice of denial of the claim, or within ten (10) days following the date of expiration of the cure period described in the preceding paragraph, whichever occurs first, the Property Owner files with the City Clerk a notice of appeal to the City Council. The City Council thereafter shall consider this matter on the agenda of its next regularly scheduled meeting, which shall be an open meeting but not a public hearing, at which the Property Owner may present information regarding the alleged violation. Based upon the information presented by the Property Owner, the City Council shall make a determination as to whether the City is in violation of this Agreement, as alleged by the Property Owner. 11.3 Lellal Enforcement. Subject to the prior exhaustion of all administrative remedies set forth in Sections 11.1 and 11.2 above, each party hereby waives all rights save for the right of specific performance or other equitable remedy against the other hereunder and otherwise specifically set forth herein. This specifically constitutes an expression of the intent of the Property Owner, its heirs, successors and assigns, joint venturers and all others bound hereby, and the City to be a waiver of any alleged Constitutional violations that may be waived by the Parties and a waiver of any and 20 166 all contractual damages of whatever source or type. Any such legal action shall be brought in the Superior Court of San Bernardino County, State of California, or in an appropriate federal court. 11.4 Mortgwzee Protection. The Parties hereto agree that this DevelopmcIXt Agteemenrsball not prevem-urlimitthe Properly O~iIrany--manner, at Property Owner's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon by any mortgage, deed of trust or other security device. The City acknowledges that the lender(s) providing such fmancing may require certain Development Agreement interpretations and modifications and agrees, upon request, from time to time, to meet with the Property Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. The 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 Development Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust or any successor or assign thereof, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a person or entity who obtains title by deed-in- lieu of foreclosure ("Mortgagee") on the Property shall be entitled to the following rights and privileges:. i. Mort~age Not Rendered Invalid. Neither entering into this Development Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. No Mortgagee shall have an obligation or duty under this Development Agreement to perform the Property Owner's obligations, or to guarantee such performance, prior to taking title to all or a portion of the Property; provided, however that a Mortgagee shall not be entitled to a building permit unless the Mortgagee satisfies all of the requirements under this Development Agreement, the Applicable Rules and any Future Approvals granted by the City. The above notwithstanding, the Mortgagee shall be on notice of and shall act in complianc~ with the requirement for a homeowner's association and CC&R's described herein. ii. Request for Notice to Mortlmgee. The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, who has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive a copy of any Notice of Default delivered to the Property Owner. Failure of the City to provide notice to the Mortgagee as provided here shall not constitute a limitation on the City's ability to proceed against the Property Owner for a cure. lll. Mortgagee's Time to Cure. The City shall provide a copy of any Notice of Default to the Mortgagee within ten (10) calendar days of sending the Notice of Default to the Property Owner. The Mortgagee shall have the right, but not the obligation, to cure the default for a period of thirty (30) days after receipt of such Notice of Default. Notwithstanding the foregoing, if such default shall be a default which can only be remedied by such Mortgagee obtaining possession of the Property, or any portion thereof, and such Mortgagee actively seeks to obtain possession, such Mortgagee shall have until 21 167 "'-' thirty (30) days after the date of obtaining such possession to cure or, if such default cannot reasonably be cured within such period, to commence to cure such default, and thereafter diligently prosecute such cure to completion. iv. Cure Rights. Any Mortgagee who takes title to aU of the Properly, VI Wly part thcrcuf, puniWlllt tu foreclusUl'e uf the mudgage or Jeed of trust, or a deed in lieu of foreclosure, shall succeed to the rights and obligations of the Property Owner under this Development Agreement as to the Property or portion thereof so acquired. Such Mortgagee shall not be liable for defaults or monetary obligations of the Property Owner arising prior to acquisition of title to the Property by such Mortgagee, except that, any such Mortgagee shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under this Development Agreement for the Property, or portion thereof acquired by such Mortgagee, have been paid to City and until all conditions, including installation of infrastructure and other improvements, have been complied with. 12. Relationship of Parties. In performing its obligations hereunder, the Property Owner is acting under this Agreement as an independent contractor and not as an agent or employee of the City. Further, nothing in this Agreement shall be construed as creating between the Property Owner and the City a partnership or joint venture for any purpose. ',,- 13. Exhibits. All exhibits referred to in, and attached to, this Agreement are incorporated herein by such reference. 14. Adoption of AeJ'eement. Adoption of this Agreement by the City shall be by ordinance. 15. Recording of Agreement. Within ten (10) days following the adoption by the City of the ordinance approving this Agreement, or any subsequent amendment hereof, the City Clerk shall file a fully executed copy hereof with the County Recorder of San Bernardino County, State of California. Concurrently with the recordation of this Agreement, City and Property Owner shall cause the recordation of a document revoking Development Agreement No. 91-03 and all application of the terms thereof to the Property. [BALANCE OF PAGE INTENTIONALLY LEFT BLANK.] /"".".".,~.,,^ \. """'- 22 168 '- /l""'"','i'>", \.-. IN WITNESS WHEREOF, the Parties have executed this Agreement, to be effective as of the date set forth in the first paragraph hereof. "PROPERTY OWNER" FONfANAe6RNERSi11, L.P., a California limited partnership By: ARADI, L TO., a Nevada corporation, its General Partner "CITY" CrfYilF-S-AN-BERNJtRf)IN-O;-. a municipal corporation By: By: Patrick J. Morris, Mayor General Partner APPROVED AS TO LEGAL FORM. Henry Empeno, Senior Deputy City Attorney ATTEST: Rachel Clark, City Clerk 23 169 State of County of On ,2012, before me, , a Notary Public in and for said state, personally appeared , who proved to me on the basis of -----satisfactory evidence to be the-person(s) whose--name(s)--islare-subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of the foregoing paragraph is true and correct. that WIlNESS my hand and official seal. Signature (Seal) State of California County of San Bernardino On ,2012, before me, , a Notary Public in and for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WIlNESS my hand and official seal. Signature (Seal) ..",.,.,v",,-,~ 1--- 24 17lil EXHffiIT "A" LEGAL DESCRIPTION OF PROPERTY WCH\30610.0001\4053l1.312f231201l 171 EXHIBIT" A" LEGAL DESCRIPTION OF PROPERTY PARCEL 1 (Assessor's Parcel No. 265-041-12): -------."..---..- TIIA T PORTION OF 11IE EAST 1/2 OF SECTION 5, LYING WITHIN TIlE LINE 01' 1 HE MUSCUPIABE RANCHO AND OF TIm EAST 1/2 OF SECTION 8, BOTH OF TOWNSHIP 1 NORTH, RANGE 4 WEST. SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO. COUNTY OF SAN BERNARDINO. STATE OF CAUFORNlA. BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S. OOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO, LYING WESTERLY OF THE .WEST LINE OF TIlE LAND CONVEYED TO C. F. MARTIN BY DEED RECORDED FEBRUARY 14, 1922, IN BOOK 740, PAGE 199 OF DEEDS AND NORTHERLY OF THE NORTH L1NE OF THE LAND DESCRIBED IN PARCEL 4 OF THE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT, RECORDED APRIL 23, 1940, IN BOOK 1415, PAGE 37, OFFICIAL RECORDS. PARCEL 2 (Assessor's Parcel Nos. 265-051-12 and 265-051-13): THAT PORTION OF THE WEST 1/2 OF SECTION 4, LYING WITlDN THE LINE OF MUSCUPIABE RANCHO AND THE WEST 1/2 OF SECTION 9, BOTH OF TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDING U.S. OOVERNMENT SECI10NAL LINES ACROSS SAID RANCHO, DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NO.1 ON LINE 27-28 RANCHO MUSCUPIABE ACCORDING TO THE PERRIN SURVEY, SAID CORNER BEING NORTH 890 03' WEST, 516.90 FEET FROM MUSCUPIABE RANCHO, CORNER M-28; THENCE SOUTH 890031 EAST, 516.90 FEET TO SAID CORNER M-28; THENCE SOUTHERLY 173.17 FEET ON nm EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; THENCE SOUTHEASTERLY, 785.30 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO A POINT WHICH IS DISTANT NORm 620 41' WEST, 195.51 FEET FROM THE NORTHEAST CORNER OF THE LAND DESCRIBED AS PARCEL NO.4 OF TIlE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT, RECORDED APRIL 23,1940, IN BOOK 1415, PAGE 37, OFFICIAL RECORDS; THENCE ON THE BOUNDARY LINE OF SAID PARCEL 4, THE FOLLOWING COURSES AND DISTANCES; SOUTH 020 11' EAST, 526.41 FEET; THENCE soum 25030' WEST, 581.59 FEET; THENCE NORTH 380 31' WEST, 1966.20 FEET; THENCE NORTH 01024' 30" EAST, 674.55 FEET; Inllllld.UHSB.DevAar.v2 r- \..,.. 172 c - '--' THENCE NORTH 390 OS' WEST, 85.12 FEET TO AN ANGLE POINT lHEREIN, SAID POINT ALSO BEING ON THE EASTERLY LINE OF THE LAND CONVEYED TO C. F. MARTIN, RECORDED FEBRUARY 14, 1922, IN BOOK 740, PAGE 199 OF DEEDS; IHENCE NORTIlERL Y ALONG LAST SAID EASTERLY LINE, NORTH 410 09' EAST, 50 FEET; - THENCE NORTH 10058' WEST, 127.05 FEET; THENCE NORTH 410 08' EAST, 241.56 FEET; THENCE NORTH 22036' EAST, 626.13 FEET TO THE POINT OF BEGINNING. EXCEPT THE LAND CONVEYED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT IN DEED RECORDED SEPTEMBER 25, 1956, IN BOOK 4046, PAGE 396. OFFICIAL RECORDS. PARCEL 3 (Assessor's Parcel No. 265-061-16): THAT PORTION OF SECTION 9, LYING WITHIN THE LINE OF THE MUSCUPIABE RANCHO, IN TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN. IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF SAID MUSCUPIABE RANCHO DEFINED BY EXTENDED U.S. GOVERNMENT SECTIONAL LINES ACROSS SAID RANCHO, DESCRIBED AS FOLLOWS: BEGINNING AT A CORNER M-28, ON LINE 27-28 RANCHO MUSCUPIABE ACCORDING TO nrn PERRIN SURVEY; THENCE SOUTHERLY 1786.17 FEET ON THE EASTERLY LINE OF SAID RANCHO TO MUSCUPIABE RANCHO CORNER M-29; THENCE SOUTHEASTERLY, 980.81 FEET ON THE NORTHEASTERLY LINE OF SAID RANCHO TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ON LAST SAID NORTHEAST LINE, SOUTH 620 41' EAST, TO THE NORTIlEAST CORNER OF THE LAND CONVEYED TO THE SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED MAY 14, 1957, IN BOOK 4229, PAGE 497, OFFICIAL RECORDS; THENCE ON THE NORTHERLY LINE OF THE LAND IN THE DEED LAST MENTIONED, SOUTH 600 03' 27" WEST, 563.37 FEET; THENCE NORTH 740 OS' 48" WEST, 1143.34 FEET TO A POINT IN THE BASTERL Y LINE OF THE LAND DESCRIBED AS PARCEL 4 IN DEED TO SAID FLOOD CONTROL DISTRICT, RECORDED APRIL 1, 1940, IN BOOK 1415, PAGE 37, OFFICIAL RECORDS, SAID POINT BEING SOUTH 030 50' EAST, 816.73 FEET FROM TIlE INTERSECTION OF SAID NORTHEASTERLY RANCHO LINE; THENCE ON LAST SAID EASTERLY LINE. NORTH 030 50' WEST 816.73 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 4 (Assessor's Parcel No. 265-051-09): Inl8Dd.UHSB.DBVAsr.v2 173 ~ f '- THAT PORTION OF SECTIONS 4, 5, 8 AND 9, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN TIlE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS THE LINES OF TIlE GOVERNMENT SURVEY MAY BE EXTENDED ACROSS TIIE MUSCUPIABE RANCHO, DESCRIBED AS FOLLOWS: _..__._._._....._.