HomeMy WebLinkAbout29- Planning and Building Services CITY OF SAN BERN. _RDINO - REQUEST F,wR COUNCIL ACTION
Paradise Hills Specific Plan
From: Al Boughey, Director Subject: (Specific Plan 90-03 , General Plan
Amendment 91-07 and Development
Dept: Planning & Building Services Agreement 91-03)
Mayor and Common Council Meeting
Date: December 18 , 1992 February 1 , 1993
Synopsis of Previous Council action:
None.
Recommended motion:
That the hearing be closed and the resolution be adopted, in concept,
that certifies the EIR, adopts the Findings and Statement of Overriding
Considerations , adopts Mitigation Monitoring/Reporting Program, approves
the Specific Plan and General Plan Amendment and also the resolution
be adopted, in concept, that approves the Development Agreement and
the item be continued to February 15, 1993 for final action, pending
completion of revisions .
Al Boug Signature
Contact person: Al Boughey Phone: 384-5357
Supporting data attached: Staff Report, Resolution Ward: 5
FUNDING REQUIREMENTS: Amount: N/A
Source: (Acct. No.)
(Acct. Description)
Finance:
Council Notes:
29
Request for Council Action - Staff Report
SUBJECT AND REQUEST: Approval of Specific Plan No. 90-03 , General
Plan Amendment No. 91-07, and Development Agreement No.
91-03 .
Mayor and Common Council Meeting of February 1, 1993
PROJECT DESCRIPTION: A brief description of each project has been
provided below. A more complete description and analysis of each
application can be found in the Planning Commission staff reports,
Exhibit "A" .
Specific Plan No. 90-03
Specific Plan No. 90-03 (Paradise Hills Specific Plan) will
establish the framework for the development of a maximum of 504
single-family homes on 404 acres, a 5 acre public park and
approximately 189 acres of open space. The Specific Plan is a
general policy document that will further refine and implement the
General Plan Policies applicable to the project area. The Specific
Plan does this by establishing goals, objectives, policies, and
standards which form the framework for the orderly development of
the project site. The Plan includes provisions, standards and
policies for access and circulation, land use and unit density
transfer, public safety and public services, parks and open space,
landscaping, and community design.
General Plan Amendment No. 91-07
General Plan Amendment No. 91-07 affects approximately 110 acres of
the project site located outside of the General Plan Hillside
Management Overlay District (HMOD) . The amendment would change the
present RL, Residential Low General Plan land use designation of
the 110 acres to the RS, Residential Suburban General Plan
designation. The RS General Plan designation would permit a
smaller minimum lot size (7,200 square feet) and a greater density
(4.5 units per acre) than the RL General Plan designation (10,800
square feet minimum lot size and 3. 1 units per acre density) .
The purpose of the General Plan Amendment is to create a receiving
area within the limits of the project site to accept the transfer
of residential units from the HR, Hillside Residential areas of the
Specific Plan. The benefit of creating such a receiving area is
that potentially fewer residential units will be built in the
steeper, more environmentally sensitive hillside areas of the
project site.
Development Agreement No. 91-03
Development Agreement No. 91-03 would help implement the Paradise
Hills Specific Plan.
Paradise Hills Specific Plan
MCC 2-1-93
Page 2
KEY ISSIIES: The following key issues have been identified by
topic:
SPECIFIC PLAN ISSIIES
o The Specific Plan does not address the maintenance of the
fuel modification and open space areas. The issues
regarding the maintenance of the open space and fuel
modification areas reduce down to a single issue of
liability leaving only two options; (1) establishment of
a Homeowner's Association, or (2) establishment of an
assessment district. Staff recommends Option No. 2, the
establishment of an assessment district. The applicant
concurs. The Conditions of Approval recommended by the
Planning Commission have been revised to include a
condition requiring the applicant to revise the Specific
Plan to address the maintenance of the fuel modification
and open space areas through the establishment of an
assessment district.
o The City Fire Department has raised concern over the
Circulation Plan contained in the Specific Plan. As a
result, Alternative 4, described on page 3 of the Final
Environmental Impact Report (Exhibit "F") , was proposed.
The Fire Department, staff, and the Planning Commission
have all recommended Alternative 4 as the preferred
project circulation plan. A Condition of Approval has
been added to the list of Conditions recommended by the
Planning Commission at the November 17, 1992 Planning
Commission Meeting to revise the Specific Plan
Circulation Plan to be consistent with that proposed by
Alternative 4 . The Applicant concurs.
DEVELOPMENT AGREEMENT ISSIIES
o The Development Agreement contains language which appears
to vest the project to 504 units. Site geologic/seismic
constraints or other environmental factors could
ultimately result in unbuildable areas. A vested right
to a specific number of units coupled with large
unbuildable areas could place the City in a situation
where it would be forced to honor the agreement and
violate the General Plan density policies, or honor the
General Plan density policies and violate the agreement.
Paradise Hills Specific Plan
MCC 2-1-93
Page 3
o Concern has been expressed over the benefits afforded the
Developer under the Development Agreement in comparison
to the benefits the agreement would afford the City.
Some examples of the provisions provided in the agreement
to benefit the Developer include:
Section 10. 1, page 5 - Provisions that restrict the
City from enacting any ordinances or policies in
conflict with the Development Agreement or Specific
Plan. This includes any new General Plan Policies.
Section 10. 2 , page 5 - Provisions that restrict the
City from enacting any moratoriums which would
affect the project.
Section 11. 5, page 6 - Provisions that give the
developer access to Mello-Roos Community Facility
District (CFD) bonding mechanisms and other bonding
mechanisms to fund public improvements. Under the
Development Agreement the City would have no choice
in assisting the developer in obtaining bonding
under the developer's choice of bonding mechanisms.
Section 11.7 , page 7 - Provisions that exempt
development under the Specific Plan and Development
Agreement from any future fees established. As an
example, if the City were to establish a City-wide
solid waste fee for new development in order to
fund the construction of new recycling facilities,
any new application submitted under the Specific
Plan and Development Agreement would be exempt from
the fee. Other new development applications in the
City not part of the Specific Plan would be
required to pay the fee.
Section 11.9 , Page 7 - Provisions which require the
City to enter into a reimbursement agreement with
the developer to reimburse them for public
facilities constructed by the developer that
benefit other properties as well as the property
governed by the Specific Plan. This includes any
or all of the facilities listed by the developers
as benefits to the City in Section 3. 1 of the
Development Agreement.
Benefits to the City occur as a result of the project and
would likely occur regardless of whether or not the City
enters into an agreement with the Developer. The Mayor
and Common Council should consider these factors in
Paradise Hills Specific Plan
MCC 2-1-93
Page 4
determining whether or not to approve the Development
Agreement.
o The acquisition and construction of Pepper-Linden Drive
by the applicant has been discussed in several meetings
between the applicant and staff. While the Environmental
Impact Report has determined that Pepper-Linden is not
necessary for access to the project, its acquisition and
construction would alleviate some of the area circulation
concerns. This would benefit the City and should be
included as a provision in the Development Agreement (See
Exhibit "H") .
ENVIRONMENTAL ISSUES
o Concern has been raised regarding the adequacy of the
Biological Assessment portions of the Environmental
Impact Report (EIR) . Specifically, the methodologies
used by the Biological Consultant in conducting plant and
wildlife surveys of the site have been questioned by the
California Department of Fish and Game, and others. To
mitigate the concerns, the Planning Commission
recommended certification of the EIR subject to the
Condition that additional survey work related to
biological impacts, be conducted in compliance with
established California Environmental Quality Act (CEQA)
guidelines, and California Department of Fish and Game
(CDFG) guidelines prior to the approval of any phase of
development. A Condition of Approval has been added to
the list of Conditions recommended by the Planning
Commission requiring that this be incorporated into the
Mitigation Monitoring/Reporting Program.
ENVIRONMENTAL DETERMINATION
A brief history of the environmental process prior to hearing of
the project by the Planning Commission can be found in the May 5,
1992 Planning Commission staff report included in Exhibit "A".
The Environmental Impact Report identifies four impacts which
remain significant as a result of Specific Plan implementation.
They are regional air quality, biological resources, area
jobs/housing balance (population) and solid waste. The City cannot
approve the project given the significant impacts identified by the
EIR unless - it makes one or more written findings and prepares
Statements of Overriding Consideration for each of the significant
effects. The Statements of Overriding Consideration reviewed and
recommended by the Planning Commission have been included in the
attached Resolution, Exhibit "I". .
Paradise Hills Specific Plan
MCC 2-1-93
Page 5
As mentioned in the previous section, the adequacy of the
Biological Assessment contained in the Environmental Impact Report,
and the research/survey methodologies have been questioned by the
California Department of Fish and Game (CDFG) and others (See the
CDFG response letters of July 30, 1992 and September 4 , 1992,
Exhibit "G-1") . The project biological consultant's (Pacific
Southwest Biological Services) response dated September 1, 1992 is
also included in Exhibit 11G-111 . To resolve the apparent
"differences of opinion" between the CDFG and the project
biological consultant, the City retained the services of Tom
Leslie, of John Minch and Associates. The conclusions of Mr.
Leslie's review can be found in his letters dated November 13, 1992
and December 9, 1992, and are included in Exhibit 11G-111 .
On November 17, 1992 , the Planning Commission found the
Environmental Impact Report adequate, and recommended
certification, subject to the condition that additional survey work
related to biological impacts be required prior to the approval of
an phase of development, in compliance with established CEQA and
CDFG Guidelines for Biological Mitigation.
MAYOR AND COUNCIL OPTIONS: A Resolution has been prepared and is
included as Exhibit "A" for the approval of Specific Plan No. 90-
03 , General Plan Amendment No. 91-07, and Development Agreement No.
91-03.
The Mayor and Common Council may:
1. Certify the Environmental Impact Report, subject to the
Planning Commissions recommendation, and adopt the
Resolution approving Specific Plan No. 90-03, and General
Plan Amendment No. 91-07, and adopt the Resolution
approving Development Agreement No. 91-03 ; (Supports
Planning Commission's recommendation) .
2 . Approve Specific Plan No. 90-03 , General Plan Amendment
No. 91-07, and Development Agreement No. 91-03 in
concept, and require revision to any of the three
applications as deemed necessary by the Council, and
continue the projects for 90 days to make the necessary
revisions; or
3 . Deny Specific Plan No. 91-03, General Plan Amendment No.
91-07, and/or Development Agreement No. 91-03 .
PLANNING COMMISSION RECOMMENDATION: The Planning Commission
recommended that the Mayor and Council: (1) certify the EIR,
subject to the condition that additional biological survey work be
completed for the entire site prior to the approval of any phase of
V
Paradise Hills Specific Plan
MCC 2-1-93
Page 6
development; (2) approve Specific Plan No. 90-03 and General Plan
Amendment No. 91-07 ; and (3) approve Development Agreement No. 91-
03 in concept and require the applicant to revise the Development
Agreement to make clear that the 504 units are a theoretical
maximum, and to include the acquisition and construction of Pepper-
Linden as previously discussed with the applicant.
STAFF RECOMMENDATION: Staff recommends that the Mayor and Common
Council:
1. Adopt in concept the resolution which:
A. Certifies the Environmental Impact Report, subject
to the condition that additional mitigation
including additional survey work related to
biological impacts, as outlined in Appendix G of
the Final EIR, be required for the entire project
site prior to the approval of any phase of
development, pursuant to and in compliance with
established CEQA Guidelines, and established CDFG
Guidelines for Biological Mitigation.
B. Adopts the Environmental Findings for the Statement
of Overriding Consideration.
C. Adopts the Mitigation Monitoring and Reporting
Program.
D. Approves Specific Plan No. 90-03 and General Plan
Amendment No. 91-07, with the requirement that
revisions to the Specific Plan be made to include
the Conditions of Approval contained in Exhibit
nBn .
2 . Adopt in concept the Resolution which approves
Development Agreement No. 91-03, with the requirement
that the applicant revise the Development Agreement to
clarify that the 504 units are a theoretical maximum, and
to include the acquisition and construction of Pepper-
Linden as previously discussed with the applicant.
5. Continue the items until February 15, 1993 , so that the
revisions can be made to the Specific Plan and
Development Agreement for Final Approval.
0
Paradise Hills Specific Plan
MCC 2-1-93
Page 7
Exhibits: A - Planning Commission Staff Reports*
1. May 5, 1992
2 . July 7, 1992
3 . August 4, 1992
4 . October 6, 1992
5. November 17, 1992
B - Planning Commission Conditions of Approval
C - Paradise Hills Specific Plan (July 1991 with
revisions. *
D - Draft Environmental Impact Report (July 1991) *
E - Draft Environmental Impact Report Technical
Appendices (July 1991) *
F - Final Environmental Impact Report*
o Mitigation Monitoring and Reporting
Program
G - Appendix G to Final Environmental Impact Report*
G-1 - Biology Correspondence*
1. July 13, 1992 letter from Pacific
Southwest Biological Services (PSBS)
2. CDFG July 30, 1992 letter
3 . September 1, 1992 letter from PSBS
4. CDFG September 4, 1992 letter
5. November 13, 1992 letter from John Minch
& Associates (JMA)
6. December 9, 1992, letter from JMA
H - Department of Public Works Memorandum Regarding
Pepper-Linden Drive*
I - Resolution for the Certification of the EIR,
Adoption of the Statements of Overriding
Consideration and Mitigation Monitoring/Reporting
Program, and the approval of Specific Plan No.
90-03, General Plan Amendment No. 91-07, and
Development Agreement No. 91-03
* Note: These Exhibits were distributed to the Mayor and
Common Council under separate cover.
0 4
EXHIBIT "B"
CONDITIONS OF APPROVAL
The following changes shall be made to the Specific Plan Text:
1. The phasing of parks, trails, open space, and fuel
modification, and responsibility for maintenance shall be
illustrated in the tabular format shown in Attachment "D" of
this staff report and included in the implementation section
of the Specific Plan. The information in the table shall be
revised to reflect the responsible party for maintenance of
the open space and fuel modification areas as determined by
the Planning Commission.
2 . The implementation section shall be revised to require that
slope stability and landslide potential be addressed in all
subsequent geology studies addressing any portion of the
project site.
3 . The Specific Plan shall be revised to remove all references to
mountain biking and biking trails.
4 . The implementation section shall be revised to specify that
the developer shall notify a new owner of any subdivision lots
located within 500 feet of the San Bernardino Valley Water
District pipeline, at the time of the purchase agreement and
at the close of escrow of the location, size, and type of the
San Bernardino Valley Water District pipeline.
5. The implementation section shall specify the exclusion of
Planning Area 8 from the Specific Plan until such time that
LAFCO has approved the developers annexation request for
Planning Area 8, and said area is annexed into the City of San
Bernardino.
6. The developer shall negotiate the location of the helipad with
the forestry service and submit a letter of agreement between
the Forest Service, Fontana Corners III and any other involved
party. If said helipad is to be located within the City
Limits of San Bernardino, it must comply with all requirements
of the City's Development Code and General Plan, including the
submittal and approval of a Conditional Permit. The precise
design and location of the helipad must be environmentally
reviewed and approved prior to recordation of the first tract
map that creates buildable homesites in the Hillside
Residential (HR) area of the Specific Plan.
7. The applicant shall revise the text and exhibits to be in
conformance with the adopted alternative and all other changes
adopted by the City Council. A screencheck of the revised
document shall be submitted to the Planning Department within
30 days of approval of the Specific Plan application. The
screencheck shall be reviewed by City staff for accuracy in
terms of form and content of the changes specified in the
adopting resolution.
8 . The implementation section shall be revised to specify that
in the event the Specific Plan, or any project associated with
the Specific Plan, is legally challenged, the City will
promptly notify the applicant of any claim or action and will
cooperated fully in the defense of the matter. Once notified,
the applicant agrees to defend, indemnify, and hold harmless
the City, its officers, agents and employees from any claim,
action, or proceeding against the City of San Bernardino. The
applicant further agrees to reimburse the City of any costs
and attorneys' fees with the City may be required by a court
to pay as a result of any such action, but such participation
shall not relieve the applicant of his or her obligation under
this condition.
9. The implementation section shall be revised requiring the
submittal of a master tract map, prior to or concurrently with
the submittal of the first tentative tract map to create homes
within the Specific Plan. The text shall specify that the
master tract map delineate each of the approved planning areas
as a numbered lot, and the open space as lettered lots. The
master tract shall require the concurrent submittal of a
Conditional Use Permit. The Conditional Use Permit will
determine the number of allowable units available for transfer
from the open space areas, and establish a pool of these units
upon which future developments involving density transfers can
draw. The text shall also specify the use of the master tract
map and file for keeping track of the transfer of units from
the pool.
10. The implementation section shall be revised to include
provisions stating that wherever the Specific Plan is silent
any particular issue, the Development Code requirements
regarding that issue shall govern.
11. The first paragraph of Section 1. 1 on page 2 of the Specific
Plan shall be revised to read:
"The Paradise Hills Specific Plan conforms to the form and
content of Specific Plans as required by the City of San
Bernardino as set forth in _Chapter 19. 64 of the Development
Code. "
12. Principal Objective number 1 under Section 2 . 3 , Market and
Development Considerations, page 21 of the Specific Plan shall
be revised as follows:
"Prepare a development proposal that conforms to the goals and
policies of the City of San Bernardino General Plan. "
13. The Specific Plan text shall be revised to change all
terms of form and content of the changes specified in the
adopting resolution.
8. The implementation section shall be revised to specify that
in the event the Specific Plan, or any project associated with
the Specific Plan, is legally challenged, the City will
promptly notify the applicant of any claim or action and will
cooperated fully in the defense of the matter. Once notified,
the applicant agrees to defend, indemnify, and hold harmless
the City, its officers, agents and employees from any claim,
action, or proceeding against the City of San Bernardino. The
applicant further agrees to reimburse the City of any costs
and attorneys' fees with the City may be required by a court
to pay as a result of any such action, but such participation
shall not relieve the applicant of his or her obligation under
this condition.
9. The implementation section shall be revised requiring the
submittal of a master tract map, prior to or concurrently with
the submittal of the first tentative tract map to create homes
within the Specific Plan. The text shall specify that the
master tract map delineate each of the approved planning areas
as a numbered lot, and the open space as lettered lots. The
master tract shall require the concurrent submittal of a
Conditional Use Permit. The Conditional Use Permit will
determine the number of allowable units available for transfer
from the open space areas, and establish a pool of these units
upon which future developments involving density transfers can
draw. The text shall also specify the use of the master tract
map and file for keeping track of the transfer of units from
the pool.
10. The implementation section shall be revised to include
provisions stating that wherever the Specific Plan is silent
any particular issue, the Development Code requirements
regarding that issue shall govern.
11. The first paragraph of Section 1. 1 on page 2 of the Specific
Plan shall be revised to read:
"The Paradise Hills Specific Plan conforms to the form and
content of Specific Plans as required by the City of San
Bernardino as set forth in Chapter 19. 64 of the Development
Code. "
12 . Principal Objective number 1 under Section 2 . 3 , Market and
Development Considerations, page 21 of the Specific Plan shall
be revised as follows:
"Prepare a development proposal that conforms to the goals and
policies of the City of San Bernardino General Plan. "
13. The Specific Plan text shall be revised to change all
references to the Draft Development Code of the City of San
Bernardino to the Development Code of the City of San
Bernardino.
14 . Exhibit 14 on page 42 , the Paradise Drive cross-section shall
be revised to delete the grasscrete section adjacent to
Paradise Drive.
15. Exhibit 34 , on page 87, the roadway design superimposed on the
geological constraint map shall be revised to show the roadway
design ultimately approved or deleted from the exhibit
altogether.
16. Section 6. 1, Water Plan, shall be revised to include
requirements that any water reservoirs constructed to serve
the project be painted in a color to match the natural
hillside surrounding and be screened from view with native
trees and vegetation, per the request of USFS.
17. The Specific Plan Chapters dealing with open space and fuel
modification shall be revised to include the a discussion of
who will be responsible for ownership and maintenance of the
open space and fuel modification areas, once the mechanism for
ownership and maintenance of these areas is determined by the
Mayor and Common Council.
18 . All references to City review of architectural design through
Precise Plans of Design in Section 9. 0, page 138 of the
Specific Plan shall be deleted and reference made to the
City's Development Permit application process as specified in
Chapter 19.44 of the Development Code, and to the City's
Threshold of Review, Table 31. 01 in the Development Code.
19. The maintenance of all fuel modification zones and open space
shall be addressed in the implantation section of the Specific
Plan.
20. The Circulation Plan contained in the Specific Plan shall be
revised to be consistent with Alternative 4 , as described in
the Final EIR.
21. The implementation section of the Specific Plan and the
Mitigation Monitoring and Reporting Program shall be revised
to include the requirements for the additional biological
surveys.
0
1 RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO CERTIFYING THE
ENVIRONMENTAL IMPACT REPORT; ADOPTING FINDINGS AND STATEMENTS OF
3 OVERRIDING CONSIDERATION AND MITIGATION MONITORING/REPORTING
PROGRAM; ADOPTING SPECIFIC PLAN NO. 90-03 (PARADISE HILLS) ;
4 ADOPTING GENERAL PLAN AMENDMENT NO. 91-07 ; AND AUTHORIZING THE
EXECUTION OF DEVELOPMENT AGREEMENT NO. 91-03 .
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. RECITALS.
8 A. WHEREAS, the Mayor and Common Council adopted the General
9 Plan for the City of San Bernardino by Resolution No. 89-159 on
10 June 2 , 1989; and
11 B. WHEREAS, the General Plan made provisions for the
12 adoption of specific plans to further implement the goals,
13
objectives and policies; and I
14 C. WHEREAS, the Paradise Hills Specific Plan No. 90-03 for
15 the development of 404 acres located northeast of California State
16 University San Bernardino, at the mouth of Badger Canyon has been
17 drafted for the Mayor and Common Council's consideration. The
18 Specific Plan includes General Plan Amendment No. 91-07, which will
19 change the General Plan land use designation on 110 acres from RL,
20 Residential Low to RS, Residential Suburban; and
21 D. WHEREAS, on March 19, 1992 The Development Review
22 Committee recommended clearance of the Specific Plan, the General
23 Plan Amendment and Development Agreement for hearing by the
24 Planning Commission; and
25 E. WHEREAS, on August 30, 1990 the Environmental Review
26 Committee determined that the Specific Plan, the General Plan
27 Amendment, and the Development Agreement may have a significant
28
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1 effect on the environment and thus warranted the preparation of an
2 Environmental Impact Report (EIR) pursuant to the California
3 Environmental Quality Act (CEQA) ; and
4 F. WHEREAS, a Draft Environmental Impact Report was prepared
5 to address Specific Plan No. 90-03, General Plan Amendment No. 91-
6 07 and Development Agreement No. 91-03 other alternatives' impacts
7 in compliance with CEQA and local regulations; and
8 G. WHEREAS, the Draft EIR was made available to the public,
9 responsible agencies and other interested persons for their review
10 and comment from July 26, 1991 to September 9, 1991, as required by
11 CEQA; and
12 H. WHEREAS, verbal and written comments were received on the
13
Draft EIR; and I
14 I. WHEREAS, these comments were responded to both orally and
15 in writing as required by CEQA; and
16 J. WHEREAS, the Planning Commission held a public workshop
17 on September 17, 1991 to receive additional comments on the Draft
18 EIR; and
19 K. WHEREAS, the Planning Commission conducted noticed public
20 hearings on May 5, 1992, August 4, 1992, and November 17, 1992 in
21 order to receive public testimony and written and oral comments on
22 the EIR, Specific Plan, General Plan Amendment, and Development
23 Agreement; and
24 L. WHEREAS, the proposed Mitigation Monitoring/Reporting
25 Program was reviewed by the Planning Commission in compliance with
26, CEQA.
2 7 I
2S!
2
1 M. WHEREAS, the Planning Commission, after receiving public
2 testimony, recommended certification of the Environmental Impact
3 Report, adoption of the Findings and Statements of Overriding
4 Consideration, adoption of the Mitigation Monitoring/Reporting
5 Program, approval of Specific Plan No. 90-03 , approval of General
6 Plan Amendment No. 91-07, and approval of Development Agreement No.
7 91-03 ; and
s N. WHEREAS, the Mayor and Common Council conducted a noticed
9 public hearing on February 1, 1993 and fully reviewed and
10 considered the Final EIR, the Mitigation Monitoring/Reporting
11 Program, the Findings and Statements of Overriding Consideration,
12 the Specific Plan, the General Plan Amendment, the Development
13
Agreement, the Planning Division/ staff reports and the
14 recommendation of the Planning Commission;
15 SECTION 2. ENVIRONMENTAL.
16 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL HEREBY CERTIFY:
17 (A) The Final Environmental Impact Report for Specific Plan
is No. 90-03, General Plan Amendment No. 91-07, and Development
19 Agreement No. 91-03, Paradise Hills, has been completed in
20 compliance with the California Environmental Quality Act;
21 (B) The Final Environmental Impact Report was presented to
22 the Mayor and Common Council who have reviewed and considered the
23 information in the Environmental Impact Report prior to adopting
21 the Paradise Hills Specific Plan (SP NO. 90-03) , General Plan
25 Amendment No. 91-07, and Development Agreement No. 91-03 . The
26 Final Environmental Impact Report and all the evidence and
I information contained therein is attached hereto as Attachment 1
271
2s
1
3
i
4
1 (Exhibits D, E, F, G, and G-1 of the February 1, 1993 Mayor and
2 Common Council Staff Report) and incorporated herein by reference.
3 ; Attachment 1 consists of the following documents:
4 Exhibit D - Draft Environmental Impact Report (July 1991)
5 Exhibit E - Draft Environmental Impact Report Technical
6 Appendicies (July 1991)
7 Exhibit F - Final Environmental Impact Report
s Mitigation Monitoring and Reporting Program
9 Exhibit G - Appendix G to Final Environmental Impact Report
10 Exhibit G-1 - Biology Correspondence;
11 (C) The Findings contained in the Statements of Overriding
12 Consideration with respect to the significant impacts identified in
13 the Final EIR are true and correct, and are based upon substantial
14 evidence in the record, including documents comprising the Final
15 EIR. The Findings and Statements of Overriding Consideration are
16 attached hereto as Attachment 2 and are incorporated herein by
17 reference.
is (D) The Final Environmental Impact Report, the Mitigation
19 Monitoring/Reporting Program and the Findings and Statements of
20 Overriding Consideration reflect the independent review and
21 analysis and the independent judgement of the City of San
22 Bernardino.
23 (E) The Final EIR has identified all significant
24 environmental effects of Specific Plan No. 90-03, General Plan
25 Amendment No. 91-07, and Development Agreement No. 91-03, and
26 there are no known potentially significant environmental effects
271 not addressed in the Final EIR.
28I
4
i (F) Although the Final EIR identifies certain significant
2 environmental effects that would result if Specific Plan No. 90-03 ,
3 General Plan Amendment No. 91-07, and Development Agreement No. 91-
4 03 are adopted, all significant effects that can feasibly be
5 avoided or mitigated will be avoided or mitigated by the
6 implementation of the mitigation measures as set forth in the
7 Mitigation Monitoring/Reporting Program for the Final EIR.
g (G) Potential mitigation measures and project alternatives
9 not incorporated into or adopted as part of the Specific Plan,
10 General Plan Amendment, or Development Agreement were rejected as
11 infeasible, based on specific economic, social or other
12 considerations as set forth in the Findings and Statements of
13
Overriding Consideration. ,
14 (H) The Mayor and Common Council have given great weight to
15 the significant unavoidable adverse environmental impacts. The
16 Mayor and Common Council find that the significant unavoidable
17 adverse impacts are clearly outweighed by the economic, social and
is other benefits of the Specific Plan, the General Plan Amendment,
19 and the Development Agreement as set forth in the Findings and
20 Statements of Overriding Considerations.
21 SECTION 3. FINDINGS SPECIFIC PLAN.
22 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
23 City of San Bernardino that:
24 (A) Specific Plan No. 90-03, Paradise Hills, is consistent
25 with the General Plan, in that it refines and implements General
26 Plan objectives and policies applicable to the project site.
27,
23
5
1
1 (B) The Specific Plan will ensure development of desirable
2 character which will be compatible with existing and proposed
3 development in the surrounding area in that the Specific Plan will
4 be implemented subject to the requirements contained therein.