___u__ BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE, ACCORDING TO THE PERRIN SURVEY, AT NORTH 890 03' WEST, 516.9 FEET FROM CORNER NO. 28; THENCE SOUTH 22036' WEST, 626.13 FEET TO CORNER NO.2; THENCE SOUTH 51008' WEST, 241.56 FEET TO CORNER NO.3; THENCE SOUTH 100 58' EAST. 127.05 FEET TO CORNER NO.4; THENCE SOUTH 41009' WEST. 283.26 FEET TO CORNER NO.5; THENCE SOUTH 160 19' WEST, 735.98 FEET TO CORNER NO.6; THENCE WEST 374.00 FEET TO CORNER NO.7; THENCE NORTH 18232 FEET TO CORNER NO. 8 ON LINE 27-38 MUSCUPIABE RANCHO; THENCE SOUTH 890 03' EAST, 1142.6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER NO. I, 1HE PLACE OF BEGINNING. EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT TIlE 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 890 53' EAST ALONG TIIE SOUTH LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST CORNER OF SAID MARTIN LAND; THENCE NORTH 160 12' EAST ALONG THE EAST LINE OF SAID MARTIN LAND. 291.68 FEET; THENCE SOlITH 670 12' WEST. 345.0 FEET; THENCE SOUTH 520 03' WEST, 174.27 FEET TO A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 00 07' EAST ALONG SAID WEST LINE, 40.0 FEET TO THE POINT OF BEGINNING. PARCEL 5 (Assessor's Parcel No. 265-021-13): Inland.UHSB.DevAsr. v2 c 1711 GOVERNMENT LOT 16 AND TIiAT PORTION OF GOVERNMENT LOTS 14 AND 15, SECTION 5, TOWNSHIP 1 NORTII, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT ---TOWNS-HIP PIA T THEREOF, APPROVlID BY THE 81 lRVEYOR GENER AT. oN .RJNE24, 1898, DESCRIBED AS FOLLOWS: COMMENCING AT MONUMENT NO. 27 OF THE MUSCUPIABE RANCHO, SAID MONUMENT BEING THE SOUTIlWESTERL Y CORNER OF SAID GOVERNMENT LOT 14; THENCE NORTH 58014' 40" EAST, 1035.33 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 820 II' 40" EAST, 720.00 FEET; TIlENCE NORTH 00 08' EAST, 456 FEET, MORE OR LESS, TO TIlE NORTH LINE OF SAID GOVERNMENT LOT 15; . THENCE EASTERLY ALONG THE NORlH LINE OF SAID GOVERNMENT LOTS 15 AND 16, 1938 FEET, MORE OR LESS, TO 1HE NORTHEAST CORNER OF SAID GOVERNMENT LOT 16; THENCE SOUTHERLY ALONG TIIE EAST LINE OF SAID GOVERNMENT LOT 15, 1093 FEET, MORE OR LESS, TO 1HE SOUlHEAST CORNER OF SAID GOVERNMENT LOT 16, SAID CORNER BEING ON THE SAID MUSCUPIABE RANCHO LINE; InIand.UHSB.DevAar.v2 i!J!i~"""~~ \....- 175 r- '-' TIIENCE NORTII 890 WEST ALONG nm COUNTY 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 890 EAST 883.9 FEET FROM SAID MONUMENT NO. 27 OF RANCHO MUSCUPIABE; TIffiNCE NORTH 00 21' WEST. 560.34 FETE TO THE POINT OF BEGINNING. P ARCa 6 (Assessor's Parcel Nos. 265-011-07 and 265~011-O8): mE NORlH 1/2 OF TIm SOUTHEAST 1/4, AND THE SOUTHEAST 1/4 OF nIB SOUTIlWEST 1/4 OF SECTION 4. TOWNSHIP 1 NORTH. RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN BERNARDINO,. COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA. ACCORDING TO TIlE OFFICIAL PLAT OF SAID LAND APPROVED BY TIlE SURVEYOR GENERAL DATED JUNE 24. 1898. PARCEL 7 (Assessor's Parcel No. 265-011-06): GOVERNMENT LOT 5. SECTION 4, TOWNSHIP 1 NORm, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN. IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO. STATE OF CALIFORNIA. ACCORDING TO ~ OFFICIAL PLAT OF SAID LAND APPROVED BY THE SURVEYOR GENERAL DATED JUNE 24. 1898. "- Inlllld.UHSB.DevAsr.v2 17fi /"""". "-' EXHIBIT "B" PUBLIC FACILITIES FINANCING PLAN ~ WCH\30610.0001\405311.3 1212312011 177 c c c EXHIBIT "B" MELLO-ROOS COMMUNITY FACILITIES DISTRICT PUBLIC FACILITIES FINANCING PLAN This Public Facilities Financing Plan ("Financing Plan") outlines the basic tenns and conditions pursuant to which the City and the Property Owner will cooperate to establish one or more special districts or authorities, as provided under Califomialaw (collectively, "Special District") for the acquisition and/or construction of public improvements and payment of fees applicable to the Project. The principal goals of the Financing Plan are to: (i) establish reasonable certainty as to how the Special District shall be implemented; and (ii) provide for the issuance of Special District bonds in series order to minimize carrying costs. Consideration of Community Facilities Districts. The City Council will consider the use of community facilities districts (hereinafter "CFD's") as well as other financing methods to assist certain types of residential, and/or non-residential development, where, in the City's opinion, the financing of public facilities satisfies a public need, while having the financial security to reasonably assure a sound investment for potential bondholders and minimize any City exposure to liability for actions taken on behalf of public financing projects. CFD financing will be pennitted for public improvements that will benefit the expected long-term property owners, and whose useful life will be equal to or greater than the longer of (a) five (5) years or (b) the term of the bonds. Boundarv. The Special District boundary shall encompass solely the Project. If requested by the Property Owner, the Special District may contain "multiple improvement areas" (?). Consistency with General Plan. The proposed development project must be consistent with the City's General Plan and have secured appropriate land use approvals from the City to allow for the implementation of the development of the area as contemplated. OwnershiD of Facilities. Facilities which, upon completion, are to be owned by public agencies shall be considered public facilities. Authorized Facilities. The Special District shall be authorized to finance the costs of construction of all on-site and off-site public improvements ("Facilities" or "Facility"), and COsts associated with fonnation of the District, required by the Project's condition of approval or this Agreement ("Costs"). Costs of the Facilities to be constructed by the Property Owner that are eligible to be financed in the Special District are as follows: . The actual costs for the construction of a Facility, including labor, materials and equipment costs; 1 178 r '-- . The costs incurred in designing and preparing the plans and specifications for a Facility; ,--Feas paid [or obtaining permits. licenses or other governmental approvals for a Faci~ity; . Costs of construction management and supervision; . Professional costs associated with the Facility, such as engineering, inspection, construction staking, materials and testing and similar professional services; and . Costs directly related to the construction of a Facility, such as costs of payment, performance and/or maintenance bonds and insurance costs. Discrete components of the Facilities consisting of usable segments and various costs categories relating to such segments may be funded by the Special District. Examples of cost categories consisting of discrete components are as follows:- ,- ~ Streets . Planning, design, engineering and permitting; . Grading; . Paving; . Sidewalks; and . Final lift, asphalt cap and other final completion items and remaining soft costs. Wet Utilities (Sewer, Water Reclaimed Water, Storm Drain) . Planning, design, engineering and permitting; . Grading and trenching; . Installation of channels, pipes, basins, rip rap and other structures; and . Final completion items and remaining soft costs. Park and Trails . Planning, design, engineering and permitting; . Grading; . Installation of irrigation, landscaping, parking facilities, play and recreation equipment, bathrooms and other structures; and . Final completion items and remaining soft costs. There shall be no payment from bond proceeds for costs of real property upon which improvements are constructed, except as follows. Payment for real property upon which the Facilities are constructed that is in public ownership is acceptable based on the actual cash C payment to the public owner but in no case in an amount greater than the fair market value. 2 17q t- \." ADDraisal. An appraisal of the property subject to any lien required to secure any public financing shall be required. A minimum property value to lien/debt ratio of 4:1 (including any overlapping assessment of Community facilities districts) must be present pursuant to Premi~e 3 entitled "Bulk Land value" as set forth in Attachment A as determined by an M.A.I. appraisal. The appraisal shall be reviewed by the City and shall be prepared as set forth in Attachment A hereto. Absorotion Studv. Unless waived by the City, an absorption study of the proposed development project shall be required for CFD financings. The absorption study shall be used as a basis for verification that sufficient revenues can be produced to fully and timely satisfy debt service requirements and costs of services and to determine if the financing of the public facilities and services is appropriate given the timing of the development. Additionally the projected absorption rates will be provided to the appraiser for use in the appraisal required in the Appraisal section hereof. Rate and AODortionment of Soecial Tax. With regard to CFD's, the proposed rate and method of apportionment of the special tax shall comply with the following criteria: ,t"'" \....- a. The rate and method of apportionment shall not provide for an annually increasing maximum special tax for any classification. However, subject to City approval in its sole discretion, under appropriate circumstances, as determined by the City, an increase in the maximum special tax may be permitted, not to exceed two percent (2%) annually. b. The total projected annual special tax revenues must exceed the projected annual gross debt service on the bonds by at least ten percent (10%). In structuring the special tax, projected annual interest earnings on bond reserves funds shall not be included as revenue for the purpose of this calculation. c. In limited cases, as determined by the City in its sole discretion, a special tax for services may be permitted and the annual special tax may increase to reflect projected increases in costs to provide the applicable services in an amount to be determined by the City, in its sole discretion. d. The projected annual special tax revenues shall include amounts projected to be sufficient to pay reasonable annual administrative expenses and other direct costs to the CFD. e. All property not otherwise statutorily exempted or owned (or to be owned) by a public entity shall bear its appropriate share of the special tax liability. f. The special tax shall be apportioned on a reasonable basis to categories and classes of property within the CFD subject to the special tax. g. A formula to prepay the special tax may be permitted. h. The projected ad valorem property tax and other direct and overlapping debt for the proposed development project charges, projected benefit assessments, levies for c 3 1R~ r' \..,.., authorized but unissued debt and any other anticipated municipal charges {including estimated LLMD (Lighting & Landscaping Maintenance Districts)) which may be included on property owners annual tax bill), including the proposed maximum special tax, may not exceed one and one-half percent (1.5%) of the anticipated Assessor's full cash value of each improved parcel upon completion of the bond financed improvements and the reasonably anticipated private improvements. i. A backup special tax or other security device to protect against changes in densities resulting in insufficient annual special tax revenues to pay annual debt service and administrative expenses may be required at the sole discretion of the City. Credit Structure of Bond Issues. Each bond issue shall be structured to adequately protect bondholders and to not negatively impact the bonding capacity or credit rating of the City through a combination of credit enhancements, foreclosure covenants, and special reserve funds. Specifically: c a. A credit enhancement will be required whenever one entity or related entities are responsible for twenty percent (20%) or more of the debt service obligation of the proposed debt issue. The required credit enhancement shall take the form of, and shall be provided as set forth in Attachment B, hereto. b. A foreclosure covenant will be required and shall be included in any applicable bond indenture or fiscal agent agreement. In addition, within the fiscal year immediately following the first full year of delinquency, foreclosure action shall commence against delinquent parcels as specified in the foreclosure covenant made to the bond owners. c. The City will require that capitalized interest on the initial series of bonds be funded from the proceedS of the bonds. Capitalized interest shall not exceed twenty-four (24) months, and shall be for a shorter period if (i) further restricted by stature or (ii) determined by the City, in its sole discretion. Interest earnings may, at the City's discretion be applied to extend the initial term of capitalized interest but in no event beyond the term statutOrily authorized. The inclusion of capitalized interest in subsequent series of bonds will be at the City's discretion and will only be permitted if a direct benefit inures to the ultimate property owners. d. A reserve fund equal to the lesser of: (1) ten percent (10%) of the original principal amount of the bonds, (2) maximum annual debt service, or (3) one hundred twenty five percent (125%) of average annual debt service (the "Reserve Requiremenr) shall be funded from the proceeds of each series of bonds. A reserve fund surety bond or letter of credit, provided by a municipal bond insurer, a major banking institution or other equivalent source, may be substituted, at the City's sole discretion. c Level Debt Service Reauirement. Bond issues will be structured with approximately level debt service. To the extent that bonds are issued in series, individual series of bonds may have uneven debt service if the intent is to create level debt service at such time as all series of bonds are issued and to minimize the potential of fluctuating annual special taxes. 4 181 r ~ c Maximum Term of Bonds. If a single series of bonds is contemplated, the term of the bonds shall not exceed thirty (30) years. If multiple series of bond issue are contemplated, in no instan~ should an individual residential parcel be encumbered for debt service beyond a thirty- five (35) year period. Disclosure. Disclosure of the special tax lien shall be in compliance with applicable statutory authority. The City, in its sole judgment, may require additional property owner notification if it deems such disclosure will assist subsequent property owners to be made aware of the lien obligation. In addition, applicants for CFD financings and all major landowners will be required to cooperate prior to and subsequent to all bond sales with initial and continuing disclosure to bondholders and the financial markets. Applicants and landowners will cooperate in the preparation, verification and dissemination of the identity of landowners, development project plans, timetables and statistics, and financial pro-forma information, and any other information the City and its financing team deem appropriate. Formation: Payment of Initial Fees and Costs by ADDlicant. No Proposal to initiate the formation of a CFD financing will be considered valid without the payment of a fee to compensate the City for all costs incurred to perform its analysis of the proposal and to pay for the costs of conducting the proceedings. Applicants for public financing projects shall submit proposals to the City Manager. The City will review the proposal within one hundred (100) days after it is deemed complete and make its determination whether or not to formally consider the proposed district. The applicant(s) shall deposit a minimum $10,000 estimated fee amount with the City Manager at the time the proposal is submitted. The minimum fee will be increased to an amount determined by the City in its sole discretion to be appropriate given the size and scope of the proposed project or financing. The estimated fee amount shall be in the form of cash or other negotiable instrument. Failure to submit any requested increase in the deposit will result in a suspension of the processing of the financing. IndeDendent Review by the Cltv. The City will perform an independent review of the proposed public financing and may take recommendations to the City Council regarding the financial risk, impact of the City's bonding capacity, economic feasibility and related issues. The applicant(s) shall be required to provide current and two prior years financial statements, preferably audited, of the entity responsible for the development and initial payment of special taxes and other material to assist the City or its agent in its fiscal review. City to Select Professionals. The City shall select the bond counsel, underwriter, financial advisor, appraiser, absorption consultant, special tax consultant and other professionals and consultants it deems appropriate. CooDeratlon by City DeDartments. All appropriate City departments will cooperate in C conducting the necessary reviews and proceedings. 5 182 c c c as detennined by the city engineer; 2) funding for the maintenance of the improvements will be provided solely by private property owners through a combination of Assessment Districts, Special Districts, or contracts. City General Fund revenues shall not be used to fund the maintenance of any public improvements constructed with Special District bond proceeds. Tbe_________ City agrees to cooperate in a joint community facilities agreement with the San Bemardino City Unified School District ("School District") to finance school facilities, if applicable. Alternatively, if the School District is the lead agency in the fonnation of a Special District for the Project, the City agrees to cooperate in securing a joint community facilities agreement with the School District in order that City required public improvements are acquired or constructed by such Special District and turned over to ownership by the City. 7 1R4 ~ \.- ATTACHMENT A CRITERIA FOR APPRAISALS A. Definition of Appraisal. An appraisal is a written statement independently and impartia_lIy _____ prepared by a qualified appraiser setting forth an opinion of defined value of an -- adequately described property as of a specific date, supported by the presentation and analysis of relevant market information. B. Standards of Appraisal. The format and level of documentation for an appraisal depend on the complexity of the appraisal problem. A detailed appraisal shall be prepared for complex appraisal problems. A detailed appraisal shall reflect nationally recognized appraisal standards, including, to the extent appropriate, the uniform Appraisal Standards for Federal Land Acquisition, as well as appraisal standards promulgated by the California Debt and Investment Advisory Commission, and shall specifically identify any departure from such standards. An appraisal must contain sufficient documentation, including valuation data and the appraiser's analysis of the data, to support the appraiser's opinion of value. At a minimum, the appraisal shall contain the following items; ~ ~ 1. The purpose and/or function of the appraisal; a definition of the estate being appraised, and a statement of the assumption and limiting conditions affecting the appraisal. 2. An adequate description of the physical characteristics of the property being appraised; location, zoning, present use, end analysis of the highest and best Use. 3. All relevant and reliable approaches to value consistent with section D below, as well as commonly accepted professional appraisal practices and the standards of the California Debt and Investment Advisory Commission. If a discounted cash flow analysis is used, it should be supported with at least one other valuation method such as a market approach using sales that are at the same stage of land development. If more than one approach is utilized, there shall be an analysis and reconciliation of approaches to value that are sufficient to support the appraiser's opinion of value. 4. A description of comparable sales, including a description of all relevant physical, legal and economic factors such as parties to the transaction, source and method of financing, and verification by a party involved in the transaction. 5. A statement of the value of the real property. c 8 185 c 6. The effective data of valuation date of appraisal, signature and certification of the appraiser. C. _Conflict of Interest. No appraiser or review appraiser shall have any interest direct or indirect in the real property being appraised for the City that would in any way conflict with the preparation or review of the appraisal. Compensation for making the appraisal shall not be based on the amount of the valuation. D. Community Facilities District Appraisal Premises. The valuation of proposed special tax districts should be based on three premises: 1. Raw Land Value (Premise #1). The total land within the project shall be valued "as is.. a. Without proposed infrastructure being financed or any future private improvements. b. With existing parcel configuration and existing land use entitlements. c. Considering planned densities allowed by the specific plan or other project approvals then in effect. This is a typical type of land valuation c 2. Project Buildout value (Premise #2). The total land within the project is valued under projected conditions. a. With proposed infrastructure being financed completed. b. At the planned densities allowed by the specific plan or other approvals then in effect. c. Land development is at the stage of being marketed to merchant builders or tentative tract maps ready to be filed. This is a projected value based on project plans predicated on market conditions continuing as project. 3. Bulk Land Value (Premise #3). The total land within the project is valued under projected conditions: a. With proposed infrastructure being financed completed. b. With existing parcel configuration. c. Considering planned densities allowed by the specific plan or other project approvals then in effect. This premise should consider a discounted or "quick sale" valuation considering time, costs and the possibility of a per unit value based on the total size of the project. c 9 1 Rfi ,'--' ~ ATTACHMENT B POLICY ON CREDIT ENHANCEMENT If property within the proposed boundaries of a CFD, owned by one entity or related entities, . their successors and assigns, is responsible for twenty percent (20%) or more of the debt service obligation of the proposed debt issue, an irrevocable credit facility having the following terms will be required: A. The credit facility will name the bond trustee or fiscal agent as beneficiary. B. The face amount of the credit facility will be equal to three (3) times the amount of the annual debt service obligation for which the property so owned is responsible. C. The credit facility will have a term of at least one year and by subject to annual renewal or call prior to expiration. D. The credit facility may be drawn upon should there be a default by the property owner in the timely payment of the special tax obligation for the subject property. r- E. The credit facility must be issued by a financial institution acceptable to the City that is rated "A" or better by Standard and Poor's Corporation, Moody's Investors Service or Fitch Investors Service, Inc. \...-. F. The face amount of the credit facility may be drawn should the credit facility not be timely renewed or a substitute credit facility acceptable to the City not be timely provided, or if the rating or the capitalization of the provider falls to a level not acceptable to the City in its sole discretion. G. The face amount of the credit facility will be subject to periodic adjustments should the property owner sell or transfer portions of the property to unrelated third parties. For purposes of this Policy, parties will be considered to be related should they be so deemed by the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations promulgated thereunder. However, the City does reserve the right to apply a stricter standard than that provided by the Code in determining parties that are related. The City may, in its sole discretion, require additional credit enhancements for a particular CFD financing if it is determined that they are needed to bring the credit worthiness of the proposed debt issue up to a level that is acceptable to the City in its sole discretion. 10 1~7 r \..