5 (C) The Specific Plan area, including the General Plan
6 Amendment area, is physically suitable for the requested land use
j designation and the anticipated development as analyzed in the
g Final Environmental Impact Report, which determined the development
9 desirable and appropriate for the area; all public services and
10 infrastructure are available to the project area and any
11 development permissible under the Specific Plan would not impact on
12 these facilities.
13 (D) The pro p osed p lan will ensure development of a desirable
14 character which will be compatible with existing and proposed
15 development in that the policies established by the Plan are
16 intended to encourage high quality development of a nature
17 consistent with surrounding developments.
13 (E) The Specific Plan will contribute to a balance of land
19 uses so that the local residents may work and shop in the community
20 in which they live in that the plan proposes residential land uses.
21 The site is designated by the General Plan for residential land
22 uses, and the theoretical maximum number of units obtainable on the
23 site does not change.
24 (F) Specific Plan No. 90-03, Paradise Hills, is attached as
25 Attachment 3 (Exhibit C of the February 1, 1993 Mayor and Common
26 Council Staff Report) and incorporated herein by reference.
27,
28i
i
6
i
1 SECTION 4 . FINDINGS GENERAL PLAN AMENDMENT.
2 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
3 City of San Bernardino that:
4 (A) General Plan Amendment No. 91-07 is consistent with the
5 Goals, Objectives and Policies of the General Plan. The intent of
6 the General Plan Amendment is to supplement General Plan Policies
7 for reducing the number of units in the Hillside Management Overlay
8 by creating a receiving area outside the Overlay for the transfer
9 of dwelling units from the hillsides.
10 (B) General Plan Amendment No. 91-07 will not be detrimental
11 to the public interest, health, safety, convenience, or welfare, in
12 that the purpose of the amendment is to reduce impacts as addressed
13 in the EIR. Future subdivisions will require and be subject to
14 further environmental review.
15 (C) General Plan Amendment No. 91-07 will not impact the
16 balance of land uses within the City. Although the amendment will
17 result in a higher development density in the foothill areas of the
18 project site, the potential overall theoretical number of units
19 obtainable for the project site will not change.
20 (D) The subject land use is physically suitable for the RS,
21 Residential Suburban land use designation in that the access and
22 the provision of services and utilities will occur as outlined in
23 the related Specific Plan. The designation will accommodate the
24 transfer of units from areas with physical constraints.
25 (E) A Map of the area affected by General Plan Amendment No.
`'6 91-07 and accompanying Legal Description have been included as
Attachment 4 .
2T
7
i
1 SECTION 5. FINDINGS DEVELOPMENT AGREEMENT.
2 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
3 City of San Bernardino that:
4 (A) Development Agreement No. 91-03 is not in conflict with
5 the Goals, Objectives, and Policies of the General Plan.
6 (B) Development Agreement No. 91-03 is consistent with the
7 Development Code.
s (C) Development Agreement No. 91-03 will promote the welfare
9 and public interest of the City.
10 (D) Development Agreement No. 91-03 , is included as
11 Attachment 5.
12 SECTION 6.
13 NOW THEREFORE BE IT RESOLVED, FOUND AND DETERMINED by the
14 Mayor and Common Council that:
15 A• The Final Environmental Impact Report is certified, the
16 Findings and Statements of Overriding Consideration are
17 adopted, the Mitigation Monitoring/Reporting Program is
is adopted, Paradise Hills Specific Plan No. 90-03 , is adopted,
19 General Plan Amendment No. 91-07 is adopted and Development
20 Agreement No. 91-03 is adopted.
21 B. Development Agreement No. 91-031 after execution of the
22 agreement by all parties, shall be effective as of the date of
23 the adoption and execution of this resolution.
24 SECTION 7. MAP NOTATION.
25 This resolution and the amendment affected by it shall be
26 noted on such appropriate General Plan maps as have been previously
0 7 l adopted and approved by the Mayor and Common Council and which are
281 //// I
3
0
1 on file in the office of the City Clerk.
2 SECTION 8. NOTICE OF DETERMINATION.
3 The Planning Division is hereby directed to file a Notice of
4 Determination with the County Clerk of the County of San Bernardino
5 certifying the City's compliance with the California Environmental
6 Act in preparing and adopting the Final Environmental Impact Report
7 and Mitigation Monitoring/Reporting Program, and Findings and
$ Statement of Overriding Consideration.
9 SECTION 9. Recordation
10 The developer shall record the Development Agreement in the
11 Office of the County Recorder no later than ten (10) days after it
12 is executed by the parties.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
21
i
9
1 RESOLUTION . . .CERTIFYING THE ENVIRONMENTAL IMPACT REPORT;
ADOPTING FINDINGS AND STATEMENTS OF OVERRIDING CONSIDERATION, AND
2 MITIGATION MONITORING/REPORTING PROGRAM; ADOPTING SPECIFIC PLAN NO.
90-03 (PARADISE HILLS) ; ADOPTING GENERAL PLAN AMENDMENT NO. 91-07,
3 AND DEVELOPMENT AGREEMENT NO. 91-03 .
4 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF DEVELOPMENT AGREEMENT NO. 91-03
5
I HEREBY CERTIFY that the foregoing resolution was duly
6
adopted by the Mayor and Common Council of the City of San
Bernardino at a meeting therefore held on the
8
day of 1993, by the following vote to
9 wit:
10 Council Members AYES NAYS ABSTAIN ABSENT
11
ESTRADA
12
REILLY '
13 HERNANDEZ
14 MAUDSLEY
15 MINOR
16 POPE-LUDLAM
17 MILLER
18
19 City Clerk
20 The foregoing resolution is hereby g g y this
21 day of , 1993.
22
23 W.R. Holcomb, Mayor
City of San Bernardino
24 Approved as to
25 form and legal content:
26i JAMES F. PENMAN
City Attorney
27 By:
cis
10
i
RECONINI END AT.01S
of the San Bernardino Cite Planning Commission
Concerninb the Findings on
the Final environmental I1pac: :2eaurt
for the 'aradise Hilis Project
The Planning Commission hereby makes the following recommendations to the
Ma-or and City Council concerning the Final Environmental Impact Report for the
Paradise Hills project:
1 ) That the flavor and Cite Council find and determine that the Final
Environmental Impact Report contains a complete and accurate reporting of the
environmental impacts associated with the project.
?) That the Mavor and City Council certify that the Final EIR has been
completed in compliance %with CEQA. was presented to them, and that they revie.ved
and considered the information contained in the Final EIR 'ar^re annrovina the
project.
�) That the flavor and City Council find that the Environmental Impact
Report was prepared by a consultant under contract to the applicant. and that the Cite
has guided its preparation, independently reviewed all aspects of the documentation,
and dra%,.,n its own conclusions about its adequacy.
A) That the Vlavor and City Council adopt the Findings and Statement of
Overriding Considerations (Exhibit A), finding that 1) all feasible mitigation
measures and :iternatives lave been required. and 2) the project's expected benefits
out,. eigh the adverse environmental impacts not mitigated to a levei of
insignificance by the incorporation of mitigation measures.
5) That the Mayor and City Council impose the mitigation measures
contained in the 1'fitigation Monitorina and Reporting Progrwm for the project
(Exhibit B) and direct the Planning Department to implen>>nt the mitigation
-�T*C,,ram c'`nt'ain-2,; ihe:-ein.
ATTACHMENT 112"
FINDINGS AND OVERRIWNG IM'iz.vriom
Fontana Corners
Speciric Plan 90-03
Page 2
�_--
EXHIBIT
F I N D I N G S AND S TA TE }Y E N T OF 0 V ER ITZ l I} I N G
CONSIDERATIONS REGARDING ENVIRONMENTAL EFFECTS
OF THE FO NTA N A CORNERS I I I RESIDENTIAL
DEVELOPMENT ' �PE [ IFIL PLAN
?,�R.-I,DlSF- HlLLS,'
ThcCit! Council V/iho City o[San Bernardino, inapproving the Fontana Comers lll
residential development (Specific F1un90'02. knowoasPoodixcBiDs),mabcsibeOoUingsanduUopXs
[bc s*ztcmc-oisofov:-riul|nuconsid:ruiieos herein sct forib.
The Eorinoomcn|ul Impact Report On the project identifl-cs possiblo significunl zUvcrs:
environmental impacts o[the project inu number 0[areas. Mitigation mousorcs have been developed
and imQoscd v'hicb MibLTaic impxc|xinmDo areas to some extent.
Imposition of mitigation measures will midgutc impacts in most areas to u level of
iosiz.-ificaocc. These impacts and mitigation measures, the rationale for �hcir effectivcncss, and the
rcosoos *byodhcrrnibgzbonisno[ occcssur?nrfcusiblcarzdcscribcdin3eclion &.
Four areas of impacts are mitigated t0 some extent after lh: imposition o[nniiiL'udoo
nncuuun:s but not tou level n[insignificance. These ;Impacts uodmibgudoo -oczsurrs. the rudOozlc for
oibcrcniL: --boo is -ML --CC-ssu/�' C7 .'-�'uuiblz, arc dus--z�
SecbuoB.
The project offers benefits which have been balanced against its unnnidgubio
environmental effects. These are described in Section C.
The Environmental Impact Report analyzes ar2ozc of alternatives Lo the croc.=
Alternative 4 has been chosen in favor of the proposed project, xsdeScdbcdin3ccbooD.
Fioal}y. conclusions are ujvcnio Section E.
The Cit? c000c;l f-,ods that. in the following areas. *,he p jc-z�`sco,;roorrentul i:::-uc*s
are significant, but are mitigated to a level of insignificance by changes which have been required in, or
incorporated ioo, the project to avoid orsubsuonbaOylessen the significantcnviconmcntul effects.
l.
S[nuc[urcz and persons on the site will t.- su'cc, O sigoiOc.=lgnJuod-.=t "u'ring
seismic events. The site is also subject to potential hazards of landslides,licucfzcbooand rupture. The
sc!cm!c ao-� '-*:u!cZ!c 11:c111 ... =-1!c: mcasurcs. =� b,-;r :n
Sections lV'A and 9of the Draft ElR. and Sections D'g and 'l0 and Appendices B. C. & Dofthe
FIN'DIN'GS AND OVERRIDLVG 'DERATIONS
--- — -Fontana Corners -
Specific Plan 90-03
Page 3
Final EIR. These impacts are avoided or mitigated to a Icycl of insigni icance by Geology and
Seismicity N'iiti_atior %leasures A-1 through A-30, as shown in Exhibit B (tne Mitiaal!or. '.Ior,ito; ne
Checklist).
2. Hvdrologv. Flood Control and Drainaec
_De'. ,.. ^ment 1,r :.. er ,• wiii 2 ii _..1 are
Sur:aceS, [hereo '.ncreasln2 7unoi l ever exist= lc ,,IS. i ne . ..col: L;ortrol -,nj ral;.a2e
cCIlO 'V.moacJ, I iu.t—a[ion measures. anu ",clr effectiveness arc iscusscd in n , _C a,n j , 7th the Dr-
E7R, and Sections 1I-9, -:0, and -i: and Appendices C and D of the Finai E1R. These :mnacts are
avoided or mitigated to a reduced level of insignificance by Hydrology, Flood Control and Drainage
Measures C-1 through C-15, as shown in Exhibit B.
3. Noise
Construction activities will produce short-term noise increases at the site and on nearby
roads. Short-term noise impacts, mitigation measures, and their effectiveness are discussed in the Draft
EIR in Sections IV-E, 3(a) & (d), and V. These impacts are avoided or mitigated to a reduced level of
insignificance by Noise Measure E-1, as shown in Exhibit B.
4. Light and Glare
The project may tend to increase the amount of light on the site and may potentially
increase Aare. Light and glare impacts, mitigation measures, and their effectiveness are discussed in
EIR ... icn .Z" r ,. .`ese imraca ar a��i ' 0r .. .e i to
_
insignificance by Light& Glare Mitigation Measure F-1, as shown in Exhibit B.
5. aesthetics
The project will permanently alter the appearance of the site. Aesthetic impacts,
mitigation measures, and their effectiveness are discussed in the Draft EIR in Section IV-G and V.
These impacts are mitigated to a reduced level of insignificance by Aesthetics Mitigation Measures G-
I through G-13, as shown in Exhibit B.
6. Land Use
C:uucs an arine.x'atton .cq'_,cst on _O. . acres
plan of the City to a minor degree. Land use impacts, mitigation measures, and their effectiveness are
discussed in the Draft EIR in Sec;ion IV-H and V. These irr^ac;s are avoided r d a
. C _a[e :0
reduced level of insignificance by Land Use Midgation Measure H-1, as shown in Exhibit B.
7. Trarsporation
The 7rciec; will ^enerate .671 daily trips on cxis;in_, roatways. Traf:i;: imo_ acts,
gat r � ^eir z--,c. e.. ss are scussed in Sc�.:on IV-T -V of the :...
miti Ion mesa es. .rtd _ .i� ^e d ' - ^-1 [ rP., and
in Sections II-l. -" -3, -6. -8, -10. ac-111 of the Final EIR. These imoacts are avoided or mitigated to a
FI\DI\GS AND OVERRIDNG Y ')ERATIOIS _
-- Fontana Corners
Specific Plan 90-03
Page 4
level of insignificance by Transportation Mitigation Measures B-14 and 15, J-1 through J-6, and by
adoption of Alternative 4, as shown in Exhibit B.
S. Fire and Risk of upset
The croject places ',omes in a hizh fire risk area. :and mill Increase demand for sire and
services. -ire and ,.:^er :rev se:-•ice imcactz. -?it ti .. -neaSures. .�.. ... .. e:'. iycr.ess
are ai�zct:4zsed in the Drar EIR in Sc.—ions IV-K and V. These im-,acts are avoi ded or mitl=_ated to a
icvel ;�f:nsi<n.i,.oance by Fire and EmerJencv Ser,-ices Nlit'"at1Gn 'Aeasures K-11 throu21` Kt34
cxccpar._ :1-=i, as shown in exhibit B, and by adoption of .11temative +.
9. Water Service
The project will increase municipal water demand, and will require construction of water
lines and water system imprcvements. Water supply impacts, mitigation measures, and their
effectiveness are discussed in the Draft EIR in Sections IN'-til and V and in Section II-4 of the Final
EIR. These impacts are avoided or mitigated to a reduced level of insignificance by Water Supply
Measures K-13 through -40, and Water Services Mitigation Measures M-1 through M-5, as shown in
Exhibit B.
10. Schools
The project will generate additional elementary, middle, and high school students.
School impacts, mitigation measures, and their effectiveness are discussed in the Draft EIR in Sections
1V-'^j _ . ['_Se ,u av I -- l V :J _: . ,.i%' rliUVJ �1„aJtreJ. tS 0, .�iz �d e.eI , i i
0-1 and 0-2, as shown in Exhibit B. Schools Measure 0-2 and, in part, Measure 0-1 are within the
responsibility and authority of the San Bernardino Unified School District, and can and should be
implemented by that agency. The City,however, has the authority to require submittal of ilic executed
agreement cited in Measure 0-1 prior to Final Map recordation.
11. Libraries
The project will create additional demand on existing library facilities and services.
Library impacts, mitigation measures, and their effectiveness are discussed in Sections IV-Q and V of
the Draft EIR. These impacts are avoided through Library Mitigation :Measure Q-1, as shown on
exhibit B.
12. Ener
The project will inc-case consumption of natural gas and electrical power, and will
require construction of lines. Utility impacts, mitigation measures, and their effectiveness are
discussed in the Draft EIR in Sections IV-S, V, and VII. These impacts are avoided or reduced to a
level of insignificance by Energy Mitigation Measures S-1 and S-2, as shown in Exhibit B.
FINDrNGS AND OVERRIDING 'DERATIONS
Fontana Corners
Speciric Plan 90-03
Page 5
13. Parks and Rccrcation
The project provides adequate parks and recreation facilities, but they must be dedicated
to the City to provide for area-wide public enjoyment. Park and recreation impacts. mitigation
measures, and their effectiveness are discussed in the Draft EIR in Sections IV-T and V. These
i cac,s are avoided by Panes .x.I:C Rccr,4on .. ... _ ..... :i J.
1 :. Cuiraral Resn -cs
The -,roleCt is not cCnsidercd likely to. Cut '^ay impac.
Cultural resource impacts, mitigation measures, and their effectiveness are discussed in the Draft EIR
in Sections IV-U and V. These impacts are avoided or mitigated to insignificance by Cultural
Resources Measures U-: and V-1, is shown in Exhibit B.
SECTION B. IMPACTS NOT MITIGATED TO INSIG\TFICANCE
The City Council finds that, in the following areas, the project's environmental impacts
are significant, and are not mitigated to a level of insignificance by feasible project changes or
mitigation measures which have been required in, or incorporated into, the project to avoid or
substantially lessen the environmental effects.
1. Solid Wast°
The project will generate additional solid waste. Solid waste impacts, mitigation
measures, and their effectiveness are discussed in the Draft EIR in Sections IV-R and V, and in Section
II-2 of the Final EIR. These impacts are substantially lessened by Solid Waste Mit;gation Measure R-
1, as shown in Exhibit B, but remain significant.
2. Air Qualitv
Short-term air quality impacts will occur during construction as a result of an increase in
fugitive dust and particulate matter, and emissions from architectural coatings, paints, and asphalt.
Long-term impacts include protect-related emissions from vehicles and consumption of natural ?as and
electr city. The project's air quality impacs, mitigation measures, and ihcir effectiveness are discussed
in the --raft%LZ m Sections IV-3 and V, aria in Secticrli 11-0 and -6 CI Lae Final F-R.
3nr,nC which h ,-„ .,cen t°('iii'.'d in. C.' ..-:cC;"oratc� to .tile eS^nn
these impacts include Air Quality Measures B-1 through -15, and utilities Measure S-1 as shown in
Exhibit B. Air Quality Measure B-1 is partly within the responsibiliry and jurisdiction of the South
Coast Air Quality Management District, and can and should be implemented by that agency.
T`e project's air c: iy mcac:s -xi 11 ^c sut,stanti all; -ec.ccd.
t0 be :. ly .titi_ated as ^.e proje . .:iIl stiL' ,;,suit in u::::',ridable. ;ice:.i:;cant air poiiu.W:t en:iss:ens.
FTNDINGS AND OVERRIDING DERATIOSS
Fontana Corners
Specific Plan W-03
Page 6
3. Earth
The project will result in significant short term impacts on ear11 resources as a result of
censiiuct,On acti��ities and subsequent erosion. Tile project's eanh impacts, mitigation measures, and
their effectiveness are discussed in the Draft EIR in Sections IV-A and V. and in Secticr. II-9 of t;e
Final Ea.
Chan,-es which have been required in, er incorporated into tre croiec: to :i%c;J or lessen
these ?rnoac*s ...elude Earth mitigation a-6, and - -9
A-26 and -27.
The project's grading activities leading to earth impacts will be substantially 'essened, but
cannot be eli nina:ed due to the nature of the actlyiLy. As such, the 7:*Ojeci `.Viii :::: result in
unavoidable, significant, short-tern earth impacts.
4. Biological Resources
The project will result in the reduction of habitat and disturbance to a wetland for two
proposed road crossings. These impacts, mitigation measures, and their effectiveness are discussed in
Sections IV-D and V of the Draft EIR, and Section II-10 of the Final Ea.
Changes which have been required in, or incorporated into the project to avoid or lessen
these impacts include Biological Resources :Mitigation D-1 through -3. These, measures cannot
completely eliminate the impact due to the inherent elements of dL-velopmen: activity, a ; :he federal
wVer4 i.:�. 's .olic 1-ierefore, �. Sint •� ny - .
p -. _ rcJe t will re in unavoidable. Siz.,i::earl:, :crT-te ;,io,oJi ai
impacts. `
SECTION C. PROJECT BENEFITS
The City Council finds that the project will provide the following economic. social, and
other benefits to the City:
1. Tax Base and Fiscal Health
i,roject will promote the Iong-ierm fiscal health of ::.e :_.:t; jv LJStani13l1y
augmenting the existing tax base, through improvements to the land on which property tax will be
is
zener=d. and :g bring,_'add:ticral famines with Inc-cased ;e^c: _ =-c wc- 7his
discussed in the Specific Plan Section 2 and 9, and in the Fiscal Impact Analysis (Appendix L) of the
Draft EIR, Section II-9 of the Final EIR, and in the applicant's presentation at the May :11 Planning
Commission hearing. This, in rum, will help in luring corporations to the City that can provide jobs.
'. Shor.-Ter L cal Emplovme^.t
The oroiect will create jobs during the constriction -^tease, '^c' a' ^g -mad;,, ,. and
3SSOCi: i. ; '.'viln i 1C
A,s;.lcture, �ra ::.
uin-, buliuln�, and iandscapin.g. Other nployr '^t
FINDINGS AND OVERRIDL\G ERATIO\S
Fontana Corners
Specific Plan 90-03
Page 7
development, but not necessarily newly created jobs, include maintenance of parks, trails and fuel
modification zones: pm'ate la-wris. _ardens and pools: child Care: and si.T.ii3r personal sen'ices. T;:is is
discussed in the Fiscal Imoact Analysis (,appendix L) of the Draft EIR, and in Sections I i and W of
the Draft EB2 Planning Commission hearing.
Road%vav Irn^-ov^mo-its
,.-c proiect constructs :•.40 of four segments needed for P:ed^;ont Drive, sne xrl on the
$ C.,..,:-al :'-!a o -:rculation. Ti his is discussed in L c Specific Flail Sec:Ion 4, ;!nd _ �
ih" t r1I11fl
C
.analysis (AppenQIx 1) oI DraIt EIR, Sections III .:n;: IV-1 oC t ta
he D`a;i _ :R, and in � s -
L,C il 7eTort
and applicant's presentation at the July 7th Planning Commission hearing.
4. He'.' ad
The project will construct a helipad in the foothill area, that will provide regional benefit
for fire fighting and emergency rescue operations in the San Bernardino -ational Forest. This is
discussed in the Specific Plan Sections 2.4 and 5.2, in the Draft EIR Section IV -K. in the Fire
Protection Plan(Appendix-I) of the Draft EIR, and in the Final EIR in Section. II-10.
5. Parks and Recreational Opportunities
The project will construct a park, and dedicate it to the City. The park exceeds the City's
acreage requirement (5 acres per 1,000 population) by 2.9 acres, and includes a riparian element
enhanced by a trail and educational interpretive signage about riparian biological communities.
=oiect ':iyi Constn,:ct 7.5. -norc or:zss, mils ci hi kin?'.._-'s :hrougiioL':
also with educational interpretive signage for biological resources and, additionally, for geological
reference and conservation efforts. Finally, the project will construct 1.15 miles of equestrian trail
through the site. This is discussed in the Specific Plan Sections 2.4, 3.2, and 7, in the Draft EIR
Sections III and IV -T, and in the staff report and applicant's testimony_ at the Mav 5th and July 7th
Planning Commission hearings.
6. Open Soace in Perpetuity
The project designates 175 contiguous acres to open space uses in perpetuity, thereby
creating assurance that a significant visual and biological resource will not be lost in future years. This
is discussed in the Specific Plan Sections 3.2 and 7, in the Draft Eir Sections III, IV _•;. B, F, H and T,
V and IY, in 2te Biological Reset:rces Sur.ev (.appendix C) of:-h—, Draft =''R. -- Sc
c:`.cn Il .0 of:h_
Final EIR, and in the staff report and applicant's presentation at the May 5th Planning Commission
Hearing.
7. School District Assistance
T;e project will provide, through a special agreement, immediate dollars to the school
district, which will enable tr,e district to buv propeny for a needed school -sit, in the Ver,:ir^.ont area.
The same wouid not be p ie to occur through simple imposition of schoo'. :,.es at the buildir.l : .:.,it
stage of development. This is discussed in Draft EIR Section IV - 0 and in the staff report and
applicant's r)resentadon at�he Pimnin^Commissicri n
H=-^ ^
FINDINGS A&\D OVERRIMG `V"DERATIONS
Fontana Corners
Specific Plan 90-03
Page 8
8. Quaiitv. Upper-End Housing
The project would provide housing of the type that would Cn�hLnce the ima 7e of the city,
and of which the city is cure°ntly in snort supply. This is discussed in the Specific Plan Sections 2, 3
and 9, in the Market Feasibility Analysis prepared by AL Gobar (dated July, 1990). in the Fiscal
Imcact Report (A�p;radix ;'; of the Draft EIR, in Section III and IV - I an d W of the Draft EIR, and n
!iC
sLaff report an,: applicant S presenMLon at trig C°.IIP.
h _ Ccm...asicn h g
9. C_-r.e P^' ^lion T Ouch DCSi"Z'
The project would further a goal of the City by creating neighborhoods that are safe from
crime. The project embodies a "Crime Prevention Through Design" element that makes such criteria
mandatory rather than advisor,. This is discussed in ;he Specific Plan Sec;ions 2.4 and 5., ar.d in
Section IV -L of the Draft EIR.
10. 'Master Planning
The specific plan process guarantees which kind of development mar and may not occur
on the site, and anchors and integrates the development through implementation of a master landscape
plan that will foster an up-scale, aesthetically pleasing image for the City. This is discussed in the
Specific Plan Sections 1, 2, 3, 4, 6, 8, 9, and 10, in Section III and IV - F, H and T of the Draft EIR,
and in the staff report and applicant's presentation at the May 5th Planning Commission hearing.
SECTIOti D. ALTERNATIVES
The City Council finds that the EIR describes a reasonable range of alternatives to the
project, or to its location, and that the City council has evaluated the comparative merits of the
alternatives, has rejected Alternatives 1, 2a, 2b, 3a, 3b, 5, 6, 7, the Alternative Site, and the No Project
Alternative, and has chosen Alternative=4 in favor of the proposed project as summarized below:
1. Alternate Access Alternative
This alternative provides a separate access road, which meets all public roadway
standards, to the IniEside area. Discussion of this alternative appears in Secticn IY of the Draft EIR and
sho%vr :n Table 1 of"'.c t:.. al EI R. TT.„o , te " a ti• , _c, u CCS .tin
:m--aC; c.^. fl7e and, t0 a
minor degree, on traffic circulation. However, it necessitates greater impact in terms of earthwork,
aesthetics, and biological resources. There is no other way to get a second ftill-sized roadway to the too
of the hiilside development area. The environmental impacts of this alternative are considered to
outweigh the benefits. Therefore,this alternative was rejected as environmentally infeasible.
2. No GPa !Lower lntensitvl Alternatives 2a and 2b
These ahernat ves .vouid :^.ave generally tic same impact; as ::,e proicct and .'.iternative
in most areas, as discussed in Section IX of the Draft EIR, and as shown in Table I of the Final EIR.