-. ATTACHMENT C CONSTRUCTION CONTRACTS FOR COMMUNITY FACILITIES DISTRICTS WITH MELLO. ROOS DISTRICTS With regard to the construction of public facilities that are to be financed from the proceeds of bonds sold pursuant to the Act, the following policies are to be applied: A. The appropriate City department will be specified as the CFD's representative to administer the construction of each of the facilities to be owned and maintained by the City. B. Unless otherwise agreed by the City, the facilities to be owned and maintained by the City are to be acquired by the CFD. C. Consistent with this policy, the City finds, pursuant to Section 53329.5(c) of the Act, that it will not serve the public interest to allow the property owner(s) to elect to preform the construction' of the facilities after the publication of the notice of the award of the contract and declaration to this effect is to be included in each resolution of intention submitted to the City Council pursuant to Section 53321 of the Act. c D. The entity that constructs the improvements must comply with all applicable prevailing wage and bidding requirements, and so certify such compliance to the City prior to the use of bond proceeds to pay costs of any improvement constructed by an entity other than the City. c 11 1QQ ~ \-" EXHIBIT "e" TABLE OF PROCESSING FEES r- '-" /""- ;i '-" WCH\30610.0001\4OS31l312123/2011 1R~ o Planning Division Community Development Department 300 North "D" Street, ~ Roar, San Bernardino, CA 92418-001 09 84-5057 Fax: 909 384-508.Q Webslte: www.sbdtv.ora .. PLANNING DIVISION SCHEDULE OF FEES Fees Effective: January 1, 2009 c B,lse Technology Archive Type of ApplICatIon Fee Fee Fee Tot,ll Amendment to Conditions: - Director review (DP1) $583 $11.66 $8.00 $602.66 - D/ERC review (DP2) $822 $16.44 $8.00 $846.44 - Planning Comm. Review (CUP/DP3/SUB) $2,550 $51 $8.00 $2,609.00 Antenna Development Permit (DP1) $2,938 $58.76 11.25 $3,008.01 Appeal to Mayor a Common Council - Non-applicant, City resident $177 $3.54 $2.00 $182.54 $1,766 $35.32 $2.00 $1,803.32 - All others Appeal to Planning Commission - Non-applicant, City resident $278 $5.56 $2.00 $285.56 - All others $2,772 $55.44 $2.00 $2,829.44 Conditional Use Permit - Aicohol outlet in existing building $3,858 $77.16 $12.00 $3,947.16 - Commercial a Industrial (non-residential) $7,133 $142.66 $12.00 $7,287.66 - Residential (Condo, HMOD, Guest HOUse) $2,809 $56.18 $12.00 $2,877.18 - Revision $2,113 $42.26 $12.00 $2,167.26 Design Review Full Consultant Cost * Development Agreement or Agreement Direct Cost +2% * Amendment Recovery Fee Development Code Amendment $7,449 plus Full $148.98 * Consultant Cost Development Permit - TYpe 1 (DP1-Director review) $1,070 $21.40 $11.25 $1,102.65 - TYpe 2 (DP2- Dev. Review Committee) $6,890 $137.80 $12.00 $7,039.80 - TYpe.3 (Planning Commission) $7,191 $143.82 $12.00 $7,334.82 - Tvoe.3 (Mavor and Common Councill $7.288 $145.76 $12.00 t7,445.76 c 1 190 c B.1se 1 echnology ArchIve Type of Application Fec F('c Fee Total DoCument Copies Varies - see page 4 Environmental Study (Initial Study prepared $3,273 $65.46 n/a $3,338.46 by sterr for MHD with MM/RP) Environmental Impact Report Direct Cost Recovery Fee plus Full Consultant Cost Extension of Time - CUP" Development Permit 2/3 $3,922 $78.44 $11.25 $4,011.69 - Tentative Tract Maps $4,768 $95.36 $11.25 $4,874.61 Fence/Wall Permit $56 $1.12 1.50 $58.62 Fire Fees - CUP" Development Permit 2/3 $413.45 n/a n/a $413.45 _ Subdivisions, Tentative Tracts, Parcel $361.85 $361.85 Maps, and Lot Line Adjustments (CA Dept of) Fish. Game Fees (Make check payable to "'Clerk of the Board of Supervisors") _ Environmental Impact Report $2,768.25 + $50 Admin. Fee $2,818.25 - Negative Declaration (with or without $1,993.00 + $50 Admin. Fee $2,043.00 MMRP) $50 $50.00 - Notice of Exemotion General Plan Amendment (text or map) Direct Cost Recovery Fee ($1500 Deposit) Historic Preservation Report Direct Cost Recovery Fee ($815 deposit plus Consultant Cost) Home Occupation Permit $268 $5.36 $2.00 $275.36 Letter of Zoning. Gen. Plan Consistency $450 $9.00 $2.00 $461.00 Lot Line Adjustment $477 $9.54 $8.00 $494.54 Minor Exception - Concurrent with another application $288 $5.76 $4.50 $298.26 - Owner-occupied Single-family residence $268 $5.36 $4.50 $277 .86 - Other $792 $15.84 $4.50 $812.34 Misc. Environmental Report Review Direct Cost Recovery Fee ($245 deposit) plus Full Consultant Cost ($327 deposit) Minor Modification/Revision $561 $11.22 $4.50 $576.72 Phasing Pia., Review - If not part of original project review $823 $16.46 $12.00 $851.46 - Dev. Review Committee application $514 $10.28 $12.00 $536.28 (DP2) $536 $10.72 $12.00 $558.72 - Plannina Comm. aDDlicatlon o c 2 191 Brtse Technology AlChlvc . Type of Application Fcc Fee Fcc Totill c (CUP/DP3/SUB) Planning Commission Interpretation $1,119 $22.38 nfa 1141.38 Public Convenience or Necessity Letter ~b36 $12. 72 S.SO $6S42r- (PCN) Pre-Application Review - DRe Review $2,424 $48.48 $6.00 $2,478.48 (If an appliclll:ion is flied within 60 days of the review, $1,500 will be credited toward that appllaltion.) Reconsideration by the Planning Comm. $506 10.12 nfa $516.12 Sign Permit $182 $3.64 $5.50 $191.14 _ Requiring Conditional Use Permit $3,858 $77.16 $5.50 $3,940.66 - Temporary $111 $2.22 $5.50 $118.72 Sign Program $610 $12.20 $5.50 $627.70 Specific Plan or Specific Plan Amendment Direct Cost Recovery Fee plus Full Consultant Cost Temporary Use Permit - Director Review $450 $9.00 $4.75 $463.75 - Planning Commission Review $782 $15.64 $4.75 $802.39 Tentative Parcel Map $4,262 + 2% of $8.00 Varies plus $65 per parcel calculated base fee Tentative Tract Map (for Single-Family $7,561 + 2% of $8.00 Varies Residential, Condo's, or P.R.D.) plus $65 per lot/dwlg calculated unit base fee Tentative Map Revision - Tract/Parcel Map $2,113 $42.26 $8.00 $2,163.26 Tree Removal Permit $506 $10.12 $4.25 $520.37 Variance $2,724 $54.48 $4.75 $2,783.23 - With another application $910 $18.20 $4.75 $932.95 - Single Family Residence $322 $6.44 $4.75 $333.19 Vesting Tentative Maps Direct Cost Recovery Fee plus Full Consultant Cost Zoning Form - written verification of zoning $22 $.44 $2.00 $24.44 only Zoning Verification Review (for Business $37 $.74 $2.00 $39.74 Registration Certificate) * Archive fees are $1.00 plus $2.00 per plan sheet plus $.25 per document. Total archive fee will vary base on the total number of case file documents. c 3 19? C. Direct Cost Recoverv Fee ... The Direct Cost Recovery Fee shall include all City labor and material costs, both direct and indirect, including overhead charged against the specific item being discussed. The applicant shall pay a deposit for the Direct Cost Recovery Fee at the time of filing the application. full Consulrant Cost The Full Consultant Cost shall include all costs incurred by the City under contract with a consultant. The applicant shall pay a deposit for the full consultant costs at the time of filing the application. c DeDOSit Reauired The applicant shall pay an Initial deposit of $1,500 (or the deposit listed in the fee schedule) at the time of filing an application on which there is a Direct Cost Recovery Fee. The applicant shall pay an initial deposit of $1,500 (or the deposit listed in the fee schedule) at the time of filing an application on which there is a FUll Consultant Cost Fee. When 75% of a deposit has been expended, and the Planning Division determines that the estimated remaining costs of the job will exceed the amount deposited, an additional deposit of such excess shall be required. Notification of the additional deposit required will be mailed to the applicant, who shall deposit such monies prior to the date specified In the notice. When an additional deposit has been requested, work will be suspended on the project when 95% of the deposit previously received has been expended. Projects will not be completed with money due. If an additional deoosit is not made bv the date soecified in the notice. the Droiect shall be deemed withdrawn on the date soecified without anY further action on the Dart of the Otv of.San Bernardino and without refund of any money deoosited for services oerformed. Such project may be reinstated only if additional deposit Is made within 30 days from the date that the project was deemed withdrawn. If a project involves multiple applications, the full amount of fees for each type of application shall be paid. Refunds will be made by the aty of any fee that was erroneously paid or collected, for any unused deposit monies of Direct Cost Recovery Fee or Full Consultant Cost Fee after all changes for the project have been determined, or as determined by the Director. Fees are automatically adjusted annually on January 1st of each year, based on the latest available Consumer Price Index Increase from the prior year. Fees adopted per Resolution No. 89-471 (11/22/89), Resolution No. 91-148 (4/18/92), Resolution No. 2003-211 (8/4/03), and Resolution No. 2006-325 (9/5/06). Fire Department fees authorized by Resolution No. 1999-173 (7/13/99) and Resolution No. 2006-325 (9/5/06). Technology Fee of 2.0% is authorized by Resolution No. 2008-149 (05/07/08). FEES FOR DOCUMENTS & MAPS Account # OOl-00Cl-4710 Documents The General Plan, Development Code, and other documents are available on the aty's web page: ~.sbcity.ora. select Departments and Development Services and Planning. Maps Maps are available in the General Plan located on the aty's web page: www.sbcitv.ora. select Departments and Community Development and Planning. Copying Photocopies ............................................................................. 354 first page, plus 154 each additional page c 4 1~3 Engineering Division Development Services Departtnent 300 North "0" Street, 3rd Floor, San Bernardino, CA 92418-001 - 15 Website: www.sbdty.org ENGINEERING DMSION SCHEDULE OF FEES Fees Effective: July 18, 2009 BJse I SSU,1ncc T0chnology Al chIVe i ypc of Appllcdtlon F...... Ft'C' fl'l' (::>' ,) 1'<-:(' (P_01 1 at ,II ~ Basic Permit Fees: - Engineering Permit $45.00 $.90 $1.00 $46.90 - Blanket Permit $53.00 $1.06 $1.00 $55.06 - Permit Extension $43.00 $.86 $1.00 $44.86 Permanent Encroachment Permit $625.00 $45.00 $12.50 $1.00 $683.50 lo., emporary Encroachment Permit: - No Lane Closure $25.00 $45.00 $1.40 $1.00 $74.80 - With Lane Closure (First Day) $136.00 $45.00 $3.62 $1.00 $185.62 - Each Additional Day $60.00 * $1.20 * $61.20 Combo Lane Closure With Excavation $286.00 $53.00 $6.78 $1.00 $346.78 Special Events Enaoachment Permit: - With A Lane Closure $500.00 $45.00 $10.90 $1.00 $556.90 - With A Street Closure $514.00 $45.00 $11.18 $1.00 $571.18 - Road Closure (First Day) $302.00 $45.00 $6.94 $1.00 $354.94 - Road Closure (Each Additional $302.00 * * * $302.00 Day) Oversize Load Permit/Building Move - One Day Permit (State Fee) $17.00 * $.34 $1.00 $18.34 - Annual Permit (State Fee) $95.00 * $1.90 $1.00 $97.90 Hauling Permit: - First Day $393.00 $45.00 $7.86 $1.00 $401.86 - Each Additional Day $100.00 * $2.00 * $102.00 excavation Permit (Per Day) $150.00 $45.00 $3.90 $1.00 $199.90 194 . Bil<;C I<;suance Technology Arch/vi' Type of Application Fl'l' Fee Fl:C (2" J) F t.' P l!'i:l Total ? h eJill Traffic Study Report - Base Fee $719.00 * $14.38 $.25 $733.63 - Extended Review (Per Hour) $80.00 * $1.60 * $81.60 -.-- - -- ---- ---------=- Final Map or Parcel Map Review: - Base Fee $2,210.00 * $44.20 $2.00 $2,256.20 - Per Lot Fee $55.00 * +2% - Each Additional Review $135.00 * $2.70 * $137.70 - Final Map Continuance $404.00 * $8.08 * $412.08 - Certificate of Correction (Per $97.00 * $1.94 $2.00 $100.94 Hour) Off-Site Improvement Pian Check Fee/Based on Construction Cost 4% * +2% $2.00 Estimate Minimum $50.00 Charge On-Site Improvement Plan Check Fee/Based on Construction Cost 2% * +2% $2.00 Estimate ",Grading Plan Check Fees: No Fee * '" * - 50 or Less Cubic Yards (CV) * ",,- - 51- 100 Cubic Yards (CY) $15.00 * $.30 $2.00 $17.30 - 101-1,000 Cubic Yards (CY) $22.50 * $ .45 $2.00 $24.95 - 1,001- 10,000 Cubic Yards (CY) $30.00 * $ .60 $2.00 $32.60 - 10,001- 100,000 Cubic Yards $30.00/$15.00 * +2% $2.00 (CY) additional 10,000 CY +2% $2.00 - 100,001 - 200,000 Cubic Yards $165.00/$9.00 * (CY) additional 10,000 +2% $2.00 CY - 200,001 Cubic Yards (CY) and up $255.00/$4.50 * additional 10,000 CY Four or More Plan Checks $85.00 * +2% $1.00 Review Revisions to Approved Plans $137.00 * $2.74 $2.00 $141.74 Review Fee: - certificates of Compliance $828.00 * $16.56 $ .25 $844.81 - Lot Merger $828.00 * $16.56 $ .25 $848.81 - Lot Line Adjustment - Single * Family/Owner Occupied $414.00 * $8.28 $ .25 $422.53 - Lot Une AcUustment - Commercial/Industrial $828.00 * $16.56 $ .25 $844.81 -\- 2 1qJ:; Bast' Issuance Technology Archive . Type of Application FL'l' Fcc Fee (2")) Fee [Pl'l Total ~ Off-slte Construction Inspection Fee/Based on Construction Cost -l!itimate On-Site Construction Inspection Fee/Based on Construction Cost Estimate Grading Inspection Fees: - 50 or Less Cubic Yards (eY) - 51- 100 CUbic Yards (CY) _ 101-1,000 Cubic Yards (CY) _ 1,001- 10,000 Cubic Yards (eY) _ 10,001- 100,000 Cubic Yards (CY) 4% 3% No Fee $150.00 $225.00 $300.00 $300.00/$100.00 additional 10,000 CY $300.00/$100.00 additional10,000 CY $300.00/$100.00 additional 10,000 CY $73.00 _ 100,001 - 200,000 Cubic Yards (eY) _ 200,001 Cubic Yards (CY) and up 'Ianket Permit Inspection (Per cation) Re-inspectlon Bond Release Inspection After Hours and Holiday Construction Inspection: - 4 Hour Minimum - Each Additional Hour $59.00 $59.00 $369.00 $92.45 Review of Storm Water Pollution Prevention Plans (SWPPP): - Commercial and Residential Projects - Industrial and Linear (OP/Utillty) Projects $410.00 $265.00 Review of Water Quality Management Plans (WQMP): - Non- Categorical _ Categorical without Conditions of Concern _ Categorical with Conditions of Concern _ Four or more Reviews Per Hour * * * * * * * * * +2% +2% * $3.00 $4.50 $6.00 +2% +2% +2% $1.46 * $1.18 $1.18 * $1.00 $.25 $.25 * * * * * * * $153.00 $229.00 $606.00 * * * $7.38 $1.85 * * * $74.46 * $8.20 $5.30 * $60.18 $61.18 * * * $376.38 $93.30 $418.45 $270.55 $80.00 * $1.60 $ .25 $81.85 $365.00 * $7.30 $ .25 $372.55 $1,130.00 * $22.60 $ .25 $1,152.85 99.00 * 3 196 . Base !<;SlIdllCl' TtCclmology Arcl1lVtC Type of AppllCiltlOI1 Fee Fl'" Fl'" (2' J' Fel' (P~ t r otcll SllCl't} Review of Erosion/Waste Management $75.00 * $1.50 $.25 $76.75 . . Control Plan u U , UU'U'um e- National Pollutant Discharge Elimination System (NPDES) Construction Inspection: $98.00 * $1.96 * $99.96 - Less Than 10 acres $179.00 * $3.58 * $182.58 - 10 Acres or More National Pollutant Discharge Elimination System (NPDES) Business $143.00 * $2.86 $1.00 $145.86 InsDectlon: Hydraulic/Hydrology Study: - Three Hour Minimum $487.00 * $9.74 $ .25 $496.99 - Four or More Hours $100.00 * $2.00 $ .25 $102.45 Temporary Certificate of Occupancy $520.00 * $10.40 $1.00 $530.25 Engineering Letter $100.00 * $2.00 $ .25 $102.25 ("Street Name Change m~ " - Plus the Cost of the Sign $1,345.00 * $26.90 $ .25 $1,372.15 Sewer Capacity Analysis: - Minimum Fee $280.00 * $5.60 $ .25 $285.85 - Extended Review (Per Hour) $80.00 * $1.60 $ .25 $81.85 Street Light Electrical Energy Fee - 70W 5,800L Type A $420.00 Each * $8.40 $428.40 - 100W 9,sOOL TypeB $472.80 Each * $9.52 $482.26 - 1 SOW 16,oOOL TypeC $720.00 Each * $14.40 $734.40 - 200W 22,OOOL Type D $912.00 Each * $18.24 $930.24 Billing Fee $59.00 * $1.18 $ .25 $60.43 street or Alley Vacation - Deposit $1,000.00 * $20.00 $ .25 $1,020.25 - Balance Due Prior to processing $1,000.00 * $20.00 $ .25 $1,020.25 Dedication of Right-of-Way (Each): - If Legal and Map are Provided $315.00 * $6.30 $ .25 $321.55 - If City Prepares Legal and Map $800.00 * $16.00 $ .25 $816.25 Private Party Annexation Request $14,750.00 * $295.00 $ .25 $15,045.25 City Property Lease processing $2,100.00 * $42.00 $ .25 $2142.25 C" 4 197 ~ B"se I<,<,udnc\: Technology AI c11IVC ~ lypeofApplicatlol1 ['ee fiT [','(11',,) Fee (J:t" Tot(j! Sheet} Community Facility District Verdemont Area Only $7,010.78jLot $140.22 $ .25 . $7~?1.25 Residential in .Ueu Fee $386.43jLot $7.73 $.25 $394.40 - Residential If in CFD 2009/2010 $48,975.34jAcre $979.51 $ .25 $49,954.46 - Industrial/Commercial in Lieu $2,699.48jAcre $53.98 $.25 $2.753.721 Fee - Industrial/Commercial if in CFD $5,900 $118.00 $.25 $6,018.25 , 2009/2010 - CFD Formation Fee Assessment District $5,900 $118.00 $.25 $6,018.25 Outside City Sewer Service Permit $1,300.00 $45.00 $26 $1.00 $1,327 * Archive fees are $1.00per permit, $2.00 per plan sheet and $.25 per document. Total archive fee will vary base on the total number of case file documents. FEES FOR DOCUMENTS. MAPS Account # 001-OQ(H710 Documents The General Plan, Development Code, and other documents are available on the Oty's web page: www.sbcity.org, select Departments and Development Servia>sand Planning. Maps Maps are available in the General Plan located on the City's web page: www.sbcitv.ora. select Departments and Development Services and Planning. Copying Photocopies ............... ...................................................... ....... 35~ first page, plus 15~ each additional page 5 1QQ ""'- ,c.-i~'." ',- EXHIBIT "D" TABLE OF IMPACT FEES WCH\30610,OOOI\40S3l1.3 12123/2011 1QQ Exhibit 0 University Hills Impact Fee Schedule EeesJo be paid by the initial 504 Units' . Local Circulation System Fee . Regional Circulation System Fee . Sewer Connection Fee . Storm Drain Fee . Sewer Capacity Fee . Sewer Inspection Fee . Water Acquisition Fee . Water Administration Fee . School Fee Detached Attached $232.94 $155.28 $2.435.00 $1 ,626.00 $419.72 per bedroom, both $3,925.91 $1,620.67 $3,500.00 $3,500.00 $29.18 $29.18 $4,740.00 $2,370.00 $180.00 $180.00 $5.19 per SF for both Fees specifically excluded for the initial 504 Units \,..~. . Law Enforcement Fee . Fire Suppression Fee . Library Facilities Fee . Aquatic Facilities Fee . Public Meeting Facilities Fee . Parkland and Open Space Fee $639.07 $792.09 $637.89 $326.11 $1089.54 $9,517.86 $566.22 $977.13 $505.30 $258.00 $861 .84 $7,533.45 Current Fee Categories, to be paid by all units after the initial 504 units. . Local Circulation System Fee . Regional Circulation System Fee . Sewer Connection Fee . Storm Drain Fee . Sewer Capacity Fee . Sewer Inspection Fee . Water Acquisition Fee . Water Administration Fee . School Fee . Law Enforcement Fee . Fire Suppression Fee . Library Facilities Fee . Aquatic Facilities Fee . Public Meeting Facilities Fee . Parkland and Open Space Fee '- $232.94 $155.28 $2.435.00 $1 ,626.00 $419.72 per bedroom, both $3,925.91 $1,620.67 $3,500.00 $3,500.00 $29.18 $29.18 $4,740.00 $2,370.00 $180.00 $180.00 $5.19 per SF for both $639.07 $566.22 $792.09 $977.13 $637.89 $505.30 $326.11 $258.00 $1089.54 $861 .84 $9,517.86 $7,533.45 ?r"r" EXHIBIT "E" MITIGATION MONITORING AND REPORTING PROGRAM WCH\30610.000I\4OS311.3 12/2312011 .,111 RfUll EnvltDnmentallmpGt Report UnMnItY Hila Specific Plan Mitigation Monnotfn9 and Reporting Plan 5.1 Introduction The following plan will help assure that the mitigation measures contained in the Draft ElF.. and as modified in this Final EIR, are properly implemented according to state law. This Mitigation Monitoring and Reporting Plan (MMRP) identifies measures incorporated into the project that reduce its potential environmental impacts, the entities responsible for implementation and monitoring of mitigation measures, and the appropriate timing for implementation of mitigation measures. As described in Section 15097 of the State CEQA Guidelines, this MMRP employs both reporting on and monitoring of project mitigation measures. The objectives of the MMRP are to: . Assign responsibility for, and ensure proper implementation of, mitigation measures; . Assign responsibility for, and provide for monitoring and reporting of compliance with mitigation measures; and . Provide the mechanism to identifY areas of non-compliance and the need for enforcement action before irreversible environmental damage occurs. ""- Mitigation monitoring and reporting procedures incorporated into the project are presented in the following Section (Section 5.2). Specific mitigation measures incorporated into the project, mitigation timing, and implementation and reporting/monitoring responsibilities are presented in Table 5.1. 5.2 Mitigation Measures and Reporting As the Lead Agency, the City of San Bernardino is responsible for ensuring full compliance with the mitigation measures adopted for the Proposed Project. The City will monitor and report on a1l mitigation activities. If, during the course of project implementation, any of the mitigation measures identified cannot be successfully implemented, the City shall immediately inform any affected responsible agencies. The City, in conjunction with any affected responsible agencies, will then determine if modification ofthe project is required. andlor whether alternative mitigation is appropriate. 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UI CD >- I- JZw I lL ~II ~III g a. E Oee II> .. .00 i8SS ~ ~ fUU UI ... ~ ~ Z ~ .... ... ~ .... I!!E I!!E ~ ;-. \.... 227 "- EXHIBIT "F" 5 YEAR PERFORMANCE REQUIREMENT ".;;dAoc" "-" WCH\'30610.0001\40S3J1.3 1212312011 228 Exhibit F 5 Year Performance Requirement Prior to the fifth anniversary of the effective date of the development agreement the Owner/Developer shall: Acquire the necessary rights (easements, licenses, rights of way, encroachment permits, etc) to construct the Phase 1 Infrastructure, including roads, intersections, drainage facilities, slopes, fuel medication areas, water storage tank and water lines. Complete a full submittal of completed construction plans, which will include the civil engineering and landscape architecture, for a phase of single family homes consisting of at least 25 lots, with an associated park. Complete a full submittal of completed construction plans for the Phase 1 Infrastructure as follows: Phase 1 Infrastructure consists of: . Campus Parkway from Northpark Boulevard to the project site, and through the project eastward along the Primary Local road, then along the Community Local I road to Little Mountain Road, southerly and westerly to the CSUSB campus, then southerly to the intersection of Northpark Drive. This consists of new construction, reconstruction of intersections and the acquisition of right of way or easement rights. . 2 Water storage tanks, one of 1.5 million gallons, one of 1 million gallons, along with an 1880 pressure zone pump station and a 1720 pressure zone pump station, as well as associated lines to interconnect the system. . The backbone drainage system as shown on exhibit 3-28 of the specific plan, excluding drainage systems for Planning Area 15. . The backbone sewer system as shown on exhibit 3-29, excluding the system to serve planning area 15, as well as the system to service to planning areas 1 6, 17,18,19, and 20. c 229 ."'",,,,,,..... EXHIBIT "G" FACILITIES MAINTENANCE PLAN '''~ ,f,Ol!~^ '-" WCH\30610.0001\40S311.3 1212312011 nlil ........... j~~ ~~~ 5~t3 (,)~~ ~~I :S i~ d~ ~9B ~E~ = f~ \...,... tile 00 ~ ~]S a E 0 2u ~ ~..... 'U U l ..:: a a ~ al = :~~= -0 ~ ~ i~ ~ !~II.li~~1E~ j 8 i= ~ Jill} ~Iu~~. ~ ~!~i ~ S<~J;~J~!~rl~11~t~<~. ~ is-oat:l:; tl.i;r:f~~ E~~lll ~ -S:J".!:a-=1S.8u u:!~tl--S- o !E]~ll~!~d!~!6~~i~di ~ -N ~ ~~ ~~~~ ~= ~ ~: @ '. . " ..-'.- -' .... ~;~~~~ fI . . .~ " ,; ,~:'i....' .;" . .. \. 231 .. t; 11 t:: i ~ jl~ "'~a. ~f-tj ~u 0=~ ~~~ ~i~ ~~5 ~~~. ~Il&lr:r. ~ . ".,....... \...... ! Ii ~. 0.. W i ~ , en ... 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I I ~ ~ :I: 9 a.il~!j !.~i!.c!~ lD !.a'~I!!-gN'O.eI" z -< '" - ~ i ~i!!. E c: ~ ~ 1 .. i ~ lD ~ J9 ~EIl5I i:!.:J2:;;.elp!8~~~ 1i2tiC'ilwi1i " Q ol",.1I1fC'll lOoe .I:~BC:'" 2_ i ~0.~i~~1~.::J!"8s ~!.o:l~l~l lie ~ ~ ~ ~ m I c: c a. ::::i w en ~ 15 I c 0 t! -8- 0. ~ ~o C) I % - i c: ..e e 0 D..JI! I 0 i 8e! ~ ~ IE t- m m III c J en !_ 0. "e 0. ::J ;& U ~ C1i~ ;E ~~ II ! o di. C) ~I. CD eft 0 .. C't lOt .. yo .... 9" .. ... "I""'" '-" 233 f n~~~ ~ ::i :t ;; ~ I ~ : ~ · ~ ~ ~ ~ i ! x ,i ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ a ~ ~ a ~ ~ ~ ~ ~ a ~ j !un. . . . j I - " ~ " ~ ... ! ~ . . . . nn 1; ~ n "..:ni . N ,... N . i i J qlj, I . i i i i II ill If~l~ 11 J 1 l'IJ"jH ! I .1'11f'l ~ ;;: pIn 11 t i i iltIl,fif i ~i ~ tlllj... I j f .'11111 '21i Jitnlt uti IfJIJtJ.lItJllfJJ) ]1s11 II J ~nUUjfUI~ I 8! = ~ ~ e: ~ ~ . i :l:<l:<l III Ii ~ - .. \~ I ~ ~ ~ ~ ~ , ~ ~ ::i ~ : ~ , ~ ; , ~ = d ~ ~ d a i ~ i ~ i ::c : g.;~c; N .- III If CLI ~ ii: Ii .. ~~~ ~'c C i u:: :;) ~ i !i... ; . .~'. -t I.ililj! ~ 1 ~ ~ ~ ~ t ~ i ~ ~ i ~ ~ ~ t ~ ~ t ~ i i i ! ! ! I j ~ !Ii a ~ L ~ jFi , I 2 I"N~..........a===s=.::;=..