Altematives 2a L^d 2b ^oth ha,,- `mater impacts in earth rCS011rCCS du° '0 'he nece s:t; 'cr ::—n-
Awl-
FL\DIN'GS AND OVERRIDL�G j: 1ERATIO\S
Fontana Corners
Specific Plan 90-03
Page 9
grading in Lhe hillside area. Al cMaLive 2b has an additional oa d (circulation conf_uraiion as shown
in 1), which creates -rcaicrimpacts to biology and aestheii„s while lose;sir.`, impacts to
traffic and fire protection. Under these alternatives, the extension of esseniiail� the z:unc Ic%,cl of urban
infrastructure as that needed for the project would still be -cquircd. When evaluated based on reduction
of the project's significant imoac:s remaining after miti ration. i'r,e environmental impacts of this
31:c-na11•.es are sr. .. . _._ _....,cntli'' and
:,cmic;_i_y i feasible.
_. TraQa:onai �r::�;.^.? i�i�P.e: ii.:e 1S1I�') �.1:^Tiah�'CS '_nd
These alternatives would have the same or greater impacts than the project as proposed,
as discussed in Section IX of::,e prat E[R, and as shown in Table 1 of::.e Final EIR. The difference
between 3a and 3b is the circulation pattern. 3a shows a circulation pattern similar to the proposed
project. 3b shows the 2nd access pattern shown in Altcrnati`.�c 1. These alternati•.•es arc, therefore,
rejected as environmentally infeasible, as it offers no environmental improvement over the project as
planned.
4. Revised Altemate access Alternative
This alternative provides a separate access road to the hillside area which is more narrow
in width than is normally permitted, and has no sidewalk and parkway. Discussion of this alternative
appears in Section I and Table 1 of the Final EIR. This alternative has the same but less severe impacts
_s . _....:".at'.c 1. DUC .0 _. .,0 ''-, a "ed . L-re.^,tl�. cJ ^0 0 -.'e tO
arda ds neat. L... ii_� _. . �s t t a
;—pacis as severe as L`:ose in Aitcrcative 1. The disrsrbance t0 c^-_n space is min'—izcd: rth`.york is
minimized; and the alignment is not as visible from offsite. This alternative meets all of the project
objectives, and has fewer impacts than Alternative 1, and has increased f re safety. For these reasons,
Alternative 4 is feasible and has been chosen as the "preferred alternative."
5. Biolo(-ncallv Surerior Alternative
This alternative utilizes the circulation pattern of Alternative 4, the preferred alternative,
and further reduces biological impacts by prohibiting hiking trails and eliminating the upper crossing
of the riparian channel. This alternative is discussed in Section I of the Final EIR and is shown in
Table 1 of Lhe Final EIR. In order to eliminate the crossing, Plar-iing area 5 and a pertien of Planninz
.-area 5 (as shown in the specific plan, Exhibit 8) have been eliminated tFigurc 3 of the Final EIR re-
numbers the Planning Areas in different sequences). The ciimiration of these development areas
causes a reduction in the number of units from 504 to 469.
Per-unit costs for infrastructure would-be be proportionately hither, and the alterative,
:herefore, risks financial infeasibility. It also eliminates the ability to site water resc.-voirs out of sight
in or adjacent to Planning Area 6, and minimizes the number of potential custom, upper-end home sites
which are of^articular benefit:o the City, and which arc a -articular:rolect objective. For these
-..::sons, A':c..::ative .vas -e. _._ .:s :concmicall• nr.d _.. .non n;2... .ly ....
:n .dvor of
Alternative 4.
FINDINGS AND OVERRIDNG DERATIO\S
Fontana Corners
Specific Plan 90-03
Page 10
6. Geologically Suecrior Coo Hillside Dcyelopmentl Alternative
This alternative reduces impacts associated with ;quit rupture and lands'.ides by
eliminating the need to cross the fault zone with public roadways. `o habitable structures are
segregated from other urbanized crcas in San Bernardino, and from emergency services, by The San
Andreas or related faun;. This altcmative is discussed in Scction I of e Fir:a': EIR, atnu shown in
Table I (cont_; of?he Finai EIR. :..,, aiternati• a, eliminates ail hillside custorn .rots.
the ability to obtain a crucial project goal and substantial city benefit. Also, oer-unit costs for
infrastructure are increased accordin`ly, rnakin_ the project economically infeasible. For these
reasons, .Alternative 5 v.as reiected for the Preferred Alternative, 4.
7. Reduced Densitv Alternative #7
This alternative cuts lot yield by 259c uniformly throughout the project. Discussion of
this alternative appear in Section I of the Final EIR and is shown in Tabl;. 1 of the Final EIR. Lander
this alternative, the extension of essentially the same level of urban infrastructure as that needed for
Alternative 4, would still be required. Per-unit costs for infrastructure would increase accordingly,
risking project financial feasibility, and reducing he tax benefits and image enhancement associated
with the Preferred Alternative,#4, and is therefore rejected.
8. Alternative Proiect Location
Development of the project at an alternative location is rejected as infeasible as :.^e site,
though similar in size and charac:cristics, would
1� yield the same or greater impacts as the 2re7osed
pr^der.*, ,G ~" .. '! —1vvo impazzs, VU1lJIa11 and ysicontolo�'tc 1,
.o mac.. . �..�s ire av�
but these are not significant impacts for the project where originally proposed. No other impacts could
be determined to be less adverse, for the reasons discussed in Section IX of the Draft EIR.
9. "No Proiect" Alternative
The "No Project" alternative would create no environmental impacts, but neither would it
generate any of the project benefits, as described in Section C above,nor does it fulfill any of the basic
project objectives, and therefore is rejected as socially and economically infeasible. This alternative is
discussed in Section LX of the Draft EIR, and is shown in Table 1 of the Final EIR.
SECTION E. CONCLUSIONS
Tlie City council finds that:
�1)
All feasible mitigation measures identified in the EIR have been required in, or
incorporated into, the project, as described above in Sections A and B. Certain mitigation measures, as
identified above, are w:L. in the re!=nsibilit., and iurisdic"on of otter ag°ncies. Cther n . _ :ion is
not feasible or necessary :o mitigate he rrojec:'s impacts, ::s dcscr:bed acov c.
FINDI\GS AND OVERRIDV�G Y—I)ERATIO\S
Fontana Corners
Specific Plan 90-03
Page I1
(2) A reasonable range of alternatives to the project has been evaluated, as described
at,ove in Section D. Tire environmentally superior altert:atiyes (_Biologically, =F-5, and Gcoiogically, =F6)
would not feasibly attain the basic objectives of the project to an adequate extent, and would not
produce as many social and economic benefits for the City. Alternatives 1, 22, 2b, 3a, 3b, -1, and the
alternate site location are not envircnmentally superior, and would not attain the project objectives to
an adecu'ate de.arce. The "\o P-Oiect" altemati`:e vvould not attain the project objectives :[ U11. These
U11.
to the prolp_c: are,therefore, dete=ined to Ce an infeasible mcans of :...alP.in? ;Pe roiect
cbjectiyes and/or the cene:11's cf the project, aria are rejcc:e;.
(3) A:.e-aative . .gill provide substantial ,ublic benefits, as Described above in
Sections C 3 D. These benefits have been balanced against the project's unavoidable environmental
effects, and are determined to outweigh and justify those environmental effects. The unavoidable
environmental effects are Iess than those that would he croeuccd by, Altcmattvc :, and the public
benefit is the same as that of Alternative 1, but greater than that of Alternatives 2, 3, 5, 6, 7, 8, and 9.
Economic growth within the City requires new sites for upper-end residential development with
enhanced tax revenues, as well as attention to land use integration and urban desi`n character to
maintain and enhance the City's identity. The project's impacts on biological resources, earth
resources, and solid waste are unavoidable adverse environmental effects of urban cevelopment which
will inevitably result from any feasible project which accomplishes the public policy objectives at
issue.
(4) Mitigation Measures incorporated into the project, as part of the measures
recommended in the EIR and the measures alreadv incorporated into the project application, have
substantially lessened the adverse environmental effects of the project. Most effects have been reduced
a le el 01 ._^.S12T iI1 , mi ��
�or 11� �d, �.c c:. t
.l.a. � ;e ,, ::o -ccc:...
mitigation measures identified in the EIR that would further reduce the impacts have been imposed on
the project. In addition,other than Alternative 4,there is no feasible alternative identified in the EIR
that would further reduce the remaining adverse impacts. To the extent that any remaining unavoidable
adverse effects attributed to this project exist, or have not been mitigated to insignificance, such
remaining adverse effects are acceptable in light of the social, economic and other benefits of the
project, as set forth in Section C above, because the project's benefits outweigh those unavoidable
adverse effects.
FINDINGS AND OVERRIDING -DERATIONS Q
Fontana Corners
Specific Plan 90-03
Page 12
EXHIBIT B
MITI GAT TO MEASi1R S APPEARING IN THE
NITFIGATION MONITORING PROGR:,M
A. sari,
�- subsurface investigation of the portion of the site to be to-veloped %v ich lies ,,k-ithin the .-lquist-
Priolo Special Studies Zone shall be conducted prior to tentative tract approval for home sites.
The purpose of the subsurface investigation is to establish the state of activity and width of
faulting associated •, ith the on-site faults.
The subsurface geologic investigation shall include at least one trench to a depth of ten feet
entirely across that portion of the Alquist-Priolo Special Studies Zone where human occupancy
structures are to be placed. The trenches shall be entered, cleaned and logged by an engineering
geologist for inclusion into a report to be provided to the City of San Bernardino. The report shall
Include detailed logs of the trench wail with recommendations with t setback from t ., s anv active
faults encountered.
A-2 No habitable structures shall be allowed within the Alquist-Priolo Zone unless trenching is
performed to establish the aliL=nment of the fault. No habitabie structures shall be allowed within
50 feet of the fault: ncreased setbacks may be required as a result cf recominc- ,,tie:s by the
registered geologist.
Cleaning and logging of the trench walls shall include careful analysis of any soil profiles and
weathering of materials within the trench to determine the estimated age of materials trenched.
Any materials younger than 11,000 years shall be considered to be active faulting and no human
occupancy structures shall be allowed within 50 feet of such fault trace.
Where active faulting is encountered, additional short trenches to a depth of 10 feet shall be
i placed approximately every 600 to 1000 feet laterally across the property to precisely define the
location and width of active faulting across the entire site along with appropriate
recommendations of at least 50 feet from any active fau'.t traces. The faults shall be staked in Lhe
field, and the stakes surveyed by a licensed land surveyor or registered civil engineer.
A-3 Proposed development in the landslide debris areas shall be evaluated by an enginecring geologist
�r or_o and duting tiding.
An engineering geologist shall be on site to monitor grading. Any landslide debris encountered
shall be immediately evaluated in the field by the cngineerng geologist by extrapolating the
debris in three dimensions and determining whether the debris poses a hazard to structures. If
st. c^:res are to ^'.aced en debris, .. California R^_istered ''^oteC niCa. � Shall
conduct testing to determine uhe density and Suitability of the materials for foundation support. A
I shall 'IQ :Wade ty either the geotechnical e g;neer or :e crginccr r ecologist as 10
FINDINGS AND OVERRIDING "DERATIONS Q
Fontana Corners
Specific Plan 90-03
Page 13
whether the material shall be removed, and where necessary, replaced with compacted fill
according to the recommendations of the gectcchr,ical Cncinecr ara cn_IncCnll`_ `COi011SI.
A-4 Structures for human occupancv shall not be placed on or near anv of the landslides or debris
flows unless the engineering geologist determines that Slope failures will not be adversely
affected by grading, or debris is removed and/or stabilized during
tiny ;tr...res to aced in :sndsiidcs :.a;; aiu red by :"..e �eologisi by
placing onc Cr rore Dorms ... th andSl:�' arCaS .0 deter,:.:' the :hr,.,. dimensional
::n arac:c"stics or :he :andsil :he Stabillt,' u:e .anLlide, aria c_-;:Ioration or an%, perc.nCd
water that may exist within the landslide. Cross sections of the landslide shall be made by the
engineering geologist and evaluated for stability. The borings shall be made by 24-inch bucket
auger if possible, with detailed downhole logging b%, the engineering g°ologist if safety allows. if
bucket auger borings are not possible due to the density of the materials, a boring or borings by
flight auger shall be made, including measurements of the density of L'le materials and logging of
the cuttings at the surface b a registered geologist and blow counts shad be recor � p
.. Y t a d_d for samples
r taken every 5 feet within the boring interval. If neither of the above are feasible due to the nature
of rock encountered. rotary borings by either air or water shall be m_de with samples and blow
counts recorded at five foot intervals. These borings should extend to a depth of at least 15 feet
I! below any pad grade to be placed in the immediate vicinity.
A-5 The potential foe seismically induced flooding, the potential for site flooding, and the adequacy
of existing and proposed flood control facilities shall be evaluated by a~e project engineer prior to
grading.
A-6 Positive drainage of the Site shall be provided and water shall not be allowed to pond behind or
flow over any cut or fill slopes.
A-7 Where water is collected or discharged,protection of the erodible native soils shall be ensured.
A-8 A detailed evaluation of the site liquefaction potential shall be conducted by the project engineer.
Borings shall be placed by a geotechnical engineer at selected locations within the unit defined as
Qya on Lhe engineering geology report, Plate 1, dated October 4, 1990. The borings shall be
placed to a minimum depth of 30 feet with at least one boring to 50 feet in each separate drainage
area. The borings shall determine the grain-size distribution of the soils encountered, the density
of the ^sate^:1s znc.=-,Tc-ed. inc'.udinz blow counts ca^able of be.. _ convened sc,
with standard liquefaction curves, and the moisture content and depths to an}, free water
encountered shall be included in the boring loan. The gcotechnical engineer shall then use this
data in ccmbination wim the _round shaking data from the cngineerinz geologist to calculate the
materiais' susceptibility to liquefy.
A-9* The maximu.-n inclination of all cut slopes within granitic bedrock shall be 1-3/4 horizontal io 1
vertical, up to a maximum of 30 feet in height.
FINDINGS AND OVERRIDING DERATIONS Q
Fontana Corners
Specific Plan 90-03
Page 14
A-1 The maximum inclination of cut slopes within competent marble bedroc.'ti Si?;ill be :-i/?
`:o-izortal to i vertical up to s 30 feet maximum hem-,ht. Sleeper cuts Mal% be .i::c:e but shall be
individually investigated and analyzed for stability.
iN
A-11 For planning purposes. cut slopes within the arras deli rated as Qis on the _co:echnica1 -nap
,;,a ' -e _ nonzcntal to '. __.. w -;r i:.; cr. :n a m .,..._... .._ =�
max=urn inclination of ail cut Slooes -villa alu% i:ti matcriai
al. :0 30 ,Zx"* '.. height.
The standards set forth in these measures may be exceeded if land form (sculptured) grading
techniques are used, subject to the approval of an engineering geologist and the Citv Enginee:-ing
�eparmncm.
A-13 Cut slopes which could intercept slope runoff and are greater than 1_5 feet in height shail be
provided with a concrete lined "V" ditch above the top of the cut slope to protect the slope from
erosion.
A-14 Cut slopes higher than 30 feet shall be individually evaluated by the engineering geologist, and
shall have terraces in accordance with the uniform building code.
The grading plan shall be provided to the engineering geologist so that any cut slopes higher jhan
30 feet can be identified and further evaluated by additional geologic :field observations at that
s-ec;fic location. The :field evaluation shall result in the _n3inee..701oL- n_
recommendations to place a boring at that location, conclude that : e dopes %. iil be stable ac
planned, conclude that the slopes will need to be flattened, or conclude that the slopes are stable
subject to additional inspection during grading of the specific area. The engineering geologist
shall be required to observe grading operations and immediately b ng to the attention of the
coding contractor and owner any conditions exposed durin T grading --'-.at could result in unstable
slopes. Anv areas indicating instability shall be immediately further evaluated by borings and/or
:hree dimensional analysis based on existing exposures created durinLl '-aging so :'-at
recommendations can be made by the engineering geologist for mitigation of any unstable areas.
A-15 Human occupancy structures shall be set back from the horizontal distance of 10 feet or the
distance calculated by extending a 2:1 (horizontal to vertical) plane. extending uo\vard from the
:oe of the steep slope, wl—fthever is the greater.
A-16 For planning purposes, structures to be placed at the base of steep slopes shall be set back from
:oe of t.,, slope a -orizontal instance Kauai to iJ2 the sicce heign . :o a m i
ax.mum Cll_ta-,o„
of 15 feet. Each slope and setback Shall be individually evaivated diu,ng revie,x of the grading
plan.
Human occupanev structures shall not be placed less than :0 feet fro -, the base cf any landslide
_reas srow•n on Plate . cf'-he aireenn2 ^ecio n ..._d Oc: - :9'
subsurface borings and three dimensionai anaivsis of slope stability as ,:esc:ibcd :nuer Section .�-
= ',as corcl::ded that these areas are stable or arc not landslides.
FINDINGS AND OVERRIDING DERATIONS
Fontana Corners
Specific Plan 90-03
Page 15
A-!7 Grading of the site shall be evaluated by the en_inecrinL eolo�*ist by in-�zradir,, inspe: ions.
A California registered gecio_ist shall be on site during yraeing operations to evaluate unforseen
conditions that may be exposed during grading. -Monthly reports shall be provided by the
registered _eologist and ifthe ?celo-cist is terminated or terminates his contract with the developer
A-18 P^.or to cnia"ve :.iaD i r-rc%,a', - °Qi�C.^`?iL°1 :'^.Ce... :.^.". T'''at:u^. sh,,;, Ic p, . ^�
7'_1Stere,^. _e0tec::meal en-:,;nc--: and submitte" ;J ;he En :rccr:r`.2 De^artment. Said rc-^o,,
contain so,- -and foundation design criteria to be ',sea' in the rroiect design.
A California Registered Geologist shall provide a detailed geotechnical engineering report on
each tentative tract within t.",- project, wh:ch shall include :he results -I the subsurface teSI1n=S
form borings or backhoes, analysis of any liquefaction areas identified as Qya on the geologic
map, recommendations for design of foundations and removal and preparation of ground prior to
placement of engineered fill, and support calculations for any slope stability analysis required by
the engineering geologist.
A-19 Frequent observation of grading and testing during construction under direction of a qualified
geotechnical engineer and/or engineering geologist shall be accomplished to verify compliance
with the report recommendations and to confirm that the geotechnical conditions found are
consistent with the report findings.
A California Registered Geologist shall be on site durin', ail grading operations on the Prcject.
Canyon cleanouts shall be observed by both the geotechnical engineer and the engineering
geologist and anv areas containing evidence of high groundwater in the past or present shall be
adequately drained by either surface drains or subdrains `.khere fills or structures will be placed
over those areas. Monthly reports shall be provided by the geotechnical engineer and engineering
geologist summarizing grading operations to that time. A final geotechnical engincerng report
and final geologic report shall be prepared for he Project, describing conditions obsern cd during
grading and providing evidence of compaction testing for all fill areas by the geotechnical
engineer. -
A-20 The engineering geologist shall evaluate the marble debris areas for the possible Presence cf
cavities during the grading of the site.
If any human occupancy structures are to be placed within the marble terrain as shown on the
geologic repot dated October.;. 1.990, test bor;ngs shail be -)iaccd at vocations seie: d by the
engineering geologist to evaivaie the suitability of this terrain to .support structures and .o
evaluate the potential for the existence of any cavities in the immediate vicinity.
A-21 Cut and fill on-site shall be balanced. If not, aspects of material import or export must be
Znproved 'o;, the Cor : : ii;: DeveloPrnent �eParc:n;ht r. ::nd Cif,
C_QA review. .;m, Subject :o
FINDINGS AND OVERRIDL\G - )ERATIONS
Fontana Corners
Specific Plan 90-03
Page 16
A-22 Pr-.or to recordation of any final map, t,`le applicant shall sub-mit a detailed urldin_ DII,:n. The 71ar.
Shall' include ^.c follow•:rg:nlbrmatior,at a minimum:
o Preliminary quantity estimates for grading
e Desigraton of areas of temporary borrowing cr depcsiting cf:;atcrials
o ...,^nicues x;..... ;ill ^e -_,scd to . _ ..........
_:.. ..
..r 1. .:t lee .-.. ..U::1. •,TV CzSs. .,^.cl Uliili .... �.....�...-. .... 1 't
sicDes.
o Ac roxlmate tim,.1, :rames :or radin2 ' iC�ral C7t1' � ,
a = i ICiUUl;,_ C:, �1 :r :I"Cn
may be graded durn�7 the higher probability rain men ns of. • ,-,c., Ti,
anu�r ,` _
March.
o Preliminary pad and roadway elevations.
o tiecessary drainage facilit-ices such as "V" ditches for:he ccntrcl cf deal^a_e.
A-23 All grading plans shall be reviewed and approved by the engineering geologist prior to
arty grading `
A-24 Any grading plans shall be reviewed by an engineering geologist to determine the need
for a seismic refraction survey to evaluate the rippability characteristics of the bedrock
areas.
A-25 Proposed structures on the site shall be designed in accordance with Uniform Building
Code or local building codes, whichever has precedence.
A-26 All cut and rill slopes will be landscaped or suitabiv protected to avoid erosion v itihin h0
days of completion of grading. Except in the trail areas and riparian areas, landscaped
slopes shall be equipped with an automatic irrigation system.
A-27 Cut and fill slopes adjacent to trails in the open space and adjacent to the riparian area
shall be reveszetated in conformance with a revegetation plan.
A-28 Removal of existing on-site fill in proximity to the existing water line which traverses the
southerly portion of the site is required prior to placement of new fill material in that area.
A-29 All subsequent soils and geology reports for various approvals and phases of th^ proiPct
shall be reviewed and approved by the State Deparment of Conservation, Division of
Mines and Geology.
A-30 ill `rading pians shall be -.vicnxed and approved by the rteotec:nicai ,T,zir,eer plaricr :o
any gradLlg `
B. Air
B-1 7h.,. short tet-z air quality :7r act resulting from const,%cftn
the CSUSB campus in the worst case scenario) will be :mitigated by pericaically -xcuing
t.' soil surface during radintt and Site preparation rroccsscs. 'l'; c
comply with SCAQMD Rules 402 and 403.
FINDINGS AND OVERRIDL;G 3ERATIONS
Fontana Corners
Specific Plan 90-03
Page 17
B-2 Nonsoi`;eni-based paints shall be used on buildings, wherever feasible. Usc hi'*h-solid or
water-based coattn-as on all strictures.
B-3 All construction equipment shall be cleaned daily. All trucks shall be washed before
-_-e Constn.__'C"I Site.
B--i Soil vir:Ctrs shall t-. used on the sltc, unnav'cd rVad$, »rid p..-.-k'_^.- »re»s,
roundcover_.rein' vdrosecdina and it zaur.2 durimi establishment c. he oiants.
B-5 Construction shall be scheduled during off-peak-hours and a phased-schedule of
construction shall be prepared and maintained to even out emission peaks.
B-6 Construction roads shall be paved as soon as feasible, and swept daily during
constriction.
B-7 Suspend grading operations during first and second stage smog alerts.
B-8 Construction equipment engines shall be kept well tuned.
B-9 Low-sulfur fuel for equipment shall be used if available.
B-10 Existing power sources shall be used during construction. Temporary power generation
shall be avoided.
B-11 Provide ride-share and transit incentives for construction personnel.
B-12 Configure construction parking to minimize traffic interferences.
B-13 Minimize obstruction of through traffic.
B-1.1 Provide a flagperson to guide the traffic properly.
B-15 Schedule operations affecting traffic for off-peak hours.
C. Hyd-olotyv
C-1 The final design of the project shall comply with the City of San Bernardino standards for
store drainage, and shall be designed in c000eration with the San 31-mardino County
Flood Control District.
C-2 Drainage plans shat' respect historical drainage patterns to the extent feasible, and any
changes in these pauerns shall be adequately offset.
C-3 All Badger Canyon low flows shall continue to Clow into the :Hain channel to the greatest
xtent feasible.
FI\DI\GS ADD OVERRIDI\G DERATIO\S
Fontana Corners
Specific Plan 90-03
Page 18
C-4 In streets where the storm drainage for 060 exceeds the top of the curb and/or Q 100
exceeds ti^.c �g -of-way' e'.e�ation, ar underground storm drain .gill be constructed.
C-6 Easements shall be provided for drainage through residential lots.
C-6 On-si e inlc�s and siltamdl r_ basins, c .ve'1 as c^,^1g� :,b°^ '- ^ a,,ice„ ..c'. t ^�
a- �. �,.r,;;nom �:., 1 �e 4_:
,s,s _ ...cans
_ Vhere are . ,111,^1. :' _nah Cc aulali red '..it , plant
-ccks.
C-8 All drainage contributing to pads or slopes will be intercepted by drainage ditches and
carried to L1 street, storm drain or natural swaie.
C-9 Badger Canyon: Badger Canyon contains natural riparian vegetation. Therefore, it :,1:all
be protected in its existing natural condition as described in the Specific Plan. The only
work allowed in the wash shall be for street crossings, required erosion protection, and
storm drain outlets. Such instream work shall include a plan to restore disturbed wetland
areas. Such plan shall be prepared by a biologist acceptable to the City of San
Bernardino, the State of California Department of Fish and Game (CDFG), and to the
United States Army Corps of Engineers (USCOE).
C-10 A 1601 Streambed Alteration Agreement shall be obtained from CDFG, and a 404 permit
shall be obtained frog: U SCOE 7-;or to :hc init,:ation of ant' Construction 'A i:hin
sireaMDedS or riparian areas.
C-11 Fresh water Seeps: Where fresh water seeps fall within developed portions of the
Specific Plan, :hey shall be avoided where ever possible. Any runoff will be picked up as
directed by the soils engineers and be conveyed directly to a natural drainage swale '.k;,ere
possible, or to an underground stoma drain.
C-12 Site runoff impacts and drainage control feasibility shall be addressed in a detailed
project drainage plan to be prepared during the final design and subject to the review by
the City of San Bernardino and the San Bernardino County Flood Control District.
Specific development plan submittals shall include site-specific draina�c studies,
including required temporary and permanent drainage facilities and erosion control
measures. All on-site iced control facilities will conve)' the 100-year flow and shall be
developed according to specific City standards.
C-13 A Final Hydrology Study shall ba approved by the City Engineer, and shall be
incorporated into the public improvement plans and site development plans prior to their
approval.
-i4 `,e Paradise Hills ^rcl'= ,.gill be a d any aprreprate 21=1 era ,es n
tiV
pro-rata fees for consmu ,ion ::ood control improvements.
FINDINGS AND OVERRIDING �ERATIO\S Q
Fontana Corners
Specific Plan 90-03
Page 19
C-15 All major drains form hillside areas shall be open channel, where possible, and sized to
accommodate the debris loads. .-,!I underground ;torn ;ir;ins accenti;:_ hillsides drainage
shall have an overland escape route provided.
D. Biolc_ical Resources
^3'Ir_. ..it` :.^:d:<'enc_S 'cOS - _. .:SZ;,,C'. .. ::e
:oral checklist of .^e Si:.- ,n.c. 31olcv. Reeort. the C;-,,.- of San Berna:, ino -c::u 7cs a
niP.lmu n _.1 re^lac,—mcn.t cI '•�Ctlanc areas. Rcmovc CXOttC :C^^t...�P. .'l:iii^ ;i1C
crannel, including Eucalyptus. Ailanthus, Gre"ilica and Nerium. The alteration --F h--
channel is expected to involve less than one acre of habitat, so a federal Corps of
Engineers 404 permit is authorized under the current Nationwide penmit of the Corps. A
1603 Strearnbed Alteration A_rcement will be rcauired by the California Department of
Fish and Game. The Agrcemcnt with the Department of Fish and Gar:,-- «'ill contain the
details of these mitigation measures.