===~ a rt,U><'I''''' ! ~~~i~;~::~::" , \...,., 234 S'l r' -, r:=:::.... Density Table 3-3 Development Standards - Detached Residential Uses Average density 2.6 DUlac 6.7 DUlac Density range ~.1 DUlac 3.2-9.0 DUlac Building Site SpeclflcatlDlls Front Setbacks ' Minimum lot size per lDIit Minimum lot YAdth 1,2 Minimum lot depth Comer lot streetside lot Mfth Maximum lot coverage 2,400 sf 35ft 60ft 40ft 70% 5,000 sf SOft 100 ft 55ft 60% To habitable SIruclUre To front-entry garage To aaey-entry garage To sidcHntry garage To unenclosed porch 12ft 18ft Oft 15ft 10ft 11.9 DUlac 9.1-15.0 DUlac in PA 5& 13 9.1-17.0 DUlac in PA 10, 14, & 20 1,200 sf 25ft SOft 30ft 75% 8ft 18ft Oft 10ft 5ft 7ft N/A Oft 10ft 3ft To structure Projections into setback 3 10ft 4ft Side Setbacks flOm Street ROW 5ft 2ft 3ft 1ft IntellOI Side Setbacks To habitalile structure 8 To front.entry garage in rear 113 of lot To aIIey-entry garage ProjeCtions into setback3 Oor5ft Oft Oft 2ft Oor3ft Oft Oft 1ft Oor3ft Oft Oft 1ft To habitable SIruclUre fll1terior lot) To habitable structure (hCll1l8-to-alley) 4,5 Rear Setbacks 15ft 10ft 6ft 5ft 5ft 5ft o fl. but either (1) a 30 foot wide alley (24-foot wide paved area wiIh a 3 foot apron on each side) Is required in aDeys wiIh no parking, or (2) a 34 foot Wle alley (28 foot wide paved area . a 3 foot apron on each side) is required in alleys . parking. Oft Oft Oft 3ft 3ft 2ft To alley-entry garage To front-entry garage in rear 113 of lot Projections into setback 3. 5 Maximum height 6 35ft Height 35ft 40ft Other Tandem parting 9 Third car is permitted to be tandem 10 ft Permitted in 25% of units 6ft BuDding separation 7 ~ ~. University Hills Specific Plan 235 Permitted in 25% of units 6ft ""'" ~ ""'" ~ r-l Page 3-5 Development Criteria Table 3-3 Development Standards - Detached Residential Us. Stll'C1~ (I L~=-- S -= \'C~ ft = feet sf = square feet 0UIIIc = dweIIng IIIiIII per lICRl NoIn: AI setbacks shall be measured fnlm the property IRe lD the slIIIc\\IIe unless otherwise noted. 1 Any lot wiIh a width d 35 ft or less lIhaII pnMde gmge ICCIlSS fnlm III 8IIey IIlIess on a IcJWdde or ClJl.de-sac. 2 For Imudde and cuJ.de.sac IoIs. the mininun lot width sh8I be met at 20 ft fnlm lhe front properly Ine. 3 ProjecIIons BIll an:tdecIInI feaUes that exIllnd ~ the Idding face. Projedions include features such as eaves chimneys bay wi\dows, staiIways, and other lIddIedural delBllng. ClIIifomia IluIdilg Code requiIements take precedence ,.r this ' requirement. . Habllable sInJclures (nongmge) may canIIever beyond lie g8lll!le door to the r.- properly fine. S Applies III habitBbIe sIrucIures only. Gnge projections are nllt pemItted. 6 Maxilum bulIding height is delined as the height tom Ole top of the finished grade to the top d the roof peak. An archlteclural projection such as a chinney or nonhabIIlIbIe tIMer may exceed the maxinIIIn buIdIng height by 10 II. 7 Buldllg separation Is measured from Ole exlIIrior WIll d a slIIICIure III the exlllrior waI II another structure. s Zero lot fine dMIopments are pennl\Illd Ilhe balance of the required seIIack is provided on the opposite side Yard of the same lot. 9 Tandem par\cing not penniIIed for shared, guest, or pubic parking. ,~ '-'" Page 3-6 June 2008 ?~fi Table 3-4 Development Standards - Attached Residential Uses Average density Density range 11.9 DUlac 9.1-15.0 DUlac in PAS & 13 9.1-17.0 DUlac in PA 10,14, & 20 16.8 DUlac 15.1-20.0 DUlac Building Site Specifications Miniinum site area Maximum site coverage (building footprint) . 2 acres 75% 2aeres 75% Setbad s F I om Extellor Public Street To.habitabIe structure ProJI!;tionsinto setback1 10ft 7ft 10ft 7ft Building SCP:1I1t 01' Front-to-frant separation Front-to-side sepntion Side, re., oblique sepntion ARey 20 ft avg. 20 ft avg. 15ft 15ft 10ft 10ft Either: (1) a 30 foot wide .ey (24-foot vAde paved area with a 3 foot apron on each side) is required in aIeys ., no parking, or (2) a 34 foot wide alley (28 foot Nde paved area with a 3 foot apron on each side) is required In aIeys wilh pa1cing. Other Maximum height 3 MInimum HvabIe area 40ft 40ft Studio - 550 sf 1 Bedroom - 700 sf 2 Bedroom - 900 sf 3 Bedroom-1,100sf 150 sf per unit 60 sf per unit Mininum dimension of 6 ft In any direction. Tandem pMdng Permitted in 30% of units Permitted in 30% of units It = feet II = square feet DUlac = dweIing unils per aae Notes: AI setbacks slid be IlI88&UI1ld from lhe back of lhe Ql/b to lhe sbuc:tu18 unless noted oIIeIwlse. 1 Projec:Iions ft a'd1lIedural fealures that edend beyond Ihe buiIdlng face. Projedions lnc:Iude fealures such as eaves. bay windows, sIlJiIways. porches.lIld oIher an:hif8c:lunII deCaIng. ProjecIlons shaI not..aoach wiIhin 3 It of the plllp8I1y line. 2 Buldng SIpII'lItion Is IIl8UIed fnJm lie exIIIrior.. of a sbudUl8 to the extIlrior... of analher sepanIllI slJucIure. The following may enc:roech inD the requi8d 1llpII8IIon: 1) .-chItedInI projec:tions, windcJw.baxes, and eaves-3 It, 2) covered pon:has lIld stDops-5 It, 3) baIc:onias and sIIlIway&-5 It 3 MaxInum building height Is deIinad as lhe height fnJm finished grade to the top of lhe roof peak, whichever Is gllllller. An II'ChIIec:IuraI projection such IS a chimey or llClIlhabllable tower may exceed lhe IIIlIlCimum buIdlng height by 10 feet. 4 See lhe open spllCll provisions In the MuJli.FamIy Open Space guidelines an page 3-13 for glllll8r deIaI and deIlnilion. 5 The clubhouse (planning area 7) and pubic partes (planning areas 1, 17. 19, and 21) count towards the required common open space requIremenl. MInimum c:onrnon open space 4,5 Min. private open space per unit 4 Development Standards for Other Uses Development standards for structures within the Oubhouse, Public Park, Open Space, Utilities, and Internal Slope land use categories are provided in Table 3-5. >;,.y'~' "-" University Hills Specific Plan 237 ~ ~ ~ el ~ ~ Page 3-7 c Development Criteria Table 3-5 Development Standards - Other Us.. - I I r- [1' _" I) It; : I[ J I S'cll I, II: t, SI ~ SI JI'O" Height of structure Setback of structure from property Hnes Page 3-8 238 40ft 20ft 15ft ,. 35ft 20ft 20ft 20ft 10ft .~..".b.",,"~~;""""'_ NA NA June 2008 ~ ~ ~ ~ riIiil n.~ l"~r~ 1'I?l1....~_ ATTACHMENT 5 """- John CollIe, Chair Larry HetUley, Vice-Chair Jim Mulvihill Lance Durr Andrew Machen Amelia S. Lopez James Eble George Rawls Dan C. Jimenez Bob Brown, All. CITY OF SAN BERNARDINO COMMUNITY DEVELOPMENT DEPARTMENT 300 North"D" Street, San Bernardino, California 92418 Phone: (909) 384-5057/5071 · Fax: (909) 384-5080 PLANNING COMMISSION MINUTES *DRAFf REGULAR MEETING MARCH 28, 2012 GENERAL PLAN AMENDMENT NO. 1l-04,'fENTATIVE PARCEL MAP No. 19330 (SUBDIVISION No. 11-02) & DEVELOPMENT PERMIT 2 NO. 11-04 DEVELOPMENT AGREEMENT NO. 12-01 GENERAL PLAN AMENDMENT NO. 12-02, TENTA.TIVE PARCEL MAP NO. 19369 (SUBDIVISION NO. 12-01), & DEVEL()PMENT PERMIT 2 NO. 12-02 CONDITIONAL USE PERMIT NO. 12-03 DEVELOPMENT CODE AMENDMENT NO. 12.,.02 '_.. '-" Page 1 of 11 03/28/2012 239 ,'-' "-' Chair Coute called the meeting to order at 6:00 p.m. Vice-Chair Heasley led the flag salute. Present: Commissioners Coute, Durr, Heasley, Jimenez, Lopez, Machen, Mulvihill and Rawls. Excused: Absent: Brown. Staff present: M. Margo Wheeler, Community Development Director; Henry Empefio, Jr., Senior Deputy City Attorney; Tony Stewart, City Planner; Aron Liang; Senior Planner and Daren Maynard, Planning Aide. ADMINISTRATION OF OATH Aron Liang administered the oath. CONSENT AGENDA: M. Margo Wheeler, Community Development Director, recommended the meeting minutes of February 22,2012 for approval. Chair Coute made a motion to approve the meeting minutes of February 22,2012. The motion carried by the following vote: Ayes: Coute, Durr, Heasley, Jimenez, Lopez, Machen and Mulvihill. Nays: None. Abstain: Rawls. Absent: Brown. PUBLIC COMMENTS - ITEMS NOT ON AGENDA "- No comments. PUBLIC HEARINGS 2. GENERAL~LAN~AMENDMENTNO.ll-04. TENTATIVE PARCEL MAp No. 19330 (SUBIfIVISIONNo.ll-021&DEVELOPMENT PERMIT 2 NO. 11-04 - A request to change the land use designation of approximately 37.18 acres from PCR, Public Commercial Recreation and CH, Commercial Heavy to IL, Industrial Light, and to subdivide the site into 3 parcels for development of four industrial buildings, totaling 727,710 square feet. The project site is an irregular configuration, with the main portion of the site bounded by Arrowhead Avenue to the west, Esperanza Street and its extension.. on the north, a flood control channel on the east, and Central Avenue to the south. In addition, portions of the project site are also located south of Central Avenue, at the southeast comer of Central A venue and Arrowhead Avenue, and in an area that extends north of the main site between the extension of Esperanza Street and Mill Street. Environmental Determination: Owner: Applicant: APN's: Ward: Environmental Impact Report National Orange Show Lewis Retail Centers c/o Timothy C. Reeves 0136-472-01,02 & 0136-492-01 3 c Page 2 of 11 03/28/2012 240 /:-1-""'. \.......r Aron Liang, Senior Planner, gave a brief presentation on the project. Timothy Reeves, 11156 North Mountain Avenue, Upland, CA, Project Applicant, introduced himself to the Planning Commission and welcomed questions from the Commission and the public. Chair Coute asked if citrus trees could be added to the landscaping design on the project. Timothy Reeves said orange trees could be planted along Central Avenue. Commissioner Lopez asked if additional parking would be created for events that could attract large crowds. Timothy Reeves said the nearby Arrowhead Stadium had offered to accommodate parking for large events and the Orange Show also has various parking lots throughout the fairground. Commissioner Machen made a motion to recommend that the Mayor and Common Council Certify the Environmental Impact Report (SCH #201107017), Adopt the Facts, Findings and Statement of Overriding Considerations, Adopt the Facts, Findings and Statement of Overriding Considerations, Adopt the Mitigation MonitoringlReportingProgram and Approve General Plan Amendment No. 11-04, Tentative Parcel Map No. 19330 (Subdivision No. 11-02) and Development Permit 2 No. 11.,04 based 011 the findings of fact in the Staff Report and subject to the Conditions of Approval, as amended to add orange trees along Central Avenue. Commissioner Heasley seconded the motion. The motion carried by the following vote: Ayes: Coute, DUIT, Heasley, Lopez, Machen, Mulvihill and Rawls. Nays: None. Abstain: Jimenez. Absent: None. 3. DEVELOPMENT AGREEMENT NO. 12-01 - A request to consider a Development Agreement between the City of San Bernardino and the developer of the University Hills Specific Plan. Ward: Certified Environmental Impact Report # 2007071155 Inland Communities Corp., Attn: John Snell John Snell 0265-011-06-08,0265-021-13,0265-041-12,0265- 051-09,12,13,0265-061-16 5 Environmental Determination: Owner/Applicant: Representative: APN: M. Margo Wheeler, Community Development Director, gave a detailed description on the project. r \.-. Henry Empeiio, Senior Deputy City Attorney, pointed out recommended revisions to the staff report and gave background information on the University Hills Specific Plan. Page 3 of 11 03/28/2012 241 C Chair Coute said he had concerns about the project because of the negative current housing market. John Snell, 650 E. Hospitality Lane, Ste. 140, Project Applicant, introduced himself to the Planning Commission and explained why the Development Agreement was proposed. Commissioner Mulvihill asked for clarification on specific areas of the project site that California State University San Bernardino was proposing to develop units on and what areas the project applicant was proposing to develop. Chair Coute asked if the original agreement detailed what land California State University San Bernardino intended to use for development. Henry Empeiio explained that the original agreement presented in 2008 contained information regarding California State University San Bernardino. Commissioner Heasley inquired about the terms of extending of the Development Agreement. Henry Empeiio explained options regarding amending the language of the Development Agreement in regards to extensions and performance requirements. ,Mh_ \- Chair Coute stated that he was not in opposition of the extension process but had concerns about the language in the agreement regarding automatic extensions. Commissioner Mulvihill explained that he would be in favor of changing the language regarding an automatic extension to reflect that an extension of the Development Agreement may be approved subject to.PlanningCommissionor Mayor and Common Council review. John Snell stated his concerns regarding the vagueness of the proposed language change and inquired about the approval process of an extension. Henry Empeiio explained that language could be added to reflect the Mayor and Common Council as the approval authority of an extension to the Development Agreement. Frank Rhodes, 370 Edgerton Drive, Crestline Soaring Society, introduced himself to the Planning Commission and expressed his concerns regarding recreation equipment interfering with the adjacent hang glider park. He stated that if the developer were interested in donating 2.5 acres, the club would be willing to maintain and irrigate the facility for public use. Commissioner Mulvihill asked Mr. Rhodes if the landing area for the adjacent air park had been relocated and if there would be less interference for the hang gliders at the new landing area. Frank Rhodes explained the landing requirements for the hang glider park and the concerns of associated telephone poles and light standards in the area. ............ Kathy Rhodes, 370 Edgerton Drive, Crestline Soaring Society, introduced herself to the Page 4 of 11 03/28/2012 ?4? ;~ \..... Planning Commission and shared information about the international recognition of the hang gliding facility. Kevin Williams, 3165 Ben Canyon, Crestline Soaring Society, introduced himself to the Planning Commission and invited the Commission to visit the hang gliding facility. He stated that he still had unaddressed concerns regarding the safety of hang glider pilots during landing, due to the development plans. Megret Olewiler, 27522 Cedarwood Drive, Lake Arrowhead, CA, Crestline Soaring Society, introduced herself as . the President of the Crestline. Soaring Society and shared her concerns regarding the injury of spectators in the proposed park under the hang glider landing zone flight path and adjacent structures proposed near the landing zone. She stated that the Crestline Soaring Society would like to be involved in the development of the park. Chair Coute inquired with whether the landing zone for hang gliding was owned by the Crestline Soaring Society or if it was leased. Megret Olewiler stated that the land was leased in. p~etuity from the Department of Water Resources and clarified that hang gliders have bought neighboring properties in the area. Chair Coute inquired about the size of the landing area. Megret Olewiler stated that the landing area was approximately 4.5 acres and explained the needs for hang glider landing. Commissioner Mulvihill explained that the developer has made accommodations for the hang gliders and inquired about what concerns have not been resolved. Megret Olewiler explained her concerns regarding obstacles near the landing zone and spectator observation areas. Commissioner Mulvihill encouraged Mr. Olewiler to work with Mr. Snell on landscaping preferences for the proposed park. John Snell stated that he appreciated the comments by the hang gliders and discussed his previous experience with working with hang gliders. Commissioner Durr inquired on who was responsible for the park in question and whether there was a way to make modifications to the park's landscaping. John Snell explained that the park was currently planned to be under the responsibility of a home owner's association and that he did not have objections regarding minimizing the improvements and obstacles. ~ '-" Commissioner Lopez brought up concerns about waiving impact fees. Page 5 of 11 03/28/2012 243 ^;,,,,,~_"~.#o..~.;.."IJ)J' ..o!t.'H.,,~....i<"'Ii>>I"_V"'f~""'"'~"""'''''_'''''''_''''''''';;'''''''''''''~'~''","',,",,"_0,.'.;"", ( .,,-. --. '- Commissioner Coute discussed development fees. Chas Kelly, 5066 N. Varsity Avenue, introduced himself and stated that he values the role of the Planning Commission. Mr. Kelly described potential benefits of the project will bring to the City of San Bernardino and stressed the importance that the City meet the needs of all residents. Kathy Rhodes, expressed her concerns that may arise if the property were transferred to a new owner. Commissioner Mulvihill made a motion to recommend approval of Development Agreement No. 12-01 with Exhibits H-K., based upon the Findings of Fact contained in the Staff Report, with the modifications made by the Planning Commission, to the Mayor and Common COuncil. M. Margo Wheeler indicated amendments to pages 9,11, 22 and 23 adding corrected Exhibit D and the two CSUSB agreements. Commissioner Mulvihill agreed to the amendments. Commissioner Rawls seconded the motion. The motion carried by the following vote: Ayes: Coute, Heasley, Jimenez, Lopez, Machen, Mulvihill and Rawls. Nays: Durr. Abstain: None. Absent: Brown. 4. GENERAL PLAN AMENDMENT NO. 12-02. TENTATIVE PARCEL MAP NO. 19369 (SUBDIVISION NO. 12-0n. & DEVELOPMENT PERMIT 2 NO. 12-02 - A request to amend the land use district of 14.52 acres from a split Industrial ~~.~~~~.~~~~~~~~~~ and merge 14 parcels into one parcel, and construct a 345,802-square foot warehouse building, located on the east side of W aterman Avenue, approximately 300 feet south of Mill Street. Environmental Determination: Owners: Mitigated Negative Declaration YSI XXXXVII LLC, Buckthorn Trust, Che Leng Tang, Che Phey Tang & Westbay Holdings LLC Hillwood Investments 0136-393-01 & 08, 280-011-05, 24, 26, 28, 30,32, 38,39,40,41,42 1 Applicant: APN: Ward: Tony Stewart, City Planner, gave a brief description ofthe project. John Schaefer, 268 W. Hospitality Lane, Suite 105, Hillwood Investment Properties, Project Applicant, introduced himself to the Planning Commission and explained the importance of the project. C Commissioner Rawls asked the applicant if Cott Beverage would be relocating the existing Page 6 of 11 03/28/2012 244 T ..fT a . JJ l"lo.-IlIL_:~U.___~' r t ,..-, \......... facility. John Schaefer explained that the new space would allow the business to expand. Joe Bundura, 673 S. Waterman Avenue, introduced himself to the Planning Commission as a nearby property owner and expressed his support of the proposed project. Commissioner Heasley stated that he appreciated the improvements proposed and the increased positive appearance it will bring to the area. Commissioner Mulvihill made a motion to recommend approval of General Plan Amendment No. 12-02, Tentative Parcel Map No. 19369 (Subdivision No. 12-01) and Development Permit 2 No. 12-02, and the Mitigated Negative Declaration and Mitigation Monitoring/Reporting Program prepared for the project, as amended with the supplemental information provided by staff, and based upon the Findings of Fact contained in the staff report and subject to the Conditions of Approval to the Mayor and Common Council. Vice-Chair Heasley seconded the motion. The motion carried by the following vote: Ayes: Coute, DUff, Heasley, Jimenez, Lopez, Machen, Mulvihill and Rawls. Nays: None. Abstain: None. Absent: Brown. M. Margo Wheeler informed the Planning Commission that the three items acted upon by the Planning Commission, so far, would be scheduled for the Mayor and Common Council on April 16,2012. 5. CONDITIONAL USE PERMIT NO. 12..03 - A request to construct a new Wireless telecommunications facility with a 65-foot tall, camouflaged monopalm tower and associated equipment stored within an existing commercial building, located at 1702 N. "D" Street and 420 W. lth Street in the Commercial Office (CO) and Residential Suburban (RS) land use districts. Environmental Determination: Exempt from CEQA, Section 15303 - New Construction of Small Structures Zecharia & Malca Hovav John G. Beke, MetroPCS 0145-091-01,25 2 Owner: Applicant: APNs: Ward: Tony Stewart, City Planner, gave a brief description of the project. ,I"*' '-' John G. Beke, 2280 Market Street, Suite 320, MetroPCS, Project Applicant, introdUCed himself to the Planning Commission and explained the importance ofthe project. Mr. Beke noted his disagreement with Conditional of Approval #16, regarding the requirement to install the coax cable inside the existing structure. Page 7 of 11 03/28/2012 245 ~." ~ ,< .1.1 Ji. T '..,;L4,'",' .,,'t ,...".. ,~ L John Matley, 380 W. 17th Street, provided a prepared document to the Planning Commission, discussing objections of neighborhood residents and explained his disagreement with the Findings of Fact listed in the Staff Report. Commissioner Lopez inquired about whether the property owner has been contacted about property maintenance of the existing facility. John Matley explained to the Planning Commission that the neighborhood has not been able to get ahold of the property owner regarding maintenance issues and have not had a chance to meet with the applicant. Commissioner Jimenez inquired about how many residents were represented in the neighborhood. John Matley explained that 2 or 3 of the residents have submitted letters of opposition and approximately 6 or 7 neighbors in the immediate area have expressed concemto them. Commissioner Lopez complimented the homes in the neighborhood and stated that she Was aware of property maintenance issues on the subject property. Debbi Matley, 380 W. 17tb Street, introduced herself as the local neighborhood association president and spoke about the architectural and historic'significance of the area. She expressed concerns regarding decreased property values and quality oflife. Zecharia Hovav, 1633 GlenwoodAvenue, Upland, CA 91784, introduced himself to the Planning Commission as the property owner, and expressed his support of the proposed project. Mr. Hovav also stated an. objection to Condition of Approval #16. Commissioner Mulvihill, asked Mr. Hovav ifhe's ever met with local residents regarding their concerns. Zecharia Hovav stated that he had never been contacted by residents regarding concerns and that he would support having a working relationship with local neighbors. Mr. Hovav provided information on previous and future improvements to the properties. Commissioner Lopez inquired with the property owner on whether the property was occupied or vacant. Zecharia Hovav stated that the property had current tenants operating business but that the buildings were not fully occupied at the current time. Chair Coute inquired on the percentage of occupancy the structures have currently. Zecharia Hovav clarified that approximately 55 to 60 percent of the units were occupied. C Daisy Kirkinon, 430 W. 17th Street, introduced herself to the Planning Commission as the Page 8 of 11 03/28/2012 246 ,"'i""""""""';"-';"'''''''.''4'~'l1''''~. . ," ~. .~.! \f :,.. . .~. 1't .,U'f~_.'iI/.. "'f'''' ,.,..-, closest resident to the project site. Ms. Kirkmon stated that she has lived in her home for more than 25 years and expressed her concerns regarding health and safety to herself and her great grandchildren. \......- Commissioner Mulvihill asked Ms. Wheeler about the density of the palm fronds camouflaging the monopole. M. Margo Wheeler stated that Condition of Approval #13 addressed this matter. Commissioner Jimenez inquired about what the positive economic impact the proposed project will have on the City. John G. Beke, Project Applicant, explained the positive impacts to MetroPCS customers in San Bernardino. Mr. Beke explained the frequencies used by separate wireless carriers and refuted the claim that the facility will negatively affect the service provided by other carriers. Commissioner Rawls asked staff for comments or concerns regarding the modification of Conditional of Approval #16. Tony Stewart explained that the applicant has not provided any reason, beyond inconvenience, that the coax cable cannot be installed inside the existing building. Commissioner Rawls asked staffjf any other alternatives were agreed upon with the ""- applicant. Tony Stewart noted that since evidence indicating the condition was not structurally feasible has not been provided, staff stands by Condition of Approval, as written. Commissioner Lopez inquired about the impacts on the beauty and historical nature of the area. M. Margo Wheeler discussed the Findings of Fact with the Planning Commission that the Conditional Use Permit is required to meet for approval and that if the Commissioners could not make those findings, then denial of the project is required. Commissioner Jimenez inquired on whether any other similar wireless facilities were located in residential areas. Tony Stewart indicated that similar wireless facilities near residential areas did exist. Henry Empeiio advised the Planning Commission on federal laws that prevent the denial of wireless telecommunication facilities solely on health effects. Vice-Chair Heasley made a motion to deny Conditional Use Permit No. 12-03. r-' Commissioner Jimenez seconded the motion. ~ Page 9 of 11 03/28/2012 247 llU MLWW t'_. _H_Ui ,IT 1 :_c: r ,,If_Il__ - ~~~~'" ";~",'~~",,,!_'''''''''>2'''h'___'''''''''~-'''''''-'' _....,..._~"-~,."_"""".....~" ~. .:.~ !il!l.lttir r- \.- '~. ~ \.., The motion carried by the following vote: Ayes: Coute, Heasley, Jimenez, Lopez, Machen, Mulvihill and Rawls. Nays: Durr. Abstain: None. Absent: Brown. M. Margo Wheeler explained that the action was final in absence of an appeal submitted within the next 15 days. 6. DEVELOPMENT CODE AMENDMENT NO. 12-02 - A proposal to amend Chapters 19.20 and 19.62 of the Development Cod.e to allow additions to existing buildings under 2,500 square feet to be exempt from meeting new development standards for the entire existing structure and~llow for nonconforming uses to retain their current status for 72 months rather than 12 months, and eliminate automatic abatement requirements for nonconforming uses. Proposed by: Environmental Recommendation: City of San Bernardino Exempt from CEQA -'Section 15061(b)(3) M. Margo Wheeler, Community Development Director, gave a detailed presentation of the proposed Development Code Amendment. Vice-Chair Heasley made a motion to recommend that the Mayor and Common Council approve Development Code Amendment No. 12-02 based on the Findings of Fact contained in the Staff Report. Commissioner Machen seconded the motion. The motion carried by the following vote: Ayes: Coute, Durr, Heasley, Jimenez, Lopez, Machen, Mulvihill and Rawls. Nays: None. Abstain: None, Absent: Brown. M. Margo Wheeler infOm1edthe Planning Commission that the item will be scheduled for the Mayor and Common Council onMay 7,2012. PLANNING COMMISSION REPORTS/ANNOUNCEMENTS None. DIRECTOR'S REPORT M. Margo Wheeler informed the Planning Commission of an upcoming webinar on May 16, 2012 in conjunction with the Historic Preservation Commission. ADJOURNMENT Commissioner Coute made a motion which was unanimously carried, to adjourn the Planning Commission meeting at 9: 15 p.m. The next regular meeting was scheduled for Wednesday, Page 10 of 11 03/28/2012 ?LlR n:~1iI...L-_ :.''l.lffC I..J ",~X_jI>-T ~~~~.,-"-'-" ~.~" \..-. April 25, 2012 at 6:00 p.m. in the Council Chambers, First Floor, 300 North "D" Street, San Bernardino, California. Minutes Adopted by Planning Commissioners: Date Approved: Minutes Prepared by: Melissa Thurman Executive Assistant Page 11 ofll 03/28/2012 249 .r-- \.... '- c RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: City of San Bernardino Attn: City Manager 300 North "D" Street, 6th Floor San Bernardino, California 92418 ATTACHMENT 6 (SPACE ABOVE FOR RECORDER USE) NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 BETWEEN FONTANA CORNERS III AND CITY OF SAN BERNARDINO 250 [Type text] !,'!lliI'_~ NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 "'- THIS NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 ("Notice") is made as of this _ day of April, 2012, by and between (i) the CITY OF SAN BERNARDINO, a municipal corporation organized and existing under the laws of the State of California (the "City"), and (ii) FONTANA CORNERS 111, L.P., a California limited partnership (the "Property Owner"), pursuant to the authority therefore set forth in Sections 65864 through 65869.5 of the California Governmen1 Code and action of the City as established by Resolution No. _ adopted by the City on April-, 2012 (the "2012 Resolution"). City and Property Owner are each sometimes referred to herein as a "Party" and jointly as the "Parties. " A. City and Property Owner have heretofore, on or about February, 1993, entered into that certain Development Agreement (the" 1993 Development Agreement"), which the City approved pursuant to Resolution No. 93-45 on February 24, 1993, and which the City caused to be recorded on , 1993 in Book _, Pages _ et seq. of Official Records in San Bernardino County, California. B. The 1993 Development Agreement described the real property on which it was recorded as that certain real property located in the City, County of San Bernardino, California, '-' more particularly described in Exhibit "A" hereto (the "1993 Development Property"). C. Property Owner has proposed to City, and City and Property Owner have negotiated the terms of, a new Development Agreement (the "2012 Development Agreement") which City and Property Owner understand and agree will fully and completely take the place of the 1993 Development Agreement for all purposes as they relate to the 1993 Development Property, and therefore, City and Property Owner agree that, included within the City's adoption of the 2012 Resolution approving the 2012 Development Agreement, City will acknowledge for the record that the 1993 Development Agreement has expired, and will direct the recordation of this Notice. NOW, THEREFORE, based on the above Recitals, and including specifically, the approval by the City of the 2012 Development Agreement, the Parties agree as follows: 1. City has approved the 2012 Development Agreement pursuant to the 2012 Resolution. 2. The Parties hereby acknowledge that the 1993 Development Agreement expired on or about March 24,2008, and by recording this Notice, it is the intent of the Parties to render the 1993 Development Agreement of no further force or effect as to the 1993 Development Property or any other property. c WCH\30610.0001\415363.24/181.2012 251 . ,O"""",;''''.'l',,.qr.''' , '. j' ;t;.a l._~~:'llI.'~ ,_ ;0.0;.!1~~,;';-.."'" 4"~"" , '- """"- .'"- ~ [Type text] 3. The Parties agree that, as a matter of further assurances, if at a later date any question should arise as to the legal effectiveness of this Notice as to the 1993 Development Property, or the lien of the 1993 Development Agreement thereon, the Parties will cooperate in giving such further written assurances as might reasonably be necessary to clear title to the 1993 Development Property from the lien of the 1993 Development Agreement. IN WITNESS WHEREOF, the Parties have executed this Notice, to be effective as set forth herein above. "PROPERTY OWNER" FONTANA CORNERS 111, L.P., a California limited partnership By: ARADI, LTD., a Nevada corporation, its General Partner By: WCH\3061 0.0001\415363.2 4/1812012 "CITY" CITY OF SAN BERNARDINO, a municipal corporation By: Charles McNeely, City Manager APPROVED AS TO FORM. James F. Penman, City Attorney .~ 252 RECORDING REQUESTED BY,AND WHEN RECORDED,MAIL TO: City of San Bernardino Attn: City Manager 300 North"D" Street, 6th Floor San Bernardino, California 92418 (SPACE ABOVE FOR RECORDER USE) NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 BETWEEN FONTANA CORNERS III AND CITY OF SAN BERNARDINO 250 NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 THIS NOTICE OF EXPIRATION OF DEVELOPMENT AGREEMENT NO. 91-03 ("Notice") is made as of this 19th day of April, 2012, by and between(i)the CITY OF SAN BERNARDINO, a municipal corporation organized and existing under the laws of the State of California(the"City"), and (ii) FONTANA CORNERS 111, L.P., a California limited partnership (the "Property Owner"), pursuant to the authority therefore set forth in Sections 65864 through 65869.5 of the California Government Code and action of the City as established by Resolution No. 2012-70 adopted by the City on April 19th, 2012 (the "2012 Resolution"). City and Property Owner are each sometimes referred to herein as a"Party" and jointly as the "Parties." A. City and Property Owner have heretofore, on or about February, 1993, entered into that certain Development Agreement (the "1 993 Development Agreement"), which the City approved pursuant to Resolution No. 93-45 on February 24, 1993, and which the City caused to be recorded on April 5, 1993, Instrument No. 93-147609 of Official Records in San Bernardino County, California. B. The 1993 Development Agreement described the real property on which it was recorded as that certain real property located in the City, County of San Bernardino, California, more particularly described in Exhibit"A"hereto (the "1993 Development Property"). C. Property Owner has proposed to City, and City and Property Owner have negotiated the terms of, a new Development Agreement(the"2012 Development Agreement") which City and Property Owner understand and agree will fully and completely take the place of the 1993 Development Agreement for all purposes as they relate to the 1993 Development Property, and therefore, City and Property Owner agree that, included within the City's adoption of the 2012 Resolution approving the 2012 Development Agreement, City will acknowledge for the record that the 1993 Development Agreement has expired, and will direct the recordation of this Notice. NOW, THEREFORE, based on the above Recitals, and including specifically, the approval by the City of the 2012 Development Agreement,the Parties agree as follows: 1. City has approved the 2012 Development Agreement pursuant to the 2012 Resolution. 2. The Parties hereby acknowledge that the 1993 Development Agreement expired on or about March 24, 2008, and by recording this Notice, it is the intent of the Parties to render the 1993 Development Agreement of no further force or effect as to the 1993 Development Property or any other property. WCH\30610.0001\415363.2 4/18/2012 251 3. The Parties agree that, as a matter of further assurances, if at a later date any question should arise as to the legal effectiveness of this Notice as to the 1993 Development Property, or the lien of the 1993 Development Agreement thereon,the Parties will cooperate in giving such further written assurances as might reasonably be necessary to clear title to the 1993 Development Property from the lien of the 1993 Development Agreement. IN WITNESS WHEREOF,the Parties have executed this Notice,to be effective as set forth herein above. "PROPERTY OWNER" "CITY" FONTANA CORNERS 111, L.P., a California CITY OF SAN BERNARDINO,a municipal limited partnership corporation By: ARADI, LTD. a Nevada co•.'•ration, its By: Part,e i Alle arker, City Manager By: ( AP'ROVED AS TO FORM. r►n��2 /a-gq vv)vno u_((& LIU .t-- James F. Penman, City Attorney f ( NC- G Elv &--#(244 C_ PA/LT-NE'? (LA rar 4-7D G e-W L P/4/LTAEa, C io T A t A- cci tt E its 1 l 1 WCH\30610.0001\415363.2 4/18/2012 252 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 State of California V County of ,G�j7 Xfrni744 /4:41./G j iI >>97 �/) before me, /� /�i0/9A0(/�•6 1 1// , On/�y Date Here Insert Nape and Title of the Officer personally appeared / •e/ Ater Name(s)of Signer(s) )� C >> who proved to me on the basis of satisfactory evidence to be the person(s)-whose name(Wis/are yj ( subscribed to the within instrument and acknowledged >> to me that he/stteltpey executed the same in his/herthoir authorized capacity(iesi; and that by 0 his/her/their signature(sr on the instrument the persona)or the entity upon behalf of which the >> riddhlirauft,.,„. .di person fs acted, executed the instrument. >> -.., VALERIE R.MONTOYA K Commission*1985357 I certify under PENALTY OF PERJURY under the §!' 74:; Notary Public-California z,://4,1 San Bernardino County laws of the State of California that the foregoing �� '" M Comm.Expires Au 2.2016 Y paragraph is true and correct. V WITNESS my hand d official seal. V V Signature: Place Notary Seal Above Signature of Notary Public V OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. �l Description of Attached ' • men# � 4�,A y��/ ( Title or Type of Document: i#/C //40e rir/l 2 d/ ( Document Date: ,--/f Vii' Number of Pages: >> Sign- Other Than Named Above: > ( Capacity°- _ Claimed by Signer(s) >> Signer's Name: ; Signe Signer's Name: V CI Corporate Officer — Title s ❑Corporate Or' -r — Title(s): ( El ❑ Indi •al >> Individual ❑ Partner —❑Limited ❑General ig Partner —❑Limited ❑General ( ❑ Attorney in Fact IN Attorney in Fact >j ❑ Trustee ❑ r• -e >> ( ❑ Guardian or Conservator ❑Guardian • onservator ( ❑ Other: ❑Other: >> Signer Is Representing: >> Signer Is Re. enting: Si r g p g' i..� Item#5907 ©2012 National Notary Association •NationalNotary.org• 1-800-US NOTARY(1-800-876-6827) State of ) District of Columbia ) On this, the .e6O day of ,e/L , 20 / 3, before me a notary public, the undersigned officer, personally appeared / .r,LE/Z. h<Ril filtuXtcnown to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. h W/ ess hereof, hereunto set my hand and official seal. Lin, • L. Harrigan Notary Public