D-2 Setbacks of 50 to 100 feet from the principal drainage and 25 to 50 feet from minor
drainages or seeps are required. This will alloy for retention of bioiouical values
associated with these features.
D-3 Prevent use of natural open space trails by motor cycles through signage and placement
of vertical bar barriers.
E. Noise
E-1 If the grading plan indicates that importation or exportation of fill is required for site
grading, grading shall be restricted to the hours of 8 a.m. to 8 p.m., -Mondays through
Fridays. There shall bee no grading operations on weckends or on legal hoi da%s.
F. Light and Glare
F-1 Alternative lighting methods, as acceptable to the City, shall be installed, :o reduce light
spill and glare. Such methods may include, but are not limited to, lower intensity lights,
hooded light standards, shorter light standards.
G. Acst.he*ics
G-1 Grading standards set forth in the specific plan shall be adhered to. These grading
standards include trno v a-.:v e to-ne.' .=dr o rrn or"s cuiptirc "
_radi^g , ::ich
---cult in artincial slopes 'which arc modeled after-.he natural terrain and r,-suit in less of a
visual impact.
G-2 All cut and fill slopes shall be landscaped or suitably protected to avoid erosion within 60
c islet ra -. -, ' _ ''rCa l
�a:s of or-.: ion of _ din_ �.,.,o in ,h ..,.il .. s and r,par-n area. am'sc::p°d
ICC-s shall to --quipl.e.^. .:ith an --ut.—:a:ic irri`atica syst--m. a an; _.'.: s o-cs .iuj:;e^t
to trails in the open space areas, or adjacent to the riparian area shall be rcve�:,ctntcd in
vn:ormarc: '.viL`i a��`. _e:ati vl:
cn v-1.
FJ.ND{N*(;S;k.ND OVERRIDING ` /DCDATT0.NS
^_
Fontana Corners
Specific Plan 90-413
runczo
'
O'3 No solid walls and /cnccxshuU bc allowed udiuccni ioihc open space areas 3.4.5. and 6.
'-�UlditioouDy. any fcnc:sxhichurcconxiructcd (ic. spIiLruilrcoccs) s. �.co1,ucolor
hichb!cndsinto 1110 surrnundinL, natural areas.
G'-I �c rn:i ��2 !c:0un[
,`n! ���ciu�/unrzn o��� u� pur r���jl^ �nnslr�c�innxn:U �c rccd:c�� ui�h ��ccic/ [o nn
G`5 lo hillside areas, die use o[}ime terraced pads shall be avoided.
(3'6 In hillside areas. the dcsign and luVOu[ nfxicccly shall rzupccl the nuiuczl 'and contours
and minimize lh: amount ofZr dingrcguiccd
G-7 Y�7here app|iCab}e, required permits shall be ObiaiocU from U. S. Army Corps of
EoLyioccrs and the State o[C:\iOoroizZ)cpaocncoto{Fish �md Game, -iiorto the issuance
0 f Z: permits.
O'8 VVbcn:posniblc, the natural drainage courses sbuU be retained to earn, xuc{uoe n/atecruo'
run-
off. }�uocnadcdrzioz�c structures shall bedcsi�nc� �obloodio�n �b� nu�ucul �c�ruiu
through careful godiogund the use of materials such usnatural boulders us rip rap for the
lioioaUfchannels.
O'9 On sicepiy Sloping sdcz. ,ffbOs shad bc made !0 iail0rlbc HOuyc to ±L, '.L=ain ibnouLh the
use of stepped foundation or a series of small pads at different levels, rather than the
creation Of one large level pad.
O'lO In Hillside areas. slopes Created by �:rudiog shall b}cod with existing con|c:rs. Guomcidc
shaped, stepped pads shall bcavoided.
G'll Tbercvcaczubon plan shall identify areas which must ho rrvc�ctated aou result o[
rcnmovulofdpaduuvc2otudoo' '�nydpadaorcgctaboothus ncroorcd must bereplaced
in accordance with said rrrcguubouplau'
O'12 [o hillside areas, grading shall bc restricted tu the minimum ncccSuary for the sidnuofu
house, azrugc, unlimited yard areas. Large terraced pads shall bczroidcd.
G-13 All' opco spacc areas s`uil be orc-served and off'Crcd to -he City of Suo Bcroaru`ioo
CSl�38, ,he ��utucnCcosccruocy, uo Open 3pac� Nlaioteouoc� [�istdct, cc other suitub}-
entity for maintenance.
~
H. Land Use
H'l �m.plccncoiuiionofthe C*.*'yG�;ocr�il Plun PnUcics and Ooiiouoc:s �n High 'Xiod
and Fire Hazard Areas b rc�ui�d.
BNDlNoS;kNDur[RR,D|Ncc(^ ./0i:iz.kT/n.Ns
'
Fontana Corners
specmc Plan vo-03
/ac'z1
'
'
T0 Prnm01c ��c J�vcl��ocn� o| 1101-11coUlcc-) and rcdVcccomMuia ���s. ���ibnoxl -hnnc
!mcssh:U be ingu!lcd in ihc den o[each home 6nrmnd:�os. [ucsimilzmuChincs and
�us|ncss r�o�,x. '
}'l 0r .orccnnjuhoo h :| nn: . upbasi�� nro,,r:nfbrlh: ��crc��c�B
xb�l � p���d � �� u�|�� �da�m�d � �cEu�n�� C�
_ _~ � o� pannucoL Said
traffic improvements include:
I. Provide a3-5O' (more or less) 000hbouod dual left-turn lxnc or. Coivc/3jty
parkway xlNJnbpzrk- Boulevard.
2. Provide u southbound hgh{'iuro lane and modify the oOrtbboundright'turn
luo-, to permit *,b.-u ncovccncn[s oo Little Mnuoiuio I}ri�c uiNurlbpurk
Boulevard.
�
provide u northbound debl'{urn signal overlap ut [nircoi,,y Parkway and
Nortbpurk8oulc,znd.
J'1 ?'an and c=17"ol', ircprorccnco1s to!he /lrccs -s rcquircd for each 76--., ofOic
J' Easements for the development of the access road shall be obtained prior to recordation
of the Final Map for the t)roject.
J'4 T�lccnnszruc,iono[jhcacccsrnudmustbccomp}cicpborzooccupaocyofuoydo/cOiog.
J'; SlLc distance Co roadways shall coo[boo 10 the C|ly of San Bernardino Siaodun±s
}-6 If the following improvements are not installed or bonded for by others prior to the
rrcundudoo of the first tract map that nncutcs lots for individual borocs in the Paradise
Bills project. lbco the nnzstcr developer shall puoioipulc on o fair share basis in dr,-
�bDo»/ioginnpro,emcna:
m Eliminate the southbound rigb['turnlane on Kendall Drivc and provide u
t'uoc.
o Signalize the University and l-2l5Interchange.
o Provide z northbound dual riLbl'[urn Ian,- for the 5 n[['rzro� �t
�ni`crsd� �uckxx�.
O pn]'iUI- 500' or more n[wcsbouoU dual }cb'jurn lane oo [nircrsi|r9:!r�-x uy
�t ',hcsouthlbound 1'I1-5 ramps. '
FINDINGS AND OVERRIDMG )ERATIONS
Fontana Corners
Specific Plan 90-03
Page 22
o Provide a 225' westbound dual left-iurn lane on North,-ark Boulevard at
Lr,�versity Parkway.
o Provide a separate right-only lane for the eastbound acproach on i i�crsity
Parkway at the 1-215 scuilhbound ramps.
0 Jl` .........\.cr`, r.\ 3cu:evarc at....:..: �.iUt:......0 ar.,•. ..._...»:.: ur. .._.
o Provide ? ' more ' r ii. ..-.
50 er...o e and a ,=�' o t:�� re jai le'• a:-- .:re tar ~crmooundi
and sou ' bound approaches respec:i.elv fer the c crsec:ic:: of l ..._. Park%Lav
at Kendail Drive.
K. l=ire ?rotection,Risk of T:cset
Roads
K-1 Road grades shall not exceed 157c. Collector and arterial streets shall not exceed jr,
K-2 Streets shall have paved width of 32' with parking on one side only.
K-3 Cul-de-sacs shall not exceed 600'. Cul-de-sac bulbs should be 40' radius, SO' diarn-,ter to curb
face, and shall be posted "No Parking-Fire Lane" or be 100' diameter.
K-* The ^r ortion of Paradis e Drive above e Badger Hill Drive shall be a rcadway. ;:;:•:;-;z a rayed
,width of at least 26' on each side Each side of the road should have a ?0' fuel -;oditication
zone. The zone on the west side will require an easement on private lots. This will result in a
roadway/fuel break approximately 92' wide. The main road should be posted "\o Parking -
Fire Lane," and should have fire hydrants spaced 330' apart on each side.
K-5 There shall be no dead end roads, other than cul-de-sacs, as described.
K-6 Emergency access points shall be provided in each area at approximately 350' intervals on
paved roads providing Fire Department access to the perimeter fuel modification areas behind
houses.
K-7 Drivewa}s shall not exceed 15cc, grade. Structures exceeding 110' from public r;z 4s shall have
;ire sprinklers. Driveways exceeding 150' shall be 20' wide, and shall have an approved fire
hydrant every 330',starting at entran ce.
K-S access to tote forest s:all be Prohibited by closure and any "all-terrain vehicle" roads leading
into the forest. Fire resistive fences shall be installed at any access roads which Pros- the forest
boundary(subject Forest Service review).
K-9 Street si=-s shall be ncn-ccmbustibin, rellectiye and readable at 100'.
{-:0 House.n=be s shall be on curbs in 4" numbers after paying is done.
FINDINGS AND OVERRIDrk G DERATIONS
Fontana Corners
Specific Plan 90-03
Pace 23
K-11 All roads shall be constractcd to Citv approval
K-12 Construction documents for 111 roads shall be submitted to and approved by the Fi.-e
D e partrrt en t.
Fire P-ztecticn Water System
K-1? An appro-cd re ?rotect on s..'S:c^:. .,.eetinZ the .a1^^ of`rational ?ro!cct
"\:PA; Stcndard _- an,. :he . _...Ic s ci C:'- :`.t',aer Dist;.;
systcm sii^.uld use °:. %atco ..c,<=..O;T—, -rovldl"_ _.'i.:1'' !70'l' t� .,,
-Main Sizes should be at least 8" in diameter. System lire flow should be at least 1500 GP.M X 4
hours (plus domestic flows) at pressures adequate to supply fire pumpers and fire sprinkler
systems. Individual hydrant flow shall be at least 1000 CP_M (onc `:;.'drant flowin(T). `Va:e-
domestic requirements. Water tanks should have automatic refill, and shall comply with NFPA
22. Any pumps used to supply fire flow shall be CL listed for fire service per tire. 20. and
shall have emergency power and proper protection.
K-14 Fire hydrants shall have clear access of 15' on each side. Blue dot markers should be installed
in roads indicating location of hydrants. Hydrant bases should have concrete pads to prevent
vegetative growth.
K-15 Anv static sources, such as public swimming pools. shall have a fire hydrant on a drain line.
Drain shall be-l•" in diameter. y
K-i5 '.vater tai-lk shall have a rated irc „epartment connection and cap.
K-17 Fire Department and Forest Service shall be provided with approved vehicle access to water
tank.
K-18 System shall provide fire flow during power or pump outages and breaks in critical mains.
K-19 The water system engineer shall assure that adequate fire flow and pressure will be available to
all points of the project.
K-20 "Fire sorinklers," wherever mentioned, shall comply with the applicable National Fire Protection
Association (NFPA) standard, and be approved by the Fire Department. The%" shall include
coverage in attics, garages, and combustible overhangs, such as solid wooden porch overhangs.
etc. (sprinkler head locations should be verified during detailed review of sprinkler plans).
Water-n ifs, ;fives, :._nts, 'W� =.d dist::but ;n s}se-n rust con p ith:
o American Water Works Association (AWWA)standards.
o Water Durveyor requirements.
o 7:re Dee^aert rcquirc news.
�W-y-,
o NFPA stantards (as applicable to the private on-site lire s%-stems).
FINDINGS AND OVERRIDING :RATION'S Q
Fontana Corners
Specific Plan 90-03
Page 24
`,Ve recommend U.L. listing/F_Ni approval (for fire service uses for mains, valves, and hydrants,
used in the orivate on-site fire SN'stems.
K Water system reliability and rcuundancy must consider the potentiai for cart-.1 ake or flood,
causing damage/failu e to system;breaks in critical main/power failure.
K-=? ?e.... .. ... .-:;e _ ion%%.ace. _ ppi.. shL-I ..ot n�c n t ^s.
K-=- Fare water suppi s :ail Inc pro:cctcd in a manner :"at .. .yiil ct --scd ...cs:ic curccscs
and thus be depleted. Storage systems shall be properly piur7 cd. , alyc?. and rcr otcl%,
monitored to an approved 24-hour location. Fire Department and Water Department shall be
provided with adequate system maps and instruction on system operation.
K-25 Any pumps which are critical to refill of reservoir not maintaining the ;-hour fire flow supply,
transfer between reservoirs, or to fire flow, shall be supplied by emergency generators. In
addition to two remote sources of underground power supply from the utility company, such
pumps should be remotely monitored.
K-26 A Fire Department connection"quadramese" and a fire hydrant shall be provided on the system
in close proximity to the water tank so that the Fire Department may boost pressure and/or flow
in the mains, if necessary.
K-27 Provision shall be included for filling tanks via water tank trucks, if necessary, due to a water
sucai" roblem.
K-28 Certain portions of fire protection sprinkler systems shall be protected from freezing.
K-29 The water main system shall be a looped and gridded system having primary feeders, secondary
feeders, and gridiron arrangement of distributor mains. Looped does not ncccssarily infer
looping mains on each street. The objective is to provide two independent routes of supply to all
points of a system, so that if a main is shut down or otherwise out of service, %eater can still be
routed to all areas with minimal exclusion of fire hydrants or sprinkler systems.
K-30 Mains serving hydrants shall be minimum 6" diameter or larger, if necessary, to provide needed
fire flow. Feeders and principal streets,etc.,may require 12".
K-31 isolation valves shall be located at approximately 500' intervals, and be pIaccd with the
philosophy of providing redundant routes of supply to all points.
:dra%ts of an 'droved iypc Shall be _30' apart aicng -cads, _.,..,.,,:crS _.r, pals, "vim
structures addressed thereon. Hydrants shall be located on right side of street, considering the
expected direction of travel of responding fire apparatus, using expected response routes, to
allow fire hose to be laid down a street without blocking the street. Hydrants shall be located on
each corner and in between, to provide the spacir.a CJI-dc-sacs S..r.. ::aye at or near
the bulb, as well as at the entrance and in between, if uhsiance diciZzs.
FINDINGS AND OVERRIDING CG d)J:JZ.�7'10.\s
Fontana Corners
Specific Plan 90-03
PaLe 25
N_ Hvdra;ms sliai! :!Lt 1:10aCik .'Lljoin ._'% ;Cqu.Uc disLan ir0111 struclur.-s s;ha ,c
provided.
K-3-3 Fire hydrants shall be located at ,.,ch point Of"CCCSS to a wildland area.
Fir- ',,,%drants o,,, .;n approved L%-c^. on road. and on ,!I other .,ncnalls and -oill-ctors. -A-herc
L
10 S'L U r c s a r 4%,S s 0 i :hereon. cn ch are
:-,oL wirer \' .. U :acre
1 r In. i all be
U ;I J
be
i0calCd at -:;cns and in between. :.- Crovidc the ;.cing.
K-36 If steel, cast iron, or ductile iron pipe are used, they must be internally lined and have exterior
coating. Consid,,r.1-c-Lzim: _'onditions in :he project. I
be excessive. C*,. %'-,"Ocit\'Of flow in water mains must not
K-37 Water system design and flow calculations shall be supplied to Fire Department for approval.
Calculation should model flows \vith pumps on and with pumps off, and with critical main out
of Scr-,-ice, to assure fire flow to all porLicns of project.
K-38 An emergency inter-connection feature shall be provided at end of system at its closest point to
City water system. if this system is not integrated into the City system. This could be a valved
connection between mains so that water should be fed from one System to another durim, an
emergency.
K-39 F i r e h n i s s h ail c .-c.,,n c c:;,d via a c r A a r c r lips 0 Iff th,C b ot t c- of nt,u b 11 c s%v i m n I i z pools.
-
as a redundant source of fire protection Aatcr. Hydrant location shall be dcL
ermincd by the City
Fire Department.
K-40 Public fire hydrants shall be installed and conform to Fire Department/City specifications and be
verified by Water Department to meet required fire flow prior to combustible construction or
storaL,e. This includes fire hydrants at 1000' spacing along the newly' proposed access road,
described in Response 3.1 of Final EIR. If direct access to lots is taken from this new loop
roadway, hydrants shall be placed at 500' intervals.
Structural Protection
The intent of:his section is .o provide structure enomhance guidelines or reducing the risk- associated
with a vegetation fire exposing habitable structures, their outbuildings,and their exterior appurtenances,
in the Paradise Hills Community, to an acceptable with , cota ble level. All stnicur-11 protect-on is subject to
review and approval by =-1 Department and Buil"Jinu De-parment, at the time.of submittal
of detailed
plans.
In order to recommend suitable fire protection for structures, the project site has been divided into two
(.2) areas using the "Hillsid,- Boundan, Line" 7 of Draft EIR).
Structures shall have protection designated as Level A or B based upon their location. Level A
protection shall be used above, the Hillside Boundary line and anywhcrc* %Vith slopes 30% or greater.
Level B may be used elsewhere. Specifically, required fire protection levels ar c a.:defined s
FINDINGS AND OVERRIDING CG DFRATIONS
Fontana Corners
Specific Plan 90-03
I'u,-,e 25
TI C i 'which is a SI o PC C)1,3()(, or .,,C area 2bC,,,c the
Hillside Boundary ;,I-Jerilifici ..I :he time this report
riticn: ard/or
-J C"U ro< a'c L d 0 ri C U;
Lr!!"1C1Cr juisldc Of fucl
Level B:
Structures. all portions of which are below the Hillside Boundary line, as identified at the time this
report was written.
General
K-41 Planning 6, portions of Planning Area 5, and all open space areas are subject to the most
extreme project fire risk (Figure 38). If any structures are proposed in these areas, they
must
hay- large lots,
intensified protection, and fuel modification techniques beyond that
proposed for "Level A" areas. Such protection features should be presented in a separate study
by a flire, consultant acceptable to the City and submitted for Fire Department, Forest Service,
Building Department. and Food Control District approval.
K-4? Sio-.,s and grading shall comply with City Fire Department and Cite Engineer Slopes grading 11 . I- _mccr requirements.
No _,ctures shall ','Q '.OcatLJ in narrow caneon mouths and nid;;- saddles.
Level A Protection
K-4, All habitable structures in Level "A" zones shall have approved interior fire sprinkler systems.
K-44 Class "A" non-combustible roof coverings with solid sheeting. Examples are approved slate,
clay, or concrete tiles. Any openings n2s at ends of roof covering must be fire-stooped, per UBC.
K-45 The exterior finish in Level "A" areas shall be "Level A" materials as follows:
o Those materials which are effective against severe fire exposures. Under such
exposure, materials do not readily ignite, doe not cam, or communicate fire, do not
possess a flying brand potential, and do not require frequent maintenance
to
maintain resistance. Materials shall withstand the weather extremes experienced at
this 7.roil-ct site. The architect will be responsible for the specification of such
materials to Firc Department and Building Dcoarr=crit satisfac,"cri. (No shinzIcs,
light wood, plastic or other flammable materials).
0 Siding on structures shall not be of flammable construction. For example, exterior
walls should pref-rably be stucco or masonry. Emzrcr %valls shall be of approved
one-hour construzlion of their equivalent materials and constrUC-lion, as approved by
Fire and Building Departments to protect structures from exposure Fire. The one-
hour rating does not include -glazed openings on :heir size. '.Windows will be
FINDINGS AND OVERRIDING` DERATIONS
Fontana Corners
Specific Plan 40-03
Page 2'
doubie-pane -!ass. to protect glazed openings. Sliding glass doors shall e d
,. b_ dual
pane anal tempered.
K-46 Habitable structures shall be set back at least 30' from the closest edge of the fuel modification
zone (usually the rear lot line).
K-47 Exposed zantilevered undersides of habitable portions of strictures r i.e. nousc;, including
ro;,,ms. balconies. ;antilev;red walls. floors, decks. -xlcrior stairs. shall be one our rated, or
have ao^roved fire scrinklers. Cantilevers shall have the same fire resistance as exterior wails.
K-48 Balconies, patio roofs, trellises, decks, and other similar overhangs must be protected by
approved fire sprinklers, or one-hour fire resistive construction, or be of heavy timber with
ducking or 2" thick (nominal) % ood or 1t/z" thick plywood planking. The outside edge of decks
and the undersides of structures overhanging a cliff, mountainside or canyon, or facing fuel
modification zones, shat be enclosed to exclude intrusion of fire, heat, sparks and debris.
K-49 Significant "out buildings" abutting fuel modification zones (sheds, barns, carports, storage
building and detached garages) shall have their exteriors adequately protected from fire, in the
same manner as dwellings,or be of non-combustible construction (same as metal).
K-50 Attic and raised floor vents on structures shall be as follows (or as approved by Building
Department):
1. Opening not to exceed 144 square inches, per vent.
2. Corrosion resistant ;/-" mesh metal screen.
3. No roof top attic ventilators.
4. Vents should not face fuel modification zones.
5. Eave vents not permitted.
K-51 Approved spark arrestors are required in all chimney and stove pipes (12-gauge welded or
h
woven wire mesh screen withI/Y' openings). Arrestors to be visible from street.
K-52 Glazing within 150' of nearest edge of fuel modification zones shall be minimized where
possible subject to architectural/design constraints. Dual pane glass shall be used on all
strictures. In areas cf severe fire exposure, approved Shuuers shall also be provided.
K-53 Combustible roof overhangs (eaves) on structures shall have same protection as exterior walls
and should be boxed in or shall have approved exterior sprinklers and be tightly sealed, have
solid 1 /_•' thick blocking between rafters and have not vents.
K-54 Property fences around perimeter lots adjacent to open space areas non-combustible. The fences
should not exceed 6' high,design to be subject to the approval of City. Fences shall have gates
at rear, and shall have house addresses thereon.
K-55 Exterior main doors on houses located on perimeter streets shall be solid core wood or equally
fire resistive. Glazing on doors should be of substantial thickness. Sliding glass doors shall be
dual pane and tempered.
FINDINGS AND OVERRIDL;G )ERATIONS
Fontana Corners
Specific Plan 90-03
Page Z8
K 6 Dwellin address shall be relle_:i:e on a contrastin-_, backcround color, c;,ily read;;blc from .he
street upon which Lhc structure fronts. Numbers shall be at least 4" high, readable from 100',
and comply with City standards. addresses may be internally illuminated, if they remain
readable from street during po%�er outages. Address numbers shall also be on curb, after paving
is completed.
K 5 St^u=_,res shale a, 60' ^ar..
K 5? No combustible plumbing orve^s shall be allo%ved on tl:c outside of S:ructures.
Level B Protection
K-59 Class "A" non-combustible roof coverings with solid sheeting are required. Examples are
approved slate, clay or concrete tiles. Any openings at ends of roof coverings must be fire
stopped, per liBC. v
K-60 The exterior finish shall be "Level B"; as follows:
o "Level B" material shall be effective against moderate fire exposures, and afford a
moderate degree of protection to the structure. This material does not readily ignite,
does not carry or communicate fire, does not possess a flying brand 'hazard, and
does not require frequent maintenance to maintain resistance. It shall be resistant to
the weather extrcmcs experienced on the project site. The arc:itcct shall be
responsible for the specification of such materials to Fire Department and Building
Department satisfaction. No shingles, light wood, plastic or other flammable
materials are allowed.
o Level "B" materials have a higher level of fire resistance than materials normally
used in non wildland areas of a community.
o Level "A" materials have a higher level of resistance than Level "B" materials.
o Siding on structures shall not be of flammable construction. For example, exterior
walls should preferably be stucco or masonry.
K-61 Glazing shall be double pane glass.
K-62 Balconies, patio roofs, trellises, decks and other similar overhangs must protected by
approved ire sprinklers, or one-hour fire resistive construction, or be of hea% % timber with
decking of 2" thick (nominal) wood or 1'/2" thick plywood planking.
K-63 Attic and raised floor vents on structures shall be as follows (or as approved by Building
Department):
Opening shall not exceed 144 square inches, per vent.
2.
Corrosion resistant '/_" mesh metal screen.
FINDI\GS AND OVERRIDING ,. _DERATIO\S
Fontana Corners
Specific Plan 90-03
Page 29
_. No ..-:)cf tot; attic•:crtilamrs.
Eave vents should be avoided, if possible.
K-64 Approved spark arrestors are required in all chimnc..s and stove piocs 0?-_auLC weird cr
woven wire mesh sc,,een with ;':" openings). Arrestors shall be visible from the street.
K-65 Dwellinz address shall be refective on a contrasting background color, easily read able 11—c-: ;..
st:-eet to 3 distance 0:'l ', ::^on w. jch structure fren:s. lumbers si:ai: be a..e
compiv with City standards. Numbers :nay be intcm:illy illuminated, if they rcm,.:tin visible =re n
street during power outages. Address numbers shall aiso be on curb, after paving: is completed.
K-66 Structures shall be at least _0' :pan.
K-67 A hose bib shall be provided to each side of structure.
K-68 Helipads. One dedicated helipad shall be provided on or in close proximity to the project site
(subject to the approval of the USFS). (Figures 39 and 40). The pad shall be 125' X 125' -�
shall be submitted to the U.S.F.S. for review. A fire hydrant shall be provided at the pad. A
second area suitable for use as a helipad area and staging area shall be provided in the :over
(Level B) area of the project.
K-69 Safety Zone. A 100' X 100' safety zone shall be provided in the northern area. This safet•: zone
may use a cleared area within a park or open space. The purpose of this zone is to provide'a safe
haven for citizens and ire iii htcrs. This zone may be the same as the helipad required
above.
K-70 Fuel Modification Concepts. The Paradise Hills project is in an area designated as a high
wildland fire hazard zone. To adequately ensure the best protection for residents of this
subdivision, the fire protection elements must be complemented by a comprehensive vegetation
management plan and program. The vegetation management plan shall be completed pror to
construction, must be reviewed and approved by the Fire Department, and shall include the
following elements:
1. Fire resistive,drought adaptive planting recommendations
2. A defensible space zone around each structure.
_. Subdivision perimeter protection(Fuel Modification Zones).
4. Use of roads and trails to complement defensible space zones.
5. Clearance of vegetation alongside roads and trails.
6. A maintenance plan to maintain all elements of the plan.
7. Landscape and lighting district maintenance program.
8. CC&R's on all lots regarding the risk and fire safe landscape requirements.
9. Means to irrigate during extended droughts.
K-71 More details regarding Zone A shall be submitted to the City for review and approval. The
details shall focus specifically on "thinning and pruning" to reduce fuel.
M'DIN'GS AND OVERRIDPIG `DERATIO\S
Fontana Corners
Specific Plan 90-03
Page 30
K-72 A planting plan on a large detailed map showing location of shrub and tree ,plantin-s and density
shall be submittec for review tv the Fire Dcoartrrlcnt alter project acprov.11.
K-73 Defensible Space Concept. Ea;,",structure shall be two irrigated planting zones. The first zcne
must extend outward from the structure's foundation 10 feet. In this zone only fire resistive,
low profile, dreughr adaptive plantings shall be allo%vcd. In this zone, some shrubs could be
planted if they were isolated !patchy continuity) and limbed up. The next Lone shall extend
from 10 to 30 feet out from the foundation or to lot line, whichever is further. In this zone, trees
and slirlbs shall be dreught-adaptlye and :ire resiSti` c. Additicnall.', it CCS Si t_iu be ll. bid up
to separate ground vegetation from aerial canopies. Shrubs should be adequately spaced to keep
from creating a continuous canopy between ground vegetation and aerial canopy foliage (trees).
K-74 Perimeter Protection. Because of the high fire hazard posed in Badgcr and Sycamore Canyons,
a 300' fuel modification zone, beginning at outside edges of individual lot lines, shall be
imposed to ensure that structures built in Planning Area .5 area are adequatcly protected from
radiant heat. Based on recommendations from the fire safety plan (Appendix NI of the Draft
EIR), structures built east of the riparian zone (which is a portion of Planning Area 6) or in the
westerly portion of Planning Area 5 (Figure 38 of the Draft EIR) would require, significantly
intensified protection beyond that proposed for Level "A". These recommendations must
remain conceptual at this time, until detailed grading and site plans are done. Those plans may
indicate that these concepts need to be modified to allow more lots or fewer lots in some areas.
Figures 41, 42, and 43 of the Draft EIR are illustrations of the conceptual fuel modification
zones and construction limits.
In the remaining perimeter areas of the project, a 1,00' fuel modification zone beginning at the
outer edges of individual lot lines, will provide adequate protection.
The Riparian corridor must be cleaned up with down-dead fuels removed, and trees must be
limbed up.
A mosaic design should be used in the fuel modification zone design to create more "edge" and
reduce the harsh visual impact.
All fuel modification areas will require maintenance on a regular basis to ensure that the fuel
modification zone is kept functional.
Detailed plans for the configuration, management, and maintenance of vegetation within fuel
modification zones shall be reviewed by a wildland fire safety consultant, submitted to the Fire
Department and U.S.F.S. for review and approval.
K-75 Roads and Trails. All roads, paths, and trails in flammable vegetative areas shall have 10' on
each side cleared of flammable vegetation and grasses. The main road in the project shall have
20 clearance on each side. Any re-vegetation of these areas shall be per the approved fuel
modification plan. -
K-76 Fire/Flood Sequence. The Badger and Sycamore chaparral covered watershed have sufficient
fuel loading, age class to carry a major acreage fire with temperatures sufficient enough to
FINDINGS AND OVERRIDE( ►' ''DERATIONS
Fontana Corners
Specific Plan 90-03
Page 31
produce a hydrophobic soils. this could pose a serious fire/flood sequence situation and fhr^at to
structures in Badger Canyon drainage. Careful pl;inning., must occur if st,—�Ictures are going to
built in upper Badger drainage. The fuel modification zone design trust also be carefully
planned so that it does not contribute to potential erosion.
K-77 Detailed Plans. Detailed fuel modification and landscape plans shall be Sucmitted after project
approval for Fire Department, and Forest Service review and approval prior to construction.
K-78 Homeowner Fire Safety ;education Manual. The owner shall produce a homecv.nee ire safety
and vegetation maintenance manual which will be given to all purchasers and occupants within
the Paradise Hills project. This manual shall disclose fire risks, and serve to notif., the occupant
about fire prevention, wildland fire safety, vegetation management, and emergency procedures.
A copy of the Fire Protection Plan shall be included in the maintenance manual.
K-79 Prior to the issuance of any grading permits, a fuel modification plan and program shall be
approved by the Fire Chief. The plan shall show the special treatment to achieve an acceptable
level of risk in regard to the exposures of structures to flammable vegetation and shall address:
The method of removal and installation, mechanical or hand labor, and provisions for its
continuous maintenance. The approved fuel modification plan shall be installed prior to the
issuance of building permits, under the supervision of the Fire Chief, and completed prior to the
issuance of applicable use and occupancy permits.
K-80 A construction phasing plan shall be submitted to the Fire Department prier to the approval of
each subsequent tentative map for the project. The plan shall show access, fuel modification
and hvdrant locations.
K-81 The master developer shall participate,to the extent of its fair share, in a-Mello-Roos District, or
other funding district, established in the Verdemont region for the purpose of providing
additional fire protection,in the form of a new fire station, to numerous projects and property
owners.
K-82 Prior to the recordation of a final tract/parcel map, a 12"-wide fire protection access easement to
wildland (open space) shall be approved by the Fire Chief and dedicated to the City of San
Bernardino. The CC&R's shall contain provisions which prohibit obstructions within the fire
protection access easement. Any modifications within the easement, such as speed bumps,
control gates, or changes in parking plan,require the approval of the Fire Chief.
K-83 Prior to the issuance of any certificates of use and occupancy, all fire hydrants shall have a
"Blue Reflective Pavement Marker" indicating its location on the street or dive per Citv of San
Bernardino standards. On private property, these markers are to maintained in good condition
by the property owner.
K-84 Fire wood stored in quantities greater than one half-cord shall be stored no less than 20' from a
residence or substantial outbuilding. If fire wood is stored immediately adjacent to a residence,
it must be inside a sprinklered structure.
FINDINGS AND OVERRIDING "'DERATIONS Q
Fontana Corners
Specific Plan 90-03
Page 32
M. Water Services
M-1 Water facilities must be desi�_ned and instailed in accordance with the rcauirements and
specification of the City of San Bernardino Municipal Water Department and San Bernardino
County Department of Health.
M-2 Assurance for the provision of adequate water service is required prior to recordation of any
final subdivision map, in accordance with the State Subdivision Map Act. A "will serve" letter
.must be secured from the City 'Municipal Water Department prior to the approval of each
tentative map.
M-3 The capital cost of new water facilities to serve the project site will be the responsibility of the
applicant. Such facilities must be dedicated to the City after construction. Prior to the
construction of any on-site water reservoirs and pump stations, an environmental review must be
conducted to determine the possibility of impacts from the construction and operation.
M-4 Water conservation measures must be incorporated into the project plan to include water saving
devices and systems, landscape design, and use of reclaimed water. The Department of Water
Resources methods of achieving this goal are listed on pages 172 to 174 of the Draft EIR.
M-5 Additionally, the State of California Department of Water Resources imposes the following
requirements for water-efficient plumbing fixtures in structures:
o Health and Safety Code, Section 17921.3, requires low-flush toilets and urinals.
o Health and Safety Code, Section 4047, prohibits installation of residential water
softening or conditioning appliances unless, in most instances, water conservation
devices on fixtures using softened or conditioned water are installed.
o Title 20, California Administrative Code, Section 1604(f), established efficiency
standards that give the maximum flow rate of all new shower heads, lavatory
faucets, and sink faucets.
o Title 20, California Administrative Code, Section 1606(b), prohibits the sale of
fixtures that do not comply with regulations.
o Title 24, California Administrative Code, Section 2-5307(b), prohibits the
installation of fixtures unless the manufacturer has certified to the CEC compliance
with the flow rate standards.
o Title 24, California Administrative Code, Section 2-5352(i) and 0), address pipe
insulation requirements. Insulation of water heating systems is also required.
FINDINGS AND OVERRIDLNC� IDERATIONS Q
Fontana Corners
Specific Plan 90-03
Page 33
O. Public Schools
0-1 Prior to recordation of the Final N1ap, the applicant shall enter into an agreement with the school
district to provide for school facilities. Such an agreement may include any of the following
a. Creation of a financing mechanism such as a ylcllo-Roos or Community Facilities
District.
b. Purchase of a school site.
c. Payment of fees.
0-2 The applicant will cooperate with the school district to advise them of expected student loading
at the time of tract map submittal.
Q. Libraries
Q-1 The project developer will participate in any City fee assessment relative to libran, facilities.
R. Solid Waste
R-1 Homes constructed within the proposed project area shall be equipped with trash compactors.
S. Energy
S-1 Construction occurring within the project will be done in accordance with the State building
regulations and the Uniform Building Code (UBC) as they relate to energy conservation
techniques, including solar heating, and passive energy conservation techniques such as use of
landscaping to provide shading of buildings and large expanses of paving.
S-2 Development plans shall be made available to all utilities to assist with the engineering, design,
and construction of necessary utility services to the site.
T. Parks and Recreation
T-1 The project developer shall pay park fees or dedicate parkland to the City in lieu of fees, as
provided for in the City municipal code.
U. Cultural Resources
U-1 A qualified archaeologist empowered to halt grading shall be present during grading activities to
monitor for the presence of cultural resources.
V. Paleontology
V-1 A paleontologic grading monitor shall be present during grading of the Potato Formation
sediments and the Older Alluvium. The monitoring of the Older Alluvium shall focus on the
terraced deposits and valley fill. The following procedures shall be implemented during
monitoring:
FINDLNGS AND OVERRIDL\G' -I'MERATIONS
Fontana Corners
Specific Plan 90-03
Page 34
a. The monitor must be empowered to temporarily halt or re-direct excavation
equipment while fossils are being removed. The monitor shall be equipped to
speedily collect specimens if they are encountered.
b. The monitor, with assistance if necessary, shall collect individual fossils and/or
samples of fossil-bearing sediments. If specimens of small animal species are
encountered, the most time and cost efficient method of recovery is to remove a
selected volume of fossil-bearing earth from the grading area and stockpile it off-
site for later processing.
c. Fossils recovered during earth-moving or as a result of screen-washing of sediment
samples should be cleaned and prepared sufficiently to allow identification. This
allows the fossils to be described in a report of findings, and reduces the volume of
matrix around specimen prior to storage, thus reducing storage costs.
d. A report of findings shall be prepared and submitted to the City Community
Development Department upon completion of mitigation. This report would
minimally include a statement of the types of paleontologic resources found, the
methods and procedures used to recover them, an inventory of the specimens
recovered,and a statement of their scientific significance.
e. Any paleontologic specimens recovered as a result of mitigation should be donated
to a qualified scientific institution where they would be afforded long-term
preservation, and can be retrieved for further scientific study.
ajd/ds/y:ag4 9011927
- (-0
ATTACHMENT "C"
1. The phasing of parks, trails, open space, and fuel
modification, and responsibility for maintenance shall be
illustrated in the tabular format shown in Attachment "D" of
this staff report and included in the implementation section
of the Specific Plan. The information in the table shall be
revised to reflect the responsible party for maintenance of
the open space and fuel modification areas as determined by
the Planning Commission.
2. Slope stability and landslide potential shall be addressed in
all subsequent geology studies addressing any portion of the
project site.
3. The Specific Plan shall be revised to remove all references to
mountain biking and biking trails.
4. The developer shall notify a new owner of any subdivision lots
located within 500 feet of the San Bernardino Valley Water
District pipeline, at the time of the purchase agreement and
at the close of escrow of the location, size, and type of the
San Bernardino Valley Water District pipeline.
ATTACHMENT "D"
PARKS AND OPEN SPACE CONSTRUCTION PHASING
AND MAINTENANCE RESPONSIBILITY
CONSTRUCTION MAINTENANCE
AMENITY TIMING RESPONSIBLE PARTY MECHANISM RESPONSIBLE PARTY
Entry Prior to recordation Master Developer Landscape City of San
Monumen- of 1st Final Map Lighting Bernardino
tation allowing development District
Park Prior to recordation Master Developer Landscape City of San
of 1st Final Map Lighting Bernardino
allowing development District
Trails Foothill trails prior Master Developer Landscape City of San
to recordation of 1st Lighting Bernardino
Final Map allowing District
development in the
Foothill area
Hillside trails prior
to recordation of 1st
Final Map allowing
development in the
Hillside area.
Fuel Mod Prior to recordation Builder-Developer Landscape City of San
Zones of the Final Map which Lighting Bernardino
necessitates the instal- District
lation of that portion
of Fuel Mod Zone.
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ATTACHMENT "4"
0 0
January 22, 1993 Project No. 9011927
LEGAL DESCRIPTION
General Plan Amendment 91-07
City of San Bernardino
PARCEL A
That portion of Sections 5, 8 and 9, Township 1 North, Range 4 West, San
Bernardino Base and Meridian, in the County of San Bernardino, State of California, as the
lines of the government survey many be extended across the Muscupiabe Rancho,
described as follows:
Commencing at Corner No. 28 of said Rancho according to the Perrin Survey;
Thence N.89 026'45"W. along the Northerly line of said line 27-28 of Muscupiabe
Rancho between corners 27 and 28 of said Rancho according to said survey, a distance of
516.90 feet to the Northeast corner of that certain parcel of land conveyed to C.F. Martin by
Deed recorded February 14, 1922 in Book 740 of Deeds at page 199 thereof Records of
said County;
The following five (5) courses being along the Easterly line of said Parcel of land;
Thence S.22 012'15"W., a distance of 626.13 feet;
Thence S.40 044'15"W., a distance of 241.56 feet;
Thence S.1 1021'45"E., a distance of 127.05 feet;
Thence S.40°45'15"W., a distance of 283.26 feet;
Thence S.15 055'15"W., a distance of 71.09 feet to the point of beginning of the parcel
of land to be described;
Thence S.15 055'15"W., a distance of 373.21 feet;
Thence S.66 055'15"W., a distance of 345.00 feet;
Thence S.51046'1 5"W., a distance of 174.26 feet to an angle point in the Northerly
line of Parcel 4 as described by Deed to the San Bernardino County Flood Control District
recorded April 1, 1940 in book 1415, at page 37, Official Records of said County.
The following four (4) courses being along said Northerly line;
Thence S.84 024'39"W., a distance of 909.55 feet;
Thence N.69 035'45"W., a distance of 301.99 feet;
Thence S.76050'1 0"W., a distance of 318.82 feet;
ATTACHMENT 114"
General Plan Amendment �, . 07
City of San Bernardino
January 22, 1993
Page 2
Thence Westerly on a non-tangent curve, concave Southerly having a radius of
2050.00 feet, through an angle of 23 033'30", an arc length of 842.90 feet to the Westerly
line of the Northeast one-quarter of said Section 8 (the initial radial line bears
N.30°33'1 0"E.);
Thence N.00°53'43"W. along said Westerly line a distance of 1592.61 feet to the
Northerly line of said Rancho;
Thence S.89 034'37"E. along said Northerly line a distance of 42.87 feet;
Thence N.00°47'1 0"W., a distance of 117.29 feet;
Thence S.61°29'55"E., a distance of 161.15 feet;
Thence S.89 034'04"E., a distance of 64.06 feet;
Thence N.47 029'22"E., a distance of 82.78 feet;
Thence S.70 025'32"E., a distance of 93.47 feet;
Thence S.45006'1 0"W., a distance of 86.20 feet;
Thence S.00 025'56"W., a distance of 95.63 feet;
Thence S.32 021'58"E., a distance of 150.23 feet;
Thence S.88 025'30"E., a distance of 122.96 feet;
Thence N.58 006'28"E., a distance of 96.30 feet;
Thence S.26 050'33"E., a distance of 86.90 feet;
Thence S.64 013'30"W., a distance of 158.25 feet;
Thence S.00 025'56"W., a distance of 53.95 feet;
Thence S.43 021'59"E., a distance of 137.59 feet;
Thence S.89 134'04"E., a distance of 183.53 feet;
Thence N.47 039'37"E., a distance of 146.24 feet;
Thence N.89 017'57"E., a distance of 309.99 feet;
Thence S.70 004'17"E., a distance of 161.64 feet;
Thence S.88 008'58"E., a distance of 247.67 feet;
Thence S.44°34'38"E., a distance of 83.24 feet;
Thence N.45 053'25"E., a distance of 429.98 feet;
Thence S.23 015'58"E., a distance of 99.08 feet;
Thence S.43 043'20"E., a distance of 136.71 feet;
Thence S.78 046'28"E., a distance of 91.66 feet;
Thence S.02 055'13"W., a distance of 79.77 feet;
General Plan Amendment : .-07 4
City of San Bernardino
January 22, 1993
Page 3
Thence S.47024'1 8"W., a distance of 208.43 feet;
Thence S.82"08'1 6"W., a distance of 178.47 feet;
Thence N.80'08'1 4"W., a distance of 142.17 feet;
I
i
Thence S.46 051'20"W., a distance of 152.96 feet;
Thence S.79 020'37"E., a distance of 186.49 feet;
Thence S.44014'1 8"E., a distance of 68.96 feet;
Thence S.83 017'27"E., a distance of 179.41 feet;
Thence S.50 016'09"E., a distance of 172.28 feet;
Thence S.68 015'27"E., a distance of 310.37 feet;
Thence S.46056'1 4"E., a distance of 117.67 feet;
Thence S.70 004'17"E., a distance of 205.72 feet;
Thence N.88 032'45"E., a distance of 147.04 feet to the point of beginning;
The above described parcel of land contains 80.32 acres more or less.
PARCEL B
That portion of the Rancho Muscupiabe lying within Section 9, Township 1 North,
Range 4 West, San Bernardino Base and Meridian in the County of San Bernardino, State
of California as said section is defined by projection of U.S. Government Sectional Lines
across said Rancho, described as follows:
Commencing at Rancho Corner M-28, on line 27-28, Rancho Muscupiabe according
to the Perrin Survey;
Thence S.04 008'50"W. along the Easterly line of said Rancho a distance of 1785.02
feet to Corner M-29 of said Rancho;
Thence S.62 057'39"E. along the Northeasterly line of said Rancho a distance of
785.03 feet to an angle point in the Northerly line of Parcel 4 as described by Deed to the
San Bernardino County Flood Control District recorded April 1, 1940 in Book 1415, at page
37, Official Records of said County;
Thence S.02 027'39"E. along the Westerly line of said Parcel 4, a distance of 175.02
feet to the point of beginning of the Parcel of land to be described;
General Plan Amendment :, . -07 �+
City of San Bernardino
January 22, 1993
Page 4
The following four (4) courses being along the Westerly, Northerly and Easterly line of
said Parcel 4;
Thence S.02 027'39"E., a distance of 351.39 feet;
Thence S.24 013'45"W., a distance of 581.46 feet;
Thence N.38 047'39"W., a distance of 1666.20 feet;
Thence N.29 012'21"E., a distance of 388.75 feet;
Thence S.61 016'03"E., a distance of 189.66 feet;
Thence S.35 046'55"E., a distance of 369.26 feet;
Thence S.86 046'19"E., a distance of 100.54 feet;
Thence S.44 023'58"E., a distance of 262.78 feet;
Thence S.88°29'1 0"E., a distance of 129 QA feet;
Thence N.41°51'55"E., a distance of 39.25 feet;
Thence N.04 031'20"E., a distance of 99.32 feet;
Thence S.62 057'39"E., a distance of 118.60 feet;
Thence S.45 012'47"W., a distance of 64.74 feet;
Thence S.05 010'52"W., a distance of 62.74 feet;
Thence S.44 030'35"E., a distance of 129.91 feet;
Thence S.67°22'1 0"E., a distance of 11 L, aet to the point of beginning;
The above described parcel of land contains 19.96 acres, more or less.
PARCEL C
That portion of the Rancho Muscupiabe lying within Section 9, Township 1 North,
Range 4 West, San Bernardino Base and Meridian as said section is definded by projection
of U.S. Government Sectional Lines across said Rancho, described as follows:
Commencing at Rancho Corner M-28, on line 27-28 of the Rancho Muscupiabe
according to the Perrin Survey;
Thence S.04 008'55"W. along the Easterly line of said Rancho a distance of 1785.02
feet to Rancho Corner M-29 of said Rancho;
General Plan Amendment ,- . 07
City of San Bernardino
January 22, 1993
Page 5
Thence S.62°57'39"E. along the Northeasterly line of said Rancho a distance of
980.81 feet to the Easterly line of Parcel 4 as described by Deed to the San Bernardino
County Flood Control District recorded April 1, 1940 in Book 1415, at page 37, Official
Records of San Bernardino County, California;
Thence S.04°00'09"E. along said Easterly line a distance of 378.81 feet to the point of
beginning of the parcel of land to be described;
Thence S.60 1155'37"E., a distance of 424.80 feet;
Thence S.87'1 7'00"E., a distance of 200.22 feet;
Thence S.52 016'49"E., a distance of 317.73 feet;
Thence S.76009'1 0"E., a distance of 672.72 feet to the Northerly line of that certain
Parcel of land conveyed to said District by Deed recorded May 14, 1957 in Book 4229, at
page 497 thereof, Official Records of said County;
Thence S.59°35'34"W. along said Northerly line, a distance of 396.17 feet;
Thence N.74 006'33"W., a distance of 1145.84 feet to a point on the Easterly line of
said Parcel 4;
Thence N.04°00'09"W. along said Easterly line, a distance of 459.21 feet to the point
of beginning.
The above described parcel of land contains 9.98 acres, more or less.
"I, , � ! ESCRIPTION PR ARED UNDER THE SUPERVISION OF:
Qom.J,., t� ,� 'rte✓
Ew 9-3 95 / ZZ
hen 'Malley Dat
J' ` 4718 Fen
ASSOCIATES, INC.
of ca��
SMO:kat
1eg:1eg:go8
Alllft
REDLINED DRAFT DATrn S/29/92
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN
P.O. BOX 1148
RIVERSIDE, CALIFORNIA 92502-1148
ATTENTION: FRANK J. DELANY, ESQ.
SP&co Abe" This lire For RReerdRr-t us*
DEVELOPMENT AGREEMENT
between
FONTANA CORNRW III
and
CITY OF SAN BBRNARDINO
V RU it6W I R�DRVLLO►.AOM
ATTACHMENT "5"
TABLE OF CONTENTS
Section Pace
1 Definitions. . . . . .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Exhibits. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3 Mutual Benefits. .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4 Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5 Binding Effect of Agreement. . . . . . . . . . . . . . . . . . . . . . 3
6 Project as a Private Undertaking. . . . . . . . . . . . . . . . . 3
7 Tern. . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8 Changes in Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9 Hold Harmless. . .. .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 Vested Right. . . . ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
?i General Development of the Project. . . . . . . . . . . . . . . 5
i
12 Rules, Regulations and Official Policies. . . . . . . . . 8
13 Amendment or Cancellation of Agreement. . . . . . . . . . . 8
14 Enforcement. . . . ........ . . .. . . . . . . . . . . . . . . . . . . . . . . 8
15 Periodic Review of Compliance With Agreement. . . . . 8
16 Events of Default..... . .... . . . . . . . . . . . . . . . . . . . . . . 8
17 Institution of Legal Action. . . . . . . . . . . . . . . . . ... .. 9
isWaivers and Delays....... . . .. . . .. . . . . . . . . . . . . . . .. 10
19 Notices. .. . . . .. ................ .. . . . . . . .. . ....... 10
20 Attorney's Fees. ..... .. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
21 'transfers and Assigmments.. .. . . .. . . . . . . . . . . . . .. .. 10
22 Cooperation in the Event of Legal Challenge. . . . .. 11
23 Eminent Domain. .............. . . .. . . . . . . . . . . . ..... 11
24 Authority to Execute.... ..... . . . . . . . . . . . . . . . . .... 11
25 Recordation. . . .. ..... ..... . . . . . . . . . . . . . . . . . . . . . .. 11
26 Protection of Mortgage Holders. . . . . . . . . . . . . .. . . . . 11
27 Severability of Terms. . . ... . . . . . . . . . . . . . . . . . . . . . . 12
28 Subsequent Amendment to Authorizing Statute. . . . . . 12
29 Section Headings......... . .. . . . . . . . . . . . . . . . . . . . . . 12
30 Incorporation. . . .......... . . .. . . . . . . . . . . . . .. .. . . . 12
31 Rules of Construction and Miscellaneous Terms.. . . 12
32 Effect on Title. ..... . .. . .. . . . . . . . . . . . . . . . . . .. . . . 12
VR A10GAOMDEMOP.AGM i
EXHIBIT
"A" LEGAL DESCRIPTION OF PROPERTY
"B" STANDARDS AND SPECIFICATIONS FOR DEVELOPMENT OF THE
PROPERTY: PARADISE HILLS SPECIFIC PLAN
"C" ASSESSMENTS AND FEES APPLICABLE TO DEVELOPMENT OF
THE PROPERTY
"D" REIMBURSEMENT AGREEMENT
VRU296WIR1DVITl ►.AGM ii
DEMOPHUT AGREEMEb
(Pursuant to Government Code
Sections 65864 - 65869.5)
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into on
1992, between FONTANA CORNERS III, a California
limited partnershi; ("Developer") , and the CITY OF SAN BERNARDINO,
a municipal corporation organized and existing under the laws of
the State of California ("City" . Developer and City are sometimes
collectively referred to herein as the "parties. "
R E C I T A L S
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized
terms which are defined in this Agreement. The parties intend to
refer to those definitions in conjunction with the use thereof in
these Recitals.
B. California Government Code ("Government Code") Sections
65864-65863.5 (collectively the "Development Agreement Law")
authorizes the City to enter into binding development agreements
with persons having a legal or equitable interest in real property
for the development of such property, all for the purpose of
strengthening the public planning process, encouraging private
participation and comprehensive planning and reducing the economic
costs of such development.
C. This Agreement is adopted pursuant to Government Code
Section 65865.
D. Developer is the fee owner and proposed developer of
approximately four hundred four (404) acres of land as described on
Exhibit "A" (the "Property") , substantially all of which is located
in the City. A portion of the Property is in the process of being
annexed to the City.
E. Developer proposes to develop a multi-phased master-
planned single family residential community (the "Project")
requiring major investment in public facilities and substantial
front end investment in on-site and off-site improvements in order
to make the Project feasible.
F. City's General Plan designation for the Property is
single family residential. Developer and City desire to provide
through this Development Agreement certain development criteria and
parameters of allowable development applicable to the Property
which will provide for maximum, efficient utilization of the
Property in accordance with sound planning principles as adopted by
the City.
G. Developer has requested City to consider entering into a
development agreement relating to the Project and proceedings have
been taken in accordance with City's rules and regulations relating
to development agreements.
H. The City Council has found that this Agreement:
(a) Is consistent with the objectives, policies, general
land uses and programs specified in the City's General P1nn, the
City's Development Code, and the Paradise Hills Specific Plan (as
that term is defined below) ; and
City. (b) Will promote the welfare and public interest of the
I. On , 199 , the City Council of the City
adopted Resolution No. _, approving this Agreement with Developer.
1-8.]16%OWDE V ELO►.AGM 1
J. City has found and determined that the execution of this
Agreement is in the best interest of the public health, safety and
general welfare of City and its residents and that adopting this
Agreement constitutes a present exercise of its police power.
A G R E E M E N T
WHEREFORE, the parties agree as follows: '
1. Definitions.
1_1 "Agreement" is this Development Agreement.
1,2 "Agreement Date" is the date this Agreement is
approved by the City Council.
1_1 "City" is the City of San Bernardino, California.
1.A "Development Plan" is all of those ordinances,
resolutions, codes (except as provided in Section 12.1) , rules,
regulations and official policies of City governing the development
and use of zhe Property as of the Agreement Date, including,
without limitation, the permitted uses of the Property, the density
and intensity of use, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for
public purposes, and the design, improvement and construction
standards and specifications applicable to the development of the
Property. Specifically, but without limitation, the Development
Plan for purposes of this Agreement shall, except as otherwise
rovided in the Paradise Hills Specific Plan allow Developer to
develop the Property as a multi-phased, master-planned single
family residential community with five hundred four (504) single
family residential dwelling units which will result in an average
residential density of 1.24 dwelling units per acre for the 404
acres of the Property. Development of the single family
residential dwelling units shall generally be in accordance with
the standards and specifications of the Paradise Hills Specific
Plan as approved by City which such standards and requi-ements
shall, to the extent they are Ain excess of the minimum standards
and requirements of the CiLZ Develo meat Code as of the Agreement
ate, supersede an replace such minimum standards �L
requirements. To the extent any of the foregoing ace amended from
time to time with the consent of Developer, th.= evelopment Plan"
shall include such maters as so amended. ii :r.withsr.•-:ling the
immediately preceding sentence, if this Agreement is r=q„i.ed by
law to be amp-ided in order for the "Development Plan” to include
such amendments, the "Development Plan" shall not include such
amendments unless and until this Agreement is so amended.
1-i "Developer" is Fontana Corners III, a California
limited partnership, and its successors in interest to all or any
part of the Property.
1-,E "Effective Date" is that date which is the later to
occur of: (a) the time for filing a referendum petition relating to
this Agreement expires if no such petition is filed within such
period; or (b) the results of a referendum election are declared
approving this Agreement if a referendum petition is filed within
the applicable period; or (c) in the event of any 1^3al action
relating to or affecting the validity or enforceability of this
Agreement, including without limitation any action challenging the
approval or validity of this Agreement or any referendum related to
it, the date of dismissal with prejudice of the action, or of final
disposition of the action by the court and exhaustion or
termination of all applicable periods for judicial review, whether
by writ, appeal, or otherwise.
1.2 "Paradise Hills Specific Plan" is that certain
Specific Plan adopted by the City pursuant to California Government
Code Section 65450, et seq. , which Plan establishes the standards
and specifications for the Project.
VNIAM01 RID EVELOVAGM 2
•
l.� "Project" he mastereplannedel sp?ngle ofamily
Property as a multi-phased,
residential community.
1,1 "Property" is the real property on which the Project
is, or will be, located as described on Exhibit "A" .
2. Exhibits. The following documents are referred to in
this Agreement, attached hereto and incorporated herein by this
reference:
L :r noelanatlOn nesc'rintion
Exh u
A Legal Description of the Property
B Standards and Specifications for
Development of the Property:
Paradise Hills Specific Plan
C Assessments and Fees Applicable to
Development of the Property
D Reimbursement Agreement
3 ••t,tua� Bene its. This Agreement is entered into for the
purpose of carrying out the Development Plan for the Project in a
manner that will insure certain anticipated benefits to both City
(including, witho+:t limitation, residents of City) and Developer as
set forth in this seac=ioof each party Developer
the Project will be
assurances on the p
n°cessary to achieve those desired benefits.
3,..1 Benefits to Gity. The benefits to City (including,
without limitation, the residents of city) under his Agreement
but am not limited to: (a) improvements
(b) the payment of fees for the construction of public facilities
and services; (c) an increase in property tax revenues and sales
tax revanues to be derived by the City; (d) the creation of jobs
within the City; (e) the creawio of enhance ster-planned single family
residential community which
its ability to attract new employers; (f) the creation of a unique
public park with an educational and environmental theme; and 175)
the preservation of approximately e
acres of open space within the City.
1.2 Benefit4 to Deve�ofler. Developer has expended and
will continue to expend substantial amounts of time and money on
the planning and infrastructure construction of the Project. In
addition, Developer will provem ts and facilities
eiena amounts time
money in constructing public
providing for public services in connection with the Project.
Developer would not make such additional expenditures without this
Agreement and such additional expenditures will be made in reliance under this Agreement
consistssofg the massurance that fDevel per will r preserve the right to
deve;op the Project.
4. 7ntereer of Dev_Pto�n_er. Developer represents that
Developer is the fee owner of the Property.
5. AinriinQ Effect of &gzrement. The burdens of this
Agreement bind and the benefits of this Agreement inure to the
successors in interest of the parties thereto.
6. Project as a Private Undertaking. It is specifically
understood and agreed by and between the parties hereto that the
development of the Project is a private development, that neither
party is acting as the agent of the other in any respect hereunder,
and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of
an betty end City formed a dDeveloper Ais e that of ae relationship
government entity
SIR'AI16NOI R%DEV Eto►.ACM 3
regulating the development of private property by the owner of such
property.
7. Term, The term of this Agreement shall commence upon the
Effective Date and shall continue until all permits and approvals
required to complete the development of =he Project as contemplated
by the Development Plan have been issued, provided that in no event
shall such term exceed twenty (20) years following the Effective
Date of this Agreement.
8. Changes in Project. Developer shall not be entitled to
any change, modification, revision or alteration in the Development
Plan relating to the permitted uses of the Property, the density or
intensity of use, the maximum height and size of proposed buildings
or the provision for reservation or dedication of land for public
purposes without review and approval by the City. Subject to the
foregoing provisions of -.:iis Section 8, City acknowledges that
Developer may seek new entitlements to use and amendments to
entitlements to use in connection with the development of the
Project. The approval of any such amendments or new entitlements
to use shall be in the sole discretion of the City in the manner
described in 11.4.
9. Hold Harmless.
2,1 By Developer./`Developer. agrees to and shall defend,
indemnify and hold harmless City, its elected officials, officers,
agents, employees, and representatives from: (a) liability for
damage or claims for damage for personal injury including death and
claims for property damage which may arise from the activities of
Developer or those of Developer's contractors, subcontractors,
agents, employees or other persons acting on Developer's behalf
which relate to the Project; and (b) any claims, costs and
liability arising as a result of any legal action brought against
City which challenges the validity of this Agreement, the Paradise
Hills Specific Plan, the Project Environmental Impact Report, or
the Project General Plan Amendment or any City proceedings relating
to the approval of any of such documents, or any of the terms and
conditions herein. Nothing in this section shall be construed to
mean that Developer shall hold City harmless and defend it from any
claims of personal injury, death or property damage arising from,
or alleqed to arise from, the negligence, or any deliberately
harmful act, willful or gross negligence on the part of City, its
elected representatives, officers, agents and employees.
2..2 By City. 'ity agrees to and shall hold harmless
Developer, its officers, agents, employees, partners and
representatives from 'liability for damage or claims for damage for
personal injury including death and claims for property damage
which may arise from the activities of City or those of City's
contractors, subcontractors, agents, employees or other persons
acting on City's behalf which relate to the Project.^
10. vested Right. By entering into this Agreement and
relying thereon, Developer is obtaining a vested right to proceed
with the Project in accordance with the Development Plan and City
is securing certain public benefits which help to alleviate current
or potential problems in City and enhance the public health, safety
and welfare. With respect to Government Code Section 65965.2, the
development regulations governing subsequent discretionary actions
are the ordinances and regulations of City adopted as of the
Agreement Date. Upon submission by Developer of all appropriate
applications for such subsequent discretionary approvals for the
Project, City shall promptly commence and diligently prosecute all
procedures necessary to authorize such approval As provided in
Government Code Section 65865.2, any subsequ t discretionary
actions by City or any conditions, terms, restrictions and
requirements for such discretionary actions by City shall not
prevent the development of the Project for the uses and to the
maximum density or intensity of development set forth in this
Agreement. City therefore agrees to the following:
!'P147WO MDEVELOP.QOM 4
" I
Now
10_1 N Co^fIicrina EnA QtM2^-ts. Neither the City Council
or City
nor any other agency of City shall enact an ordinance,
policy, rule, regulation or other sequeapplicable ing of the development E or
which relates to the rate, timing art of the Project or which is
or construction of all or any P h the Proj ect as described in this �..
otherwise in conflict wit
Agreement.
1Q.2 T;,•�^~ ^f parties. In addition to and not in
limitation of the foregoing, it is the intent of Developer and City
that no moratorium or other limitation (whether relating to the I
rate, timing or sequencing of the development or construction of
all or any part of the Project and whether or not enacted diy
initiative or otherwise) caft stior hervimaps,entitlements tc use
permits, occupancy
approved, issued or granted within City, or portions of City, shall
apply to the Project to the extent such moratorium or other
limitation is in conflict with this Agreement. The foregoing shall
not be deemed to limit the Developer's right to appeal any
determination of such ordinance,
tion,eIImoratoriumoorZother limitation
measure, policy, rule, regulation, art of
which purports to invalidate agrees to prevail
cooperate with l Developer in all
this Agreement. City g this Agreement in full force
reasonable manners in order to keep
and effect.
10.3 c„r,gPQUet,evieN. All subsequent review of
development of the Project shall be subject to the terms and
condititns of this Agreement and the provisions of Government Code
Section 65865.4 and 65866.
il. General Dev-IcZnenr of the ProiecL.
11.1 Project. While this Agreement is in effect,
Develcper shall have a vested right to develop the Project in
accordance with the terms and conditions of this Agreement, and
City shall have the right to control the development of the Project
accordance with the terms and conditions of this Agreement.
in
Except r otherwise specified in this Agreement, the Development
Plan shall control tie overall design, development and construction
of the Project. The permitted uses of the Property, the density
and intensity of use, -he maximum height and size of proposed
buildings, the provision for reservation and dedication of land for
public purposes and other terms and conditions of development
applicable to the Prcperty shall be those set forth in the
Development Plan. The carties hereto acknowledge that Developer's
vested right to develop 504 sing e-family residential dwelling
with all
units on the Pro ert is sub ect to Develo er s co Hance
provision s of the Develo ment Plan includin the Paradise Hills
S ecLtic Plan an t e Conditions of A roval i osed b Cit in
connection wit t e approva o such Speci Lc Plan.
11.2 Y - - Timig of Development. The parties
acknowledge that although Developer currently anticipates that the
Project will be phased and constructed in increments over an
approximately twenty (20) year time frame, at the present time
Developer cannot predi=t when or the order in which Project phases
will be developed. Such decisions depend upon numerous "actors
a,hich are not within the control ;,f Developer, such as maLKet
orientation and demand, interest rates, competition and other
similar factors. To the extent permitted by the Development Plan
and this Agre°ment, Developer shall have the right to develop the
Project in phases in such order and at such times as Developer
deems appropriate within the exercise of its subjective business
judgment so long as the Project is constructed as an integrated
mixed-use master-planned single-family residential community as
contemplated by the Dave l four Plan.eceive Developer
shall be entitled to apply building permits, occupancy
vesting tentative tract maps. g P
certificates and other entitlements to use at any time, in as
expeditious a manner as possible provided that such application is
made in accordance with the Development Plan.
I RSA11VOIR%DEVELO►.AGM 5
11.3 Effect of Agreement on Land Use Re,Tu_ations. The
rules, regulations and official policies governing permitted uses
of the Property, the density and intensity of use of the Property,
the maximum height and size of proposed buildings and the design,
improvement and construction standards and specifications
applicable to development of the Property are those rules,
regulations and official policies in force as of the Agreement Date
except as provided in Section 12.1. In connection with any
approval which City is permitted or has the right to make under
this Agreement relating to the Project, or otherwise under its
other rules, regulations and official policies, City shall exercise
its discretion to take action in a manner which is as expeditious
as possible and which complies and is consistent with the
Development Plan and the standards, terms and conditions contained
in this Agreement, and in a manner which will not interfere with
the development of the Project for the uses and to the height,
density and intensity specified in this Agreement or with the rate
of development selected by Developer. City shall accept for
processing and timely review and act on all applications for
further land use entitlement approvals with respect to the Project
called for or required under this Agreement in as expeditious a
manner as is possible. Such application shall be processed in the
normal manner for processing such matters.
11.4 Administrative Changes and Amendments. 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. The
parties desire to retain a certain degree of flexibility with
respect to the details of the Project development and with respect
to those items covered in general terms under this Agreement. If
and when the parties find that changes or adjustments are necessary
or appropriate, they shall, unless otherwise required by law,
effectuate such changes or adjustments through administrative
amendments approved by the City Director of Community Development,
which, after execution, shall be attached hereto as an addenda and
become a part hereof, and may be further changed and amended from
time to time as necessary, with approval by City and Developer.
Any such administrative changes or amendments shall not be deemed
to be an amendment to this Agreement under Government Code Section
65868, and unles3 otherwise required by law, no such administrative
amendments shall require prior notice or hearing. Notwithstanding
the foregoing, the following matters shall not be considered
administrative changes or amendments, but shall be considered
substantive amendments which shall be reviewed by the Planning
Commission and approved by the City Council:
(a) Alteration of the permitted uses of the Property;
(b) Increase in the density or intensity of use or the
number of lots;
buildings; (c) Increase in the maximum height and size in permitted
(d) Deletion of a requirement for the reservation or
dedication of land for public purposes except for minor boundary
adjustments approved by the City Director of Community Development;
and
(e) Any amendment or change requiring a subsequent or
supplemental environmental impact report pursuant to California
Public Resources Code Section 21166.
11.5 Mello-Roos Community Facilities District, Other
Assessment District or Financing Mechanisms. Pursuant to Chapter
2.5 (commencing with Section 53312) Part I, Division 2, Title 5 of
the Government Code, commonly known as the "Mello-Roos Community
Facility Act of 19820, Developer may, at its sole election,
petition the City Council of City to establish a community
facilities district including the Property for the purpose of
acquiring, constructing and financing through the sale of bonds the
acquisition and construction of certain public facilities which are
4RU 296%01 MOB V ILO/.QOM 6
necessary to meet increased demands placed on City as a result of
the development of Developer's Property. Alternatively, or in
addition thereto, Developer may request that City initiate and
complete proceedings under the Municipal Improvement Act of 1911,
the Municipal Improvement Act of 1913, the Improvement Bond Act of
1915, the Landscaping and Lighting Act of 1972, or any and all
other available financing mechanisms to provide public conduit
financing for the construction of public improvements on the
Property. If so requested by Developer, City shall cooperate with
Developer and use its best efforts in taking all steps necessary to
cause the =ommunity facilities district or other entity to issue
bonds for such purposes.
11.6 Consistency Between This Agreement and Current Laws.
City represents that there are no rules, regulations, ordinances or
off_zial policies of City enforced as of the date of execution of
thi= Agreement that would interfere with the completion or use of
the Project.
11.7 Assessments and Fees. It is the intent of the
parties that Developer shall pay all development fees currently
applicable to the Project and that the amount of such fees shall be
set at the time such fees are otherwise due or payable.
Accordingly, City shall not, without the prior written consent of
Developer, impose any additional assessment or fee applicable to
the Project or any portion thereof, or impose any additional fees
as a condition to the implementation of the Project or any portion
thereof, except those assessments and fees in effect on the
Agreement Date as set forth on Exhibit "C" (collectively,
"Applicable Fees") . Notwithstanding the foregoing, Applicable Fees
payable to City shall be paid at rates applicable on the date said
fees are otherwise due and payable.
11.8 Subseouent Actions. City shall timely process, in
as expeditious a manner as possible for processing such matters,
any necessary entitlements to use, including parcel maps, vesting
tentative tract maps, tentative tract maps, conditional use
permits, or other discretionary approvals or entitlements to use
contemplated by the Project, and any grading, construction or other
permits filed by Developer in accordance with the substantive
development standards set forth in the Development Plan. The term
of any tentative map filed for the Property, or any portion
thereof, within the term of this Agreement shall automatically be
extended for the term of this Agreement.
11.9 Reimbursement To Developer.
A. Developer, in order to develop the Project and
to mitigate certain impacts resulting therefrom, will have to
comply with the Conditions of Approval for Specific Plan for the
Project.
B. For those public improvements or facilities
("Facilities") designed, constructed or installed by Developer
which benefit not only the Property, but also property in addition
to the Property ("Benefitting Properties") a reimbursement
agreement (the "Reimbursement Agreement") shall be executed by the
City and Developer.
C. The Reimbursement Agreement shall: (a) be in
form and substance identical to Exhibit "D" attached hereto and
incorporated herein by this reference; and (b) provide for
reimbursement to Developer when: (i) an Engineering Benefit Zone
Study ("EBZ Study") prepared pursuant hereto shows that, with
respect to any public improvement or facility designed, constructed
or installed by Developer, there exists Benefitting Properties; or
(ii) Developer is entitled to reimbursement pursuant to City
ordinances, resolutions and policies, e.g. , reimbursement for
certain water, sewer and storm facilities.
D. City shall, from time to time, at the request
of Developer and at Developer's expense, cause an EBZ Study with
respect to one or more of the Facilities to be prepared and, after
a11uaew1X1D1VEWP pow 7
• r
review and acceptance by the City of the EBZ Study, shall enter
into Reimbursement Agreements with Developer with respect to the
Benefitted Properties identified in such Study.
12. Rules Regulations and Official Policies.
12.1 New Rules. This Agreement shall not prevent City
from applying new rules, regulations and policies relating to
Uniform Codes such as the Uniform Building Code, Uniform Electrical
Code. Uniform Mechanical Code or Uniform Fire Code, which:
(a) relate to public safety; (b) are based on recommendations of a
multi-state professional organization; and (c) become applicable
throughout City.
12.2 New Laws. In the event that state or federal laws
or regulations, enacted after this Agreement is executed, prevent
or preclude compliance with one or more of the provisions of this
Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal
laws or regulations; provided, however, that this Agreement shall
remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and to the extent such
laws or regulations do not render such remaining provisions
impractical to enforce.
12.3 ,SubseauPnr Actions and Aoorovals. In accordance
with Government Code Section 65866, this Agreement shall not
prevent City in subsequent actions applicable to the Property from
applying new rules, regulations and policies which do not conflict
with those existing rules, regulations and policies set forth in
the Development Plan, nor shall this Agreement prevent City from
denying or conditionally approving any subsequent development
project application on the basis of such existing or new rules,
regulations or policies; provided that Developer's vested right to
develop the Project pursuant to Section 10 above is not impaired by
any such actions or applications by the City.
13. Amendment or Cancellation of Agreement. This Agreement
may be amended or canceled in whole or in part only by mutual
consent of the parties in the manner provided for in Government
Code Section 65868.
14. Enforcement. Unless amended or canceled as provided in
Section 13, or modified or suspended pursuant to Government Code
Section 65869.5, this Agreement is enforceable by either party
hereto notwithstanding any change in any applicable general or
specific plan, zoning, subdivision or building regulation or other
applicable law or regulation adopted by City (or by the voters of
City unless found by a court of competent and final jurisdiction to
prevail over this Agreement) .
15. Periodic Review of Comoliance With Agreement.
15.1 Periodic Review. City and Developer shall review
this Agreement at least once every twelve (12) months from the date
this Agreement is executed. City shall notify Developer in writing
of the date for review at least thirty (30) days prior thereto.
15.2 Good Faith Compliance. During each periodic review,
each party is required to demonstrate good faith compliance with
the terms of this Agreement. Each party agrees to furnish such
reasonable evidence of good faith compliance as the other party, in
the exercise of its reasonable discretion, may require.
16. Events of Default.
16.1 Default by Develooer. If City determines on the
basis of substantial evidence that Developer has not complied in
good faith with the terms and conditions of this Agreement, City
shall, by written notice to Developer, specify the manner in which
Developer has failed to so comply and state the steps Developer
must take to bring itself into compliance. If, within ninety (90)
VRI A 296%01 R%DEVEIOP.A GM 8
days after the effective date of notice from City specifying the
manner in which Developer has failed to so comply, Developer does
not commence all steps reasonably necessary to bring itself into
compliance as required and thereafter diligently pursue such steps
to completion, then Developer shall be deemed to be in default
under the terms of this Agreement and City may terminate this
Agreement.
16.2 Default by City. If Developer determines on the
basis of substantial evidence that City has not complied in good
faith with the terms and conditions of this Agreement, Developer
shall, by written notice to City, specify the manner in which City
has failed to so comply and state the steps City must take Lo bring
itself into compliance. If, within ninety (90) days after the
effective date of notice from Developer specifying the manner in
which City has failed to so comply, City does not commence all
steps reasonably necessary to bring itself into compliance as
required and thereafter diligently pursue such steps to completion,
then City shall be deemed to be in default under the terms of this
Agreement and Developer may terminate this Agreement or seek
specific performance as set forth in Section 16.3.
16.3 Snecific Performance Rem_z y. Due to the nature and
scope of the Project, it will not be practical or possible to
restore the Property to its natural condition once implementation
of this Agreement has begun. After such implementation, Developer
may be foreclosed from other choices it- may have had to utilize the
Property and provide for other benefits. Developer has invested
significant time and resources and performed extensive planning and
processing of the Project in agre-:�'.ng to the terms of this
Agreement and will be investing even more substantial time and
resources in implementing the Project in relian_e upon the terms of
this Agreement, and it is not possible to determine the sum of
money which would adequately compensate Developer for such efforts.
For the above reasons, City and Developer agree that damages would
not be an adequate remedy if City fails to carry out its
obligations under this Agreement. Therefore, specific performance
of this Agreement is the only remedy which would compensate
Developer if City fails to carry out its obligations under this
Agreement, and City hereby agrees that Developer shall be entitled
to specific performance in the event of a default by City
hereunder. Notwithstanding the foregoing, nothing in this
Agreement is intended to deprive Developer from recovering
appropriate damages in the event that the terms of this Agreement
are breached. City and Developer acknowledge that, if Developer
fails to carry out its obligations under this Agreement, City shall
have the right to refuse to issue any permits or other approvals
which Developer would not otherwise have been entitled to pursuant
to this Agreement. Therefore, City's remedy of terminating this
Agreement shall be sufficient in most circumstances if Developer
fails to carry out its obligations hereunder. Notwithstanding the
foregoing, if City issues a permit or other approval pursuant to
this Agreement in reliance upon a specified condition being
satisfied by Developer in the future, and if Developer then fails
to satisfy such condition, City shall be entitled to specific
performance for the sole purpose of causing Developer to satisfy
such condition. The City's right of specific performance shall be
limited to those circumstances set forth above, and City shall have
no right to seek specific performance to cause Developer to
otherwise proceed with the development of the Project in any
manner.
17. Institution of Legal Action. In addition to any other
rights or remedies, either party may institute legal action to
cure, correct or remedy any default, to enforce any covenants or
agreements herein, to enjoin any threatened or attempted violation
hereof, to recover damages for any default, or to obtain any other
remedies consistent with the purpose of this Agreement. any such
legal action shall be brought in the Superior Court for can
Bernardino County, California.
61MA]M10MOEVELOP AGM 9
18. Waivers and Delays.
18.1 Waiver. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by
the other parry, and failure by a party to exercise its rights upon
a default by the other party hereto, shall not constitute a waiver
of such party's right to demand strict compliance by such other
party in the future.
18.2 Third Parties. Nonperformance shall not be excused
because of a failure of a third person except, as provided in
Section 18.3 below.
18.3 Force Maieure. Neither party shall be deemed to be
in default or failure or delay in performance of any of its
obligations under this Agreement if caused by floods, earthquakes,
other Acts of God, fires, wars, riots or similar hostilities,
strikes, other labor difficulties, government regulations or other
causes beyond either of the parties' control. If any such event
shall occur, the term of this agreement and the time for
performance by Developer of any of its obligations hereunder or
pursuant to the Development Plan shall be extended by the period of
time that such events prevent a construction of the Project.
19. Notices. All notices required or provided for under this
Agreement shall be in writing and delivered in person and deposited
in the United States mail, postage prepaid and addressed as
follows:
TO CITY: City of San Bernardino
300 N. "D" Street - 6th Floor
San Bernar_:=, California 92418
Artn: Director cf Development
TO DEVELOPER: Fontana Corners III
1875 Century Park East
Su-te 1880
Los Angeles, CA 90067
Attn: Mazen Habiby
Either party may change the address stated herein by giving notice,
in writing, to the other party and thereafter notices shall be
addressed and submitted to the new address.
20. Attorney's Fees. If legal action is brought by either
party against the other for breach of this Agreement, or to compel
performance under this Agreement, the prevailing party shall be
entitled to an award of reasonable attorneys' fees and costs.
21. Transfers and Assignments.
21.1 Right to Assign. Developer shall have the right to
sell, assign or transfer this Agreement, and any and all of its
rights, duties and obligations hereunder, to any person or entity
at any time during the term of this Agreement, provided, however,
in no event shall the rights, duties and obligations conferred upon
Developer pursuant to this Agreement be at any time so transferred
or assigned except through a transfer of an interest of Developer
in the Property, or portion thereof, so transferred. In the event
of any such assignment, either the transferee or Developer shall be
liable for the performance of all obligations of Developer. Such
transferee or Developer shall notify City in writing of the
transfer of such obligations within thirty (30) days of the
effective date of the transfer.
21.2 Release upon Transfer. Upon the sale, transfer or
assignment of Developer's rights and interest under this Agreement
as permitted pursuant to Section 21.1, Developer shall be released
from its obligations under this Agreement and all of owner's
obligations pursuant to the Development Plan, or other agreements
assumed by transferee with respect to the Property, or portion
thereof, so transferred provided that: (a) Developer is not then in
default under the Agreement; (b) Developer or transferee has
UMA M01 R10EV ELO►.AGM :.0
provided the City notice of such transfer; and (c) the transferee
executes and delivers to City a written agreement in which: (i) the
name and address of the transferee is set forth; and (ii) the
transferee expressly and unconditionally assumes all of the
obligations of Developer under this Agreement with respect to the
Property, or a portion thereof, so transferred.
Notwithstanding Section 5 and Section 21.1 of this
Agreement, in the event that any person or entity ("Property
Purchaser") , purchases a portion of the Property (the "Purchased
Parcel") and the Property Purchaser and the City execute and record
a development agreement pertaining to the Purchased Parcel, then at
the time when such development agreement is recorded, this
Agreement shall cease to apply to the Purchased Parcel and the
owner of the Purchased Parcel, as such, shall have no rights or
obligations under this Agreement, and Developer hereunder shall be
released from its obligations under this Agreement with respect to
the Purchased Parcel as provided in this Section 21.2 but without
any requir-iment to satisfy the conditions set forth in Section
21.2 (a) , (b) and (c) .
22. Cooperation in the Event of Legal Challenge. In the
event of any legal action instituted by a third party or other
governmental entity or official challenging the validity of any
provision of this Agreement, the parties hereby agree to cooperate
in defending such action. Each party shall pay its own expenses in
connection with such defense. In the event of any litigation
challenging the effectiveness of this Agreement, or any portion
hereof, this Agreement shall remain in full force and effect while
such litigation, including any appellate review, is pending.
23. Eminent Domain. No provision of his Agreement shall be
construed to limit or restrict the exercise by City of its power of
eminent domain.
24. Authority to Execute. The person or persons executing
tail Agreement on behalf of Developer warrant and represent that
they have the authority to execute this Agreement on behalf of
their ==rporation, partnership or business entity and warrant and
represent that they have the authority to bind Developer to the
performance of its obligations hereunder.
25. Recordation. This Agreement and any amendment or
cancellation hereto shall be recorded in the Office of Official
Records of the County of San Bernardino, by the City Clerk within
the period required by Section 65868.5 of the Government Code.
26. Protection of Mortgage Holders. Developer and City agree
that this Agreement shall not prevent or limit Developer, ir any
manner, at Developer's sole discretion, from encumbering the
Property or any portion thereof or any improvement thereon by any
mortgage, deed of trust or other security device securing financing
with respect to the Property. City acknowledges that the lenders
providing such financing (•Mortgagees") may require certain
Agreement interpretations and modifications and agrees upon
request, from time to time, to meet with Developer and
representatives of such Mortgagees to negotiate in good faith any
sucti request for interpretation or modification. City will not
unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or
modification is consistent with the intent and purposes of this
Agreement. Any Mortgagee of all or any portion of the Property
shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of
this Agreement shall defeat, render invalid, diminish or
impair the lien of any mortgage on all or any portion of the
Property made in good faith and for value, unless otherwise
required by law.
(b) Any Mortgac�e of a mortgage or deed of trust
encumbering all or any portion of the Property which has
submitted a request in writing to the City in the manner
1/1t%A2$M01 MOEVEIO►.AOM 11
specified herein for giving notices shall be entitled to
receive written notification from City of any default by
Developer in the performance of Developer's obligations under
this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer
under the terms of this Agreement, City shall provide a copy
of that notice to the Mortgagee within ten (10) days of
sending the notice of default to Developer. The Mortgagee
shall have the right, but not the obligation, to cure the
default during =he remaining cure period allowed such party
under this Agreement.
(d; Any Mortgagee who comes into possession of all or
any portion of the Property, pursuant to foreclosure of the
mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject
to the terms of this Agreement. Notwithstanding any other
provision of this Agreement to the contrary, no Mortgagee
shall have an cbligation or duty under this Agreement to
perform any of Developer's obligations or other affirmative
covenants of Developer hereunder, or to guarantee such
performance; provided, however, that to the extent that any
ov=nant to be performed by Developer is a condition precedent
=o :he performance of a covenant by City, the performance
thereof shall continue to be a =ondition precedent to City's
performance hereunder, and further provided that any sale,
transfer or assignment by any Mortgagee in possession shall be
subject to the provisions of Section 21 of this Agreement.
27. Severak�ility of Terms. If any term, provision, covenant
or condition of this Agreement shall be determined invalid, void or
unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not
rendered impractical to enforce.
28. SubseQuent Amendment to Authorizing Statute. This
Agreement has been entered into in reliance upon the provisions of
the Development Agreement Law in effect as of the Agreement Date.
Accordingly, to the extent the subsequent amendment to the
Government Code would affect the provisions of this Agreement, such
amendment shall not be applicable to the Agreement unless necessary
for this Agreement to be enforceable or unless this Agreement is
modified pursuant to the provisions set forth in the Agreement and
Government Code Section 65868 as in effect on the Agreement Date.
29. Section Headings. All section headings and subheadings
are inserted for convenience only and shall not affect any
construction or interpretation of this Agreement.
30. Incorporation of Recitals and Exhibits. Recitals A
through J and attached Exhibits "A" through "D" are hereby
incorporated herein by this reference as though fully set forth.
31. Rules of Construction and Miscellaneous Terms.
31.1 Gender. The singular includes the plural; the
masculine gender includes the feminine; "shall" is mandatory, "may"
is permissive.
31.2 Time of Essence. Time is of the essence regarding
each provision of this Agreement in which time is an element.
31.3 Cooperation. Each party covenants to take such
reasonable actions and execute all documents that may be necessary
to achieve the purposes and objectives of this Agreement.
32. Effect on Title. Developer and City agree that this
Agreement shall not create an encumbrance on any portion of the
Property which is sold to an ultimate user of all or any portion of
the Property.
IlMAM01 10 DEVEWP QOM 12
The parties have executed this Development Agreement on the
date and year first written above.
FONTANA CORNERS III, a
California limited partnership
By:
Its: General Partner
"Developer•
CITY OF SAN BERNARDINO,
a municipal corporation
By:
Its: City Administrator
"City•
Signed and Certified that a copy
of :his document has been delivered
to the City Administrator of the City
By:
City Clerk
Approved as to its form:
By:
City Attorney
IMAMOWDEvn,or. GM 13
STATE OF CALIFORNIA )
. se.
COUNTY OF )
On this day of 199_, before me,
a Notary Public in and for said County and State,
personally appeared , personally known to me
or proved to me on the basis of satisfactory evidence) to be the
'eneral Partner of FONTANA CORNERS III, a California limited
=artnership, the partnership that executed the within instrument
and acknowledged to me that said partnership executed it.
Notary Public in and for said
County and State
STATE OF CALIFORNIA )
as.
COUNTY OF SAN BERNARDINO )
On this day of 199_, before me,
, a Notary Public in and for said County
and State, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed this instrument as City Administrator
of the City of San Bernardino and acknowledged to me that the City
of San Bernardino executed it.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
t/RU2$6101 RIVGV ELO►.AOM 14
LEGAL DESCRIPTION OF PROpp ry
All that certain real property located in the Ci:;, �f San
Bernardino, County of San Bernardino, State of California,
described as follows:
PARCEL NO. 1:
THAT PORTION OF SECTIONS 4, 5, 8 AND 9, TOWNSHIP 1 NORTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS THE LINES OF THE 3OVERNMENT
SURVEY MAY BE EXTENDED ACROSS THE MUSCUPIABE RANCHO, DESCRIBED AS
FOLLOWS:
BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE,
ACCORDING TO THE PERRIN SURVEY, AT NORTH 89 DEG. 03' WEST, 516.9
FEET FROM CORNER NO. 28; THENCE SOUTH 22 DEG. 36' WEST, 626.13 FEET
TO CORNER NO. 2; THENCE SOUTH 41 DEG. 08' WEST, 241.56 FEET TO
CORNER NO. 3; THENCE SOUTH 10 DEG. 58' EAST, 127.05 FEET TO CORNER
NO. 4; THENCE SOUTH 41 DEG. 09' WEST, 283.26 FEET TO CORNER NO. 5;
THENCE SOUTH 16 DEG. 19' WEST, 735.98 FEET TO CORNER NO. 6; THENCE
WEST 374.00 FEET TO CORNER NO. 7; THENCE NORTH 1823.2 FEET TO
CORNER NO. 8 ON LINE 27-28 MUSCUPIABE RANCHO; THENCE SOU—.4 89 DEG.
03' EAST, 1142.6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER
NO. 1, THE PLACE OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LAND CONVEYED TO C.F. MARTIN
BY DEED DATED DECEMBER 8, 1921 AND RECORDED FEBRUARY 22, 1922, IN
BOOK 740, PAGE 199, OF DEEDS; THENCE NORTH 89 DEG. 53' EAST ALONG
THE SOUTH LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST
CORNER OF SAID MARTIN LAND; THENCE NORTH 16 DEG. 12' EAST ALONG THE
EAST LINE OF SAID MARTIN LAND, 291.68 FEET; THENCE SOUTH 67 DEG.
12' WEST, 345.0 FEET; THENCE SOUTH 52 DEG. 03' WEST, 174.27 FEET TO
A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOU:'H 0 DEG.
07' EAST ALONG SAID WEST LINE, 40.0 FEET TO THE POINT OF BEGINNING.
PARCEL NO, 2:
GOVERNMENT LOT 16 AND THAT PORTION OF GOVERNMENT LOTS 14 AND 15,
SECTION 5, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT TOWNSHIP PLAT THEREOF,
APPROVED BY THE SURVEYOR GENERAL ON JUNE 24, 1898, DESCRIBED AS
FOLLOWS:
COMMENCING AT MONUMENT NO. 27 OF THE MUSCUPIABE RANCHO, SAID
MONUMENT BEING THE SOUTHWESTERLY CORNER OF SAID GOVERNMENT LOT 14•
THENCE NORTH 58 DEG. 14' 40" EAST, 1035.33 FEET TO THE TRUE POINT
OF BEGINNING; THENCE NORTH 82 DEG. 11' 40" EAST, 720.00 FEET;
THENCE NORTH 0 DEG. 08' EAST, 456 FEET, MORE OR LESS, TO THE NORTH
LINE OF SAID GOVERNMENT LOT 15; THENCE EASTERLY ALONG THE NORTH
LINE OF SAID GOVERNMENT LOTS 15 AND 16, 1938 FEET, MORE OR LESS, TO
THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 16; THENCE SOUTHERLY
ALONG THE EAST LINE OF SAID GOVERNMENT LOT 16, 1093 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID GOVERNMENT LOT 16, SAID
CORNER BEING ON THE SAID MUSCUPIABE RANCHO LINE; THENCE NORTH 89
DEG. WEST ALONG THE SOUTH LINE OF SAID GOVERNMENT LOTS 16, 15 AND
14, AND ALONG THE MUSCUPIABE RANCHO LINE, 2684 FEET, MORE OR LESS,
TO A POINT, SAID POINT BEING SOUTH 89 DEG. EAST, 883.9 FEET FROM
SAID MONUMENT NO 27 OF RANCHO MUSCUPIABE; THENCE NORTH 0 DEG. 21'
WEST, 560.34 FEET TO THE POINT OF BEGINNING.
DEL NO. 3 :
THE NORTH 1/2 OF THE SOUTHWEST 1/4, AND THE SOUTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
(EXHIBIT "A")
(Page 1 of 3)
1MA2U%01R%VEvEL0P AGM
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898.
PARCEL NO. 4:
GOVERNMENT LOT 5, SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN '
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898.
PARCEL N0, 5:
THAT PORTION OF SECTIONS 4, S. 8 AND 9, TOWNSHIP 1 NORTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS THE LINES OF THE GOVERNMENT
SURVEY MAY BE EXTENDED ACROSS THE MUSCUPIABE RANCHO, DESCRIBED AS
FOLLOWS:
BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE,
ACCORDING TO THE PERRIN SURVEY, AT NORTH 89 DEG. 03' WEST, 516.9
FEET FROM CORNER NO. 28; THENCE SOUTH 22 DEG. 36' WEST, 626.13 FEET
TO CORNER NO. 2; THENCE SOUTH 41 DEG. 08' WEST, 241.56 FEET TO
CORNER NO. 3; THENCE SOUTH 1C DEG. 58' EAST, 127.05 FEET TO CORNER
NO. 4; THENCE SOUTH 41 DEG. 09' WEST, 283.26 FEET TO CORNER NO. 5;
THENCE SOUTH 16 DEG. 19' WEST, 735.98 FEET TO CORNER NO. 6; THENCE
WEST 374.00 FEET TO CORNER NO. 7; THENCE NORTH 1823.2 FEET TO
CORNER NO. 8 ON LINE 27-28 MUSCUPIABE RANCHO; THENCE SOUTH 89 DEG.
03' EAST, 1142.6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER
NO. 1, THE PLACE OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER. OF LAND CONVEYED TO C.F. MARTIN
BY DEED DATED DECEMBER 8, 1921 A-D RECORDED FEBRUARY 22, 1922, IN
BOOK 740, PAGE 199, OF DEEDS; THENCE NORTH 89 DEG. 53' EAST ALONG
THE SOUTH LINE OF SAID MARTIN LAND, 374.0 FEET TO THE SOUTHEAST
CORNER OF SAID MARTIN LAND; THENCE NORTH 16 DEG. 12' EAST ALONG THE
EAST LINE OF SAID MARTIN LAND, 291.68 FEET; THENCE SOUTH 67 DEG.
12' WEST, 345.0 FEET; THENCE SOUTH 52 DEG. 03' WEST, 174.27 FEET TO
A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 0 DEG.
07' EAST ALONG SA:7 TEST LINE, 10.0 FEET TO THE POINT OF BEGINNING.
PARCEL NO. 6:
GOVERNMENT LOT 16 AND THAT PORTION OF GOVERNMENT LOTS 14 AND 15,
SECTION 5, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT TOWNSHIP PLAT THEREOF,
APPROVED BY THE SURVEYOR GENERAL ON JUNE 24, 1898, DESCRIBED AS
FOLLOWS:
COMMENCING AT MONUMENT NO. 27 OF THE MUSCUPIABS RANCHO, SAID
MONUMENT BEING THE SOUTHWESTERLY CORNER OF SAID GOVERNMENT LOT 14;
THENCE NORTH 58 DEG. 14' 40" EAST, 1035.33 FEET TO TSE TRUE POINT
OF BEGINNING; THENCE NORTH 82 DEG. 11' 40" EAST, 120.00 FEET;
THENCE NORTH 0 DEG. 08' EAST, 456 FEET, MORE OR LESS, TO THE NORTH
LINE OF SAID GOVERNMENT LOT 15; THENCE EASTERLY ALONG THE NORTH
LINE OF SAID GOVERNMENT :JTS 15 AND 16, 1938 FEET, MORE OR LESS, TO
THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 16; THENCE SOUTHERLY
ALONG THE EAST LINE OF SAID GOVERNMENT LOT 16, 1093 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID GOVERNMENT LOT 16, SAID
CORNER BEING ON THE SAID *_TSCUPIABE RANCHO LINE; THENCE NORTH 89
DEG. WEST ALONG THE SOUTH l.:NE OF SAID GOVERNMENT LOTS 16, 15 AND
14, AND ALONG THE MUSCUPIABE RANCHO LINE, 2684 FEET, MORE OR LESS,
TO A POINT, SAID POINT BEING SOUTH 89 DEG. EAST, 883.9 FEET FROM
SAID MONUMENT NO. 27 OF RANCHO MUSCUPIABE; THENCE NORTH 0 DEG. 21'
WEST, 560.34 FEET TO THE POINT OF BEGINNING.
(EXHIBIT "A") (Page 2 of 3)
1/11U7t610111IDEVELO►AGM
PARCEL NO. 7:
THE NORTH 1/2 OF THE SOUTHWEST 1/4, AND -HE SOUTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARD:NO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898.
PARCEL NO. 8:
GOVERNMENT LOT 5, SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BEF:'aRDI210,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1899.
a
(EXHIBIT "A") (Page 3 of 3)
V RU2M'01 RIDEV ELL V AGM
i
STANDARDS AND SPECIFICATIONS FOR
DEVELOPMENT OF THE PROPERTY: PARADISE HILLS SPECIFIC PLAN
THE PROPERTY: PARADISE HILLS SPECIFIC PLAN
THAT CERTAIN SPECIFIC PLAN, COMMONLY KNOWN AS THE
"PARADISE HILLS SPECIFIC PLAN', ADOPTED BY THE CITY ON
199_ PURSUANT TO CALIFORNIA
COVENANT TO THE SECTION 65450, ET. SEQ.
(EXHIBIT "B') (Page 1 of 1)
VR%A 216W 1 R%0EV ELO►.AOM
SCHEDULE OF PPLICAAT-R MA
1. All building permits and plan check fees, including, but not
limited to, electrical, mechanical, grading, plumbing and
miscellaneous fees.
2. Land use application fees, including but not limited to,
-entative Tracts, Parcel Maps, Precise Plan of Design and,
Snvironmental Review fees.
3. Public Works Department review fees, including but not limited
to, street improvement plans, improvement inspection fees,
encroachment permits, and map review fees.
4. Sign permit review fees.
(EXHIBIT "C") (Page 1 of )
VV%A M01 R%OEVELO►.AOM
' REZIOURSMIENT AGRESNIENT FOR CONSTRUCTION
OF PUBLIC 120ROV'EKENTS
THIS AGREEMENT ("Agreement") is made this day of
, 1991 by and between the City of San Bernardino, a
ttr.:icipal corporation (the "City") , and Fontana Corners, III, a
California limited partnership (hereinafte- referred to as
"Developer") .
RECITALS
A. Developer owns approximately 404 acres of real property
located within the City (the •Developer's Property") , more
particularly described on Exhibit "A" attached hereto and
incorporated herein by reference.
B. City has adopted the San Bernardino Development Code (the
"Code") establishing various development impact fees to offset the
cost of development of City infrastructure.
C. As a condition to the approval of a development agreement
between Developer and the City (the "DA") , City has required
Developer to design, construct and install certain public
facilities to serve Developer's Property and other properties (the
"Improvements") . The Improvements are identified in the Specific
Plan adopted as part of the Project (as such term is defined in the
DA) .
D. The DA provides that engineering benefit zone studies
(collectively the "EBZ Study") will be done by City at Developer's
cost to determine which of the Improvements benefit property in
addition to Developer's Property (the "Benefitting Properties") .
City agrees to reimburse Developer for the pro rata share of the
costs of those Improvements that also benefit other properties
(collectively the "Facilities") . The amount of the reimbursement
will be determined by the EBZ Study and will be made from funds
collected by City from the owners or developers of the Benefitting
Properties.
E. Developer is willing to advance the costs of designing,
constructing, installing and inspecting the Reimbursable Facilities
subject to reimbursement from the Benefitting Properties.
(EXHIBIT "D") (Page 1 of 9)
V RM 116101 R%DEV ELO►.AGM
TERMS
A. Design and Construction of Improvements.
Pursuant to the provisions of the DA, including the
timing set forth therein, Developer shall be responsible for
designing, constructing, installing and providing for the
inspection of the Improvements. The plans and specifications for
the work shall be approved by City prior to construction, and the
design, construction and installation of the Improvements shall be
to the satisfaction of City in its sole and reasonably exercised
discretion.
B. Source and Method of Reimbursement: Maximum
Reimbursement.
1. City shall reimburse Developer for the costs,
including an amount attributable to interest computed at the then
existing Bank of America's Reference Rate upon the outstanding
costs incurred, associated with the design, construction,
installation and inspection of the Facilities, in an amount
determined by the EBZ Study: (a) from then-available development
impact fees collected pursuant to the Code from subsequent
developers of Benefitting Properties; (b) from the proceeds of any
community facilities district or assessment district formed, in
part, to pay the same; or (c) from other fees that City may impose
upon any developers of the Benefitting Properties the
"Reimbursement Funda•) . City shall exercise its police power to
the maximum lawful extent to collect fees for the pro rata share of
the costs for the Reimbursable Improvements as determined by the
EBZ Study, including enactment of new ordinances if necessary.
Reimbursement shall be from the Reimbursement Funds and from no
other source.
2. The total amount of the reimbursement obligation
over the life of this Agreement shall be as determined in the EBZ
Study.
3. City shall disburse reimbursements due to Developer
under this Agreement semi-annually from the Reimbursement Funds
collected from developers of Benefitting Properties as provided in
(EXHIBIT "D") (Page 2 of 9)
UMA296%01 RAOEVEL.O/.QOM
this Agreement. The first reimbursement shall occur no later than
6 months following City's formal acceptance of the Improvements.
C. Term of Reimbursement Obligation.
City's obligation, under this Agreement, to reimburse
Developer for the Facilities shall continue for a period of thirty
(30) years from the date of the DA, unless the obligation is sooner
satisfied by payment in full of all reimbursable amounts due and
owing to Developer under this Agreement. After such thirty-year
period or payment in full, whichever occurs first, the
reimbursement process shall cease.
D. Bids and Contracts.
Developer shall be solely responsible for securing
appropriate bids and awarding the contract for construction and
installation of the Improvements in complian=e with all applicable
federal and state laws. Developer shall defend, indemnify and hold
City, its elected officials, officers, agen=s and employees free
and harmless from any and all claims, actions or liability
whatsoever, including attorney's fees and court costs, arising out
of or in connection with Developer's construction of the
Improvements.
E. Inspection.
City shall have the right at all times to inspect the
construction of the Improvements to measure compliance with City
plans and specifications.
F. Indemnification: Insurance.
1. Developer shall defend, inder.'t ify and hold City, its
elected officials, officers, employees and agents free and harmless
from any and all liability from loss, damage, or injury to or death
of persons or property in any manner arising out of or incident to
Developer's performance of this Agreement, including without
limitation all consequential damages, attorney's fees and court
costs, resulting from the negligence of Developer or Developer's
agents. This indemnity shall extend to any claims arising because
Developer has failed to properly secure any necessary easements,
land rights, contracts, or approvals, but shall not extend to any
claims arising out of the negligence of Ci_y.
(EXHIBIT "D") (Page 3 of 9)
1MA216101*%DEVELOP AGM
2. Developer shall require all persons doing work on
the Improvements, including their contractors and subcontractors,
to obtain and maintain insurance of the types and in the amounts
described below in a form and with carriers satisfactory to City.
a. Commercial General Liah lity Insurance.
Occurrence version commercial general liability insurance or
equivalent form with a limit of not less than $1,000,000.00 each
occurrence shall be maintained. If such insurance contains a
general aggregate limit, it shall apply separately to this
Agreement or be no less than two times the occurrence limit. Such
insurance shall:
i. Name City, its elected officials,
officers, employees and agents as insureds with respect to
performance of this Agreement. The coverage shall contain no
special limitations on the scope of its protection afforded to the
above-listed insureds.
ii. Be primary with respect to any insurance
or self insurance programs covering City, its elected officials,
officers, employees and agents.
iii. Contain standard separation of insureds
provisions.
b. Business Autnmobilo —Liability Insurance
Business automobile liability insurance or equivalent form with a
limit of not less than $500,000.00 each accident shall be
maintained. Such insurance shall include coverage for owned, hired
and non-owned automobiles.
C. Workers' Cpm ensatinn Insuranco Work°rs'
compensation insurance with statutory limits and employers'
liability insurance with limits of not less than $1,000,000.00 each
accident shall be maintained.
d. Other Insurance Recui ements. Developer shall:
i. Prior to taking any actions under this
Agreement, furnish City with properly executed certificates of
insurance which shall clearly evidence all insurance required in
this Section and provide that such insurance shall not be canceled,
(EXHIBIT "0") (Page 4 of 9)
91MAIM101RtOEVELOP AGM
allowed to expire or be materially reduced in coverage except on
forty- five (45) days, prior written notice to City.
ii, Provide to City certified copies of
endorsements, and policies if requested by City, and properly
executed certificates of insurance evidencing the insurance
required herein.
iii. Replace or require the replacement of
certificates, policies and endorsements for any insurance required
herein expiring prior to completion and acceptance of the
Improvements.
iv. Require to be maintained all insurance
required herein from the time of execution of this Agreement until
the acceptance of the Improvements.
V. Require the placement of all insurance
required herein with insurers licensed to do business in
California.
G. Commencement of construction and Ins2arttan.
Developer and its contractors and subcontractors shall
not commence construction of any Improvements until De-teloper has
received written authorization from City to proceed. All work
performed on the Improvements shall be done in substantial
compliance with City-approved plans, specifications and contract
documents and in a good and workmanlike manner. All work performed
by Developer, its contractors and subcontractors to construct the
Improvements shall be subject to inspection by City, and Developer
shall require its employees, contractors and agents to comply with
all instructions given by City during construction of the
Improvements. All fees and costs to construct the Improvements
shall be borne solely by Developer, subject to reimbursement as
provided herein. Inspection by City or its employees or agents
shall not relieve Developer of its liability, if any, for design
defects or improper or inadequate workmanship.
H. Compliance with Aopl cahle Lawn.
Developer shall require that all work performed on the
Improvements is performed in a manner which complies with all
applicable federal, state, county and local government laws,
(EXHIBIT ^D") (Page 5 of 9)
uR%A2fea1 noEV EWP.AGM
regulations and rules, including all rules and regulations of City,
as these rules and regulations may be modified or changed from time
to time.
I. Preva'_ling Wages.
Developer is aware of the requirements of California
Labor Code Sections 1770 = =g. , which would require the payment
of prevailing wage rates and the performance of other requirements
if it were determined that Developer's contracts with its
contractor(s) to construct the Improvements were a public works
contract as defined in Sections 1720 and 1720.2 of the California
Labor Code. The parties hereto agree, however, that: (i) to the
maximum extent permitted by law, Developer's contracts with its
subcontractors shall not be deemed "public works contracts" as
defined in the California Labor Code; and (ii) none of the parties
hereto shall take a position inconsistent with the foregoing
treatment of Developer's contracts. Developer agrees to hold City
and its elected officials, officers, employees and agents harmless
from any claim or liability including, without limitation,
attorneys' fees and court costs, arising from any failure or
alleged failure to comply with these provisions of the California
Labor Code.
J. Contractor Licen.e_.
All work performed on the Improvements shall be done only
by contractors licensed in the State of California and qualified to
perform the type of work required.
K. Acceptance of Work.
Upon completion of the Improvements to the satisfaction
of City, the Improvements shall be presented to the San Bernardino
City Council for dedication and acceptance, and for authorization
to file a Notice of Completion. The City Council may accept the
Improvements if it determines that the Improvements were
constructed in accordance with the approved plans, specifications
and contract documents, that they operate satisfactorily, and that
all other requirements of this Agreement have been satisfied. Upon
acceptance of the improvements, Developer shall assign to City all
of Developer's rights and remedies, including warranties, as set
(EXHIBIT "D") (Page 6 of 9)
VOWMI01"DEMORAOM
forth in the approved contract documents, and thereafter City shall
have the same recourse under said contract documents that City
would have had if City itself had engaged Developer's contractor to
construct the Improvements.
L. Liability for work Prior to Formal Acceptance.
Until the City Council has formally accepted the
Improvements, Developer shall be solely responsible for all damage
to the work caused by or arising out of Developer's or its
contractor's or subcontractor's negligence and for all damages or
injuries to any person or property at the work site caused by or
arising out of Developer's or its contractor's or subcontractor's
negligence, except damage or injury due to the negligence of City,
its agents or employees.
M. Guarantee.
Developer shall require its contractor(s) to provide one
or more bonds, in form and content acceptable to City, to guarantee
all work and materials for the Improvements to be free from all
defects due to faulty materials or workmanship for a period of one
(1) year after the date of formal acceptance of the work by City.
N. Record Drawings.
Prior to acceptance of the Improvements by the City
Council, Developer shall provide City with three (3) copies of
record drawings with certification by a licensed engineer in the
State of California as to accuracy and completeness. Developer's
contractor(s) shall be solely responsible and liable for insuring
the completeness and accuracy of the record drawings.
0. Ownership of the Improvements.
From and after acceptance of the Improvements by formal
action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
P. Approval of Improvement Costs.
Upon completion and final acceptance of the Improvements
by formal action of the City Council, Developer shall, within
thirty (30) days, provide City with an itemized bill showing all
reasonable costs, including an amount attributable to interest at
the Bank of America's Reference Rate, incurred by Developer to
(EXHIBIT "D") (Page 7 of 9)
PRIAMOIRIDE VELO►.AGM
i
I
design, construct and install the Improvements. Such reasonable
costs shall be limited to costs of acquiring necessary land and
easements not currently owned by Developer, permit fees, and costs
directly and necessarily related to the design, construction and
installation of the Improvements. Developer agrees to provide City
with bills evidencing costs incurred. Developer also agrees to
provide City with any additional information as to any items shown
on the cost bill as requested by City to substantiate the costs.
Following completion of its analysis, City shall advise Developer,
in writing, of any fees or costs shown on the cost bill which City
will disallow and the reasons why these items are being disallowed
by City. Only those costs approved by City, in its reasonably
exercised discretion, will be allowed for reimbursement in
accordance with this Agreement.
Q. Notice.
Any notices required or desired to be sent pursuant to
this Agreement shall be addressed as follows:
Developer
City of San Bernardino Fontana Corners III
300 North "D" Street, 1875 Century Park East,
6th Floor Suite 1880
San Bernardino, CA 92418 Los Angeles, CA 90067
Attn: Director of Development Attn: Mazen Habiby
R. Amendment.
This Reimbursement Agreement may be amended by the
parties hereto. Such amendment or amendments shall not require an
amendment to the DA.
S. Attorney's Fees.
In the event any action is commenced to enforce or
interpret any term or condition of this Agreement, in addition to
costs and any other relief, the prevailing party shall be entitled
to reasonable attorney's fees.
T. Entire Agreement.
This Agreement contains the entire agreement of the
parties hereto with respect to the matters contained herein.
(EXHIBIT "D") (Page 8 of 3)
811%A286%01 RIDE V ELOt.AGM
V. Assignment.
This Agreement shall not be assigned without the written
consent of the parties hereto, and any assignment without such
written consent shall be void and ineffective.
V. Time of Essence.
Time is of the essence of this Agreement.
City of San Bernardino, Fontana Corners III,
a Municipal corporation a California limited partnership
By: By:
Its: City Administrator Its: General Partner
ATTEST: "Developer"
City Clerk
"City"
(EXHIBIT "D") (Page 9 of 9)
IMA2 W01 R%DEV ELO►.AOM
t
C I T Y OF S A N B E R N A R D I N Q
INTEROFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: Henry Empeno Jr. , Deputy City Attorney
DATE: February 1, 1993
RE: Council Meeting February 1, 1993, Agenda Item #29
Paradise Hills Specific Plan 90-03, General Plan
Amendment No. 91-07, Development Agreement No. 91-03
Copy To: James F. Penman, City Attorney
The form motion on the agenda for the above-referenced item should
be replaced by the following:
"Motion: That the hearing be closed and conceptual
approval only be given to the contents of the draft
resolution that certifies the EIR; adopts the Findings
and Statements of Overriding Consideration; adopts the
Mitigation Monitoring/Reporting Program; and approves the
Specific Plan, the General Plan Amendment, and the
Development Agreement; and that the item be continued to
February 15, 1993 for final action, pending completion of
revisions. "
;0� S�$0�_ o I
HENRY EM 'E , JR. ,
Deputy City Attorney
HE:js[Item#29.Mem]
V
'(' 'Y OF SAN BERNAiMINO - REQUEST FC A COUNCIL ACTION
�,� Paradise Hills Specific Plan
;4rom: Al Boughey, Director Subject:. (Specific Plan 90-03 , General Plan
Amendment 91-07 and Development
Dept: Planning & Building Services Agreement 91-03)
Mayor and Cc=on Council Meeting
Data, December iS , 1992 February 1 , 1993
Synopsis of Previous Council action:
None.
Recommended motion: /
That the hearing be closed and the resolution be adopted, in concept,
that certifies the EIR, adopts the Findings and Statement of Overriding
Considerations, adopts Mitigation Monitoring/Reporting Program, approves
the Specific Plan and General Plan Amendment and also the resolution
be adopted, in concept, that approves the Development Agreement and
the item be continued to February 15, 1993 for final action, pending
completion of revisions.
Al Boug Signature
Contact person: Al Boughey Phone: 384-5357
Supporting data attached: Staff Report, Resolution Ward: 5
FUNDING REQUIREMENTS: Amount: N/A
Source:.(Acct. No.)
(Acct. Description)
Finance:
Council Notes:
75-0262 Aqenda Item NI
Request for Council Action - Staff Report
SUBJECT AND REQUEST: Approval of Specific Plan No. 90-03 , General
Plan Amendment No. 91-07, and Development Agreement No.
91-03 .
Mayor and Common Council Meeting of February 1, 1993
PROJECT DESCRIPTION: A brief description of each project has been
provided below. A more complete description and analysis of each
application can be found in the Planning Commission staff reports,
Exhibit "A" .
Specific Plan No. 90-03
Specific Plan No. 90-03 (Paradise Hills Specific Plan) will
establish the framework for the development of a maximum of 504
single-family homes on 404 acres, a 5 acre public park and
approximately 189 acres of open space. The Specific Plan is a
general policy document that will further refine and implement the
General Plan Policies applicable to the project area. The Specific
Plan does this by establishing goals, objectives, policies, and
standards which form the framework for the orderly development of
the project site. The Plan includes provisions, standards and
policies for access and circulation, land use and unit density
transfer, public safety and public services, parks and open space,
landscaping, and community design.
General Plan Amendment No. 91-07
General Plan Amendment No. 91-07 affects approximately 110 acres of
the project site located outside of the General Plan Hillside
Management Overlay District (HMOD) . The amendment would change the
present RL, Residential Low General Plan land use designation of
the 110 acres to the RS, Residential Suburban General Plan
designation. The RS General Plan designation would permit a
smaller minimum lot size (7,200 square feet) and a greater density
(4 . 5 units per acre) than the RL General Plan designation (10, 800
square feet minimum lot size and 3 . 1 units per acre density) .
The purpose of the General Plan Amendment is to create a receiving
area within the limits of the project site to accept the transfer
of residential units from the HR, Hillside Residential areas of the
Specific Plan. The benefit of creating such a receiving area is
that potentially fewer residential units will be built in the
steeper, more environmentally sensitive hillside areas of the
project site.
Development Agreement No. 91-03
Development Agreement No. 91-03 would help implement the Paradise
Hills Specific Plan.
V
Paradise Hills Specific Plan
MCC 2-1-93
Page 2
KEY ISSIIES: The following key issues have been identified by
topic:
SPECIFIC PLAN ISSIIES
o The Specific Plan does not address the maintenance of the
fuel modification and open space areas. The issues
regarding the maintenance of the open space and fuel
modification areas reduce down to a single issue of
liability leaving only two options; (1) establishment of
a Homeowner's Association, or (2) establishment of an
assessment district. Staff recommends Option No. 2, the
establishment of an assessment district. The applicant
concurs. The Conditions of Approval recommended by the
Planning Commission have been revised to include a
condition requiring the applicant to revise the Specific
Plan to address the maintenance of the fuel modification
and open space areas through the establishment of an
assessment district.
o The City Fire Department has raised concern over the
Circulation Plan contained in the Specific Plan. As a
result, Alternative 4, described on page 3 of the Final
Environmental Impact Report (Exhibit "F") , was proposed.
The Fire Department, staff, and the Planning Commission
have all recommended Alternative 4 as the preferred
project circulation plan. A Condition of Approval has
been added to the list of Conditions recommended by the
Planning Commission at the November 17, 1992 Planning
Commission Meeting to revise the Specific Plan
Circulation Plan to be consistent with that proposed by
Alternative 4. The Applicant concurs.
DEVELOPMENT AGREEMENT ISSIIES
o The Development Agreement contains language which appears
to vest the project to 504 units. Site geologic/seismic
constraints or other environmental factors could
ultimately result in unbuildable areas. A vested right
to a specific number of units coupled with large
unbuildable areas could place the City in a situation
where it would be forced to honor the agreement and
violate the General Plan density policies, or honor the
General Plan density policies and violate the agreement.
w
Paradise Hills Specific Plan
MCC 2-1-93
Page 3
o Concern has been expressed over the benefits afforded the
Developer under the Development Agreement in comparison
to the benefits the agreement would afford the City.
Some examples of the provisions provided in the agreement
to benefit the Developer include:
Section 10.1, page 5 - Provisions that restrict the
City from enacting any ordinances or policies in
conflict with the Development Agreement or Specific
Plan. This includes any new General Plan Policies.
Section 10.2 , page 5 - Provisions that restrict the
City from enacting any moratoriums which would
affect the project.
Section 11.5, page 6 - Provisions that give the
developer access to Mello-Roos Community Facility
District (CFD) bonding mechanisms and other bonding
mechanisms to fund public improvements. Under the
Development Agreement the City would have no choice
in assisting the developer in obtaining bonding
under the developer's choice of bonding mechanisms.
Section 11.7, page 7 - Provisions that exempt
development under the Specific Plan and Development
Agreement from any future fees established. As an
example, if the City were to establish a City-wide
solid waste fee for new development in order to
fund the construction of new recycling facilities,
any new application submitted under the Specific
Plan and Development Agreement would be exempt from
the fee. Other new development applications in the
City not part of the Specific Plan would be
required to pay the fee.
Section 11.9, Page 7 - Provisions which require the
City to enter into a reimbursement agreement with
the developer to reimburse them for public
facilities constructed by the developer that
benefit other properties as well as the property
governed by the Specific Plan. This includes any
or all of the facilities listed by the developers
as benefits to the City in Section 3 . 1 of the
Development Agreement.
Benefits to the City occur as a result of the project and
would likely occur regardless of whether or not the City
enters into an agreement with the Developer. The Mayor
and Common Council should consider these factors in
Paradise Hills Specific Plan
MCC 2-1-93
Page 4
determining whether or not to approve the Development
Agreement.
o The acquisition and construction of Pepper-Linden Drive
by the applicant has been discussed in several meetings
between the applicant and staff. While the Environmental
Impact Report has determined that Pepper-Linden is not
necessary for access to the project, its acquisition and
construction would alleviate some of the area circulation
concerns. This would benefit the City and should be
included as a provision in the Development Agreement (See ,
Exhibit "H") .
ENVIRONMENTAL ISSUES
o Concern has been raised regarding the adequacy of the
Biological Assessment portions of the Environmental
Impact Report (EIR) . Specifically, the methodologies
used by the Biological Consultant in conducting plant and
wildlife surveys of the site have been questioned by the
California Department of Fish and Game, and others. To
mitigate the concerns, the Planning Commission
recommended certification of the EIR subject to the
Condition that additional survey work related to
biological impacts, be conducted in compliance with
established California Environmental Quality Act (CEQA)
guidelines, and California Department of Fish and Game
(CDFG) guidelines prior to the approval of any phase of
development. A Condition of Approval has been added to
the list of Conditions recommended by the Planning
Commission requiring that this be incorporated into the
Mitigation Monitoring/Reporting Program.
ENVIRONMENTAL DETERMINATION
A brief history of the environmental process prior to hearing of
the project by the Planning Commission can be found in the May 5,
1992 Planning Commission staff report included in Exhibit "A" .
The Environmental Impact Report identifies four impacts which
remain significant as a result of Specific Plan implementation.
They are regional air quality, biological resources, area
jobs/housing balance (population) and solid waste. The City cannot
approve the project given the significant impacts identified by the
EIR unless it makes one or more written findings and prepares
Statements of Overriding Consideration for each of the significant
effects. The Statements of Overriding Consideration reviewed and
recommended by the Planning Commission have been included in the
attached Resolution, Exhibit "I" . .
D
Paradise Hills Specific Plan
MCC 2-1-93
Page 5
As mentioned in the previous section, the adequacy of the
Biological Assessment contained in the Environmental Impact Report,
and the research/survey methodologies have been questioned by the
California Department of Fish and Game (CDFG) and others (See the
CDFG response letters of July 30, 1992 and September 4, 1992,
Exhibit "G-1") . The project biological consultant's (Pacific
Southwest Biological Services) response dated September 1, 1992 is
also included in Exhibit 11G-11' . To resolve the apparent
"differences of opinion" between the CDFG and the project
biological consultant, the City retained the services of Tom
Leslie, of John Minch and Associates. The conclusions of Mr.
Leslie's review can be found in his letters dated November 13 , 1992
and December 9, 1992 , and are included in Exhibit 11G-111 .
On November 17, 1992, the Planning Commission found the
Environmental Impact Report adequate, and recommended
certification, subject to the condition that additional survey work
related to biological impacts be required prior to the approval of
an phase of development, in compliance with established CEQA and
CDFG Guidelines for Biological Mitigation.
MAYOR AND COUNCIL OPTIONS: A Resolution has been prepared and is
included as Exhibit "A" for the approval of Specific Plan No. 90-
03, General Plan Amendment No. 91-07, and Development Agreement No.
91-03 .
The Mayor and Common Council may:
1. Certify the Environmental Impact Report, subject to the
Planning Commissions recommendation, and adopt the
Resolution approving Specific Plan No. 90-03, and General
Plan Amendment No. 91-07, and adopt the Resolution
approving Development Agreement No. 91-03 ; (Supports
Planning Commission's recommendation) .
2. Approve Specific Plan No. 90-03, General Plan Amendment
No. 91-07, and Development Agreement No. 91-03 in
concept, and require revision to any of the three
applications as deemed necessary by the Council, and
continue the projects for 90 days to make the necessary
revisions; or
3 . Deny Specific Plan No. 91-03, General Plan Amendment No.
91-07, and/or Development Agreement No. 91-03 .
PLANNING COMMISSION RECOMMENDATION: The Planning Commission
recommended that the Mayor and Council : (1) certify the EIR,
subject to the condition that additional biological survey work be
completed for the entire site prior to the approval of any phase of
- p
Paradise Hills Specific Plan
MCC 2-1-93
Page 6
development; (2) approve Specific Plan No. 90-03 and General Plan
Amendment No. 91-07 ; and (3) approve Development Agreement No. 91-
03 in concept and require the applicant to revise the Development
Agreement to make clear that the 504 units are a theoretical
maximum, and to include the acquisition and construction of Pepper-
Linden as previously discussed with the applicant.
STAFF RECOMMENDATION: Staff recommends that the Mayor and Common
Council:
1. Adopt in concept the resolution which:
A. Certifies the Environmental Impact Report, subject
to the condition that additional mitigation
including additional survey work related to
biological impacts, as outlined in Appendix G of
the Final EIR, be required for the entire project
site prior to the approval of any phase of
development, pursuant to and in compliance with
established CEQA Guidelines, and established CDFG
Guidelines for Biological Mitigation.
B. Adopts the Environmental Findings for the Statement
of Overriding Consideration.
C. Adopts the Mitigation Monitoring and Reporting
Program.
D. Approves Specific Plan No. 90-03 and General Plan
Amendment No. 91-07, with the requirement that
revisions to the Specific Plan be made to include
the Conditions of Approval contained in Exhibit
"Bit;
2 . Adopt in concept the Resolution which approves
Development Agreement No. 91-03, with the requirement
that the applicant revise the Development Agreement to
clarify that the 504 units are a theoretical maximum, and
to include the acquisition and construction of Pepper-
Linden as previously discussed with the applicant.
5. Continue the items until February 15, 1993, so that the
revisions can be made to the Specific Plan and
Development Agreement for Final Approval.
Paradise Hills Specific Plan
MCC 2-1-93
Page 7
Exhibits: A - Planning Commission Staff Reports*
1. May 5, 1992
2. July 7, 1992
3 . August 4, 1992
4 . October 6, 1992
5. November 17, 1992
B - Planning Commission Conditions of Approval
C - Paradise Hills Specific Plan (July 1991 with
revisions. *
D - Draft Environmental Impact Report (July 1991) *
E - Draft Environmental Impact Report Technical
Appendices (July 1991) *
F - Final Environmental Impact Report*
o Mitigation Monitoring and Reporting
Program
G - Appendix G to Final Environmental Impact Report*
G-1 - Biology Correspondence*
1. July 13, 1992 letter from Pacific
Southwest Biological Services (PSBS)
2. CDFG July 30, 1992 letter
3. September 1, 1992 letter from PSBS
4. CDFG September 4, 1992 letter
5. November 13, 1992 letter from John Minch
& Associates (JMA)
6. December 9, 1992, letter from JMA
H - Department of Public Works Memorandum Regarding
Pepper-Linden Drive*
I - Resolution for the Certification of the EIR,
Adoption of the Statements of Overriding
Consideration and Mitigation Monitoring/Reporting
Program, and the approval of Specific Plan No.
90-03 , General Plan Amendment No. 91-07, and
Development Agreement No. 91-03
* Note: These Exhibits were distributed to the Mayor and
Common Council under separate cover.
EXHIBIT "B"
CONDITIONS OF APPROVAL
The following changes shall be made to the upecific Plan Text:
1. The phasing of parks, trails, open space, and fuel
modification, and responsibility for maintenance shall be
illustrated in the tabular format shown in Attachment "D" of
this staff report and included in the implementation section
of the Specific Plan. The information in the table shall be
revised to reflect the responsible party for maintenance of
the open space and fuel modification areas as determined by
the Planning Commission.
2 . The implementation section shall be revised to require that ,.
slope stability and landslide potential be addressed in all
subsequent geology studies addressing any portion of the
project site.
3 . The Specific Plan shall be revised to remove all references to
mountain biking and biking trails.
4. The implementation section shall be revised to specify that
the developer shall notify a new owner of any subdivision lots
located within 500 feet of the San Bernardino Valley Water
District pipeline, at the time of the purchase agreement and
at the close of escrow of the location, size, and type of the
San Bernardino Valley Water District pipeline.
5. The implementation section shall specify the exclusion of
Planning Area 8 from the Specific Plan until such time that
LAFCO has approved the developers annexation request for
Planning Area 8, and said area is annexed into the City of San
Bernardino.
6. The developer shall negotiate the location of the helipad with
the forestry service and, submit a letter of agreement between
the Forest Service, Fontana Corners III and any other involved
party. If said helipad is to be located within the City
Limits of San Bernardino, it must comply with all requirements
of the City's Development Code and General Plan, including the
submittal and approval of a Conditional Permit. The precise
design and location of the helipad must be environmentally
reviewed and approved prior to recordation of the first tract
map that creates buildable homesites in the Hillside
Residential (HR) area of the Specific Plan.
7. The applicant shall revise the text and exhibits to be in
conformance with the adopted alternative and all other changes
adopted by the City Council. A screencheck of the revised
document shall be submitted to the Planning Department within
30 days of approval of the Specific Plan application. The
screencheck shall be reviewed by City staff for accuracy in
terms of form and content of the changes specified in the
adopting resolution.
8. The implementation section shall be revised to specify that
in the event the Specific Plan, or any project associated with
the Specific Plan, is legally challenged, the City will
promptly notify the applicant of any claim or action and will
cooperated fully in the defense of the matter. Once notified,
the applicant agrees to defend, indemnify, and hold harmless
the City, its officers, agents and employees from any claim,
action, or proceeding against the City of San Bernardino. The
applicant further agrees to reimburse the City of any costs
and attorneys' fees with the City may be required by a court
to pay as a result of any such action, but such participation
shall not relieve the applicant of his or her obligation under
this condition.
9. The implementation section shall be revised requiring the
submittal of a master tract map, prior to or concurrently with
the submittal of the first tentative tract map to create homes
within the Specific Plan. The text shall specify that the
master tract map delineate each of the approved planning areas
as a numbered lot, and the open space as lettered lots. The
master tract shall require the concurrent submittal of a
Conditional Use Permit. The Conditional Use Permit will
determine the number of allowable units available for transfer
from the open space areas, and establish a pool of these units
upon which future developments involving density transfers can
draw. The text shall also specify the use of the master tract
map and file for keeping track of the transfer of units from
the pool.
10. The implementation section shall be revised to include
provisions stating that wherever the Specific Plan is silent
any particular issue, the Development Code requirements
regarding that issue shall govern.
11. The first paragraph of Section 1. 1 on page 2 of the Specific
Plan shall be revised to read:
"The Paradise Hills Specific Plan conforms to the form and
content of Specific Plans as required by the City of San
Bernardino as set forth in _Chapter 19. 64 of the Development
Code. "
12. Principal Objective number 1 under Section 2 . 3, Market and
Development Considerations, page 21 of the Specific Plan shall
be revised as follows:
"Prepare a development proposal that conforms to the goals and
policies of the City of San Bernardino General Plan. "
13 . The Specific Plan text shall be revised to change all
1 _
terms of form and content of the changes specified in the
adopting resolution.
S . The implementation section shall be revised to specify that
in the event the Specific Plan, or any project associated with
the Specific Plan, is legally challenged, the City will
promptly notify the applicant of any claim or action and will
cooperated fully in the defense of the matter. once notified,
the applicant agrees to defend, indemnify, and hold harmless
the City, its officers, agents and employees from any claim,
action, or proceeding against the City of San Bernardino. The
applicant further agrees to reimburse the City of any costs
and attorneys' fees with the City may be required by a court
to pay as a result of any such action, but such participation
shall not relieve the applicant of his or her obligation under
this condition.
9 . The implementation section shall be revised requiring the
submittal of a master tract map, prior to or concurrently with
the submittal of the first tentative tract map to create homes
within the Specific Plan. The text shall specify that the
master tract map delineate each of the approved planning areas
as a numbered lot, and the open space as lettered lots. The
master tract shall require the concurrent submittal of a
Conditional Use Permit. The Conditional Use Permit will
determine the number of allowable units available for transfer
from the open space areas, and establish a pool of these units
upon which future developments involving density transfers can
draw. The text shall also specify the use of the master tract
map and file for keeping track of the transfer of units from
the pool.
10. The implementation section shall be revised to include
provisions stating that wherever the Specific Plan is silent
any particular issue, the Development Code requirements
regarding that issue shall govern.
11. The first paragraph of Section 1. 1 on page 2 of the Specific
Plan shall be revised to read:
"The Paradise Hills Specific Plan conforms to the form and
content of Specific Plans as required by the City of San
Bernardino as set forth in Chapter 19. 64 of the Development
Code. "
12. Principal Objective number 1 under Section 2 . 3, Market and
Development Considerations, page 21 of the Specific Plan shall
be revised as follows:
"Prepare a development proposal -what conforms to the goals and
policies of the Cyty of San Bernardino General Plan. "
13 . The Specific Plan text shall be revised to change all
4M
references to the Draft Development Code of the City of San
Bernardino to the Development Code of the City of San
Bernardino.
14. Exhibit 14 on page 42, the Paradise Drive cross-section shall
be revised to delete the grasscrete section adjacent to
Paradise Drive.
15. Exhibit 34, on page 87, the roadway design superimposed on the
geological constraint map shall be revised to show the roadway
design ultimately approved or deleted from the exhibit
altogether.
16. Section 6. 1, Water Plan, shall be revised to include
requirements that any water reservoirs constructed to serve
the project be painted in a color to match the natural
hillside surrounding and be screened from view with native
trees and vegetation, per the request of USFS.
17. The Specific Plan Chapters dealing with open space and fuel
modification shall be revised to include the a discussion of
who will be responsible for ownership and maintenance of the
open space and fuel modification areas, once the mechanism for
ownership and maintenance of these areas is determined by the
Mayor and Common Council.
18. All references to City review of architectural design through
Precise Plans of Design in Section 9. 0, page 138 of the
Specific Plan shall be deleted and reference made to the
City's Development Permit application process as specified in
Chapter 19.44 of the Development Code, and to the City's
Threshold of Review, Table 31. 01 in the Development Code.
19. The maintenance of all fuel modification zones and open space
shall be addressed in the implantation section of the Specific
Plan. .
20. The Circulation Plan contained in the Specific Plan shall be
revised to be consistent with Alternative 4, as described in
the Final EIR.
21. The implementation section of the Specific Plan and the
Mitigation Monitoring and Reporting Program shall be revised
to include the requirements for the additional biological
surveys.
A
j RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO CERTIFYING THE
ENVIRONMENTAL IMPACT REPORT; ADOPTING FINDINGS AND STATEMENTS OF
3 OVERRIDING CONSIDERATION AND MITIGATION MONITORING/REPORTING
PROGRAM; ADOPTING SPECIFIC PLAN NO. 90-03 (PARADISE HILLS) ;
4 ADOPTING GENERAL PLAN AMENDMENT NO. 91-07 ; AND AUTHORIZING THE
EXECUTION OF DEVELOPMENT AGREEMENT NO. 91-03 .
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. RECITALS.
8 A. WHEREAS, the Mayor and Common Council adopted the General
9 Plan for the City of San Bernardino by Resolution No. 89-159 on
10 June 2 , 1989 ; and
11 B. WHEREAS, the General Plan made provisions for the
12 adoption of specific plans to further implement the goals,
13 objectives and policies; and
14 C. WHEREAS, the Paradise Hills Specific Plan No. 90-03 for
15 the development of 404 acres located northeast of California State
16 University San Bernardino, at the mouth of Badger Canyon has been
17 drafted for the Mayor and Common Council's consideration. The
18 Specific Plan includes General Plan Amendment No. 91-07 , which will
19 change the General Plan land use designation on 110 acres from RL,
20 Residential Low to RS, Residential Suburban; and
21 D. WHEREAS, on March 19, 1992 The Development Review
22 Committee recommended clearance of the Specific Plan, the General
23 Plan Amendment and Development Agreement for hearing by the
24 Planning Commission; and
25 E. WHEREAS, on August 30, 1990 the Environmental Review
26 Committee determined that the Specific Plan, the General Plan
27 Amendment, and the Development Agreement may have a significant
28
1
1 effect on the environment and thus warranted the preparation of an
2 Environmental Impact Report (EIR) pursuant to the California
3 Environmental Quality Act (CEQA) ; and
4 F. WHEREAS, a Draft Environmental Impact Report was prepared
5 to address Specific Plan No. 90-03 , General Plan Amendment No. 91-
6 07 and Development Agreement No. 91-03 other alternatives' impacts
7 in compliance with CEQA and local regulations; and
8 G. WHEREAS, the Draft EIR was made available to the public,
9 responsible agencies and other interested persons for their review
10 and comment from July 26, 1991 to September 9, 1991, as required by
11 CEQA; and
12 H. WHEREAS, verbal and written comments were received on the
13 Draft EIR; and
14 I . WHEREAS, these comments were responded to both orally and
15lin writing as required by CEQA; and
16 J. WHEREAS, the Planning Commission held a public workshop
17 on September 17, 1991 to receive additional comments on the Draft
i8 EIR; and
19 K. WHEREAS, the Planning Commission conducted noticed public
20 hearings on May 5, 1992 , August 4, 1992 , and November 17, 1992 in
21 order to receive public testimony and written and oral comments on
22 the EIR, Specific Plan, General Plan Amendment, and Development
23 Agreement; and
24 L. WHEREAS, the proposed Mitigation Monitoring/Reporting
25 Program was reviewed by the Planning Commission in compliance with
26 CEQA.
27
28
2
1 M. WHEREAS, the Planning Commission, after receiving public
2 testimony, recommended certification of the Environmental Impact
3 Report, adoption of the Findings and Statements of Overriding
4 Consideration, adoption of the Mitigation Monitoring/Reporting
5 Program, approval of Specific Plan No. 90-03 , approval of General
6 Plan Amendment No. 91-07, and approval of Development Agreement No.
7 91-03 ; and
8 N. WHEREAS, the Mayor and Common Council conducted a noticed
9 public hearing on February 1, 1993 and fully reviewed and
10 considered the Final EIR, the Mitigation Monitoring/Reporting
11 Program, the Findings and Statements of Overriding Consideration,
12 the Specific Plan, the General Plan Amendment, the Development
13 Agreement, the Planning Division staff reports and the
14 recommendation of the Planning Commission;
15 SECTION 2 . ENVIRONMENTAL.
16 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL HEREBY CERTIFY:
17 (A) The Final Environmental Impact Report for Specific Plan
18 No. 90-03 , General Plan Amendment No. 91-07, and Development
19 Agreement No. 91-03 , Paradise Hills, has been completed in
20 compliance with the California Environmental Quality Act;
21 (B) The Final Environmental Impact Report was presented to
22 the Mayor and Common Council who have reviewed and considered the
23 information in the Environmental Impact Report prior to adopting
24 the Paradise Hills Specific Plan (SP NO. 90-03) , General Plan
25 Amendment No. 91-07 , and Development Agreement No. 91-03 . The
26 Final Environmental Impact Report and all the evidence and
27 information contained therein is attached hereto as Attachment 1
28
3
a
s 1 (Exhibits D, E, F, G, and G-1 of the February 1, 1993 Mayor and
2 Common Council Staff Report) and incorporated herein by reference.
3 Attachment 1 consists of the following documents:
4 Exhibit D - Draft Environmental Impact Report (July 1991)
5 Exhibit E - Draft Environmental Impact Report Technical
6 Appendicies (July 1991)
7 Exhibit F - Final Environmental Impact Report
8 Mitigation Monitoring and Reporting Program
9 Exhibit G - Appendix G to Final Environmental Impact Report
10 Exhibit G-1 - Biology Correspondence;
11 (C) The Findings contained in the Statements of Overriding
12 Consideration with respect to the significant impacts identified in
13 the Final EIR are true and correct, and are based upon substantial
14 evidence in the record, including documents comprising the Final
15 EIR. The Findings and Statements of Overriding Consideration are
16 attached hereto as Attachment 2 and are incorporated herein by
17 reference.
18 (D) The Final Environmental Impact Report, the Mitigation
19 Monitoring/Reporting Program and the Findings and Statements of
20 Overriding Consideration reflect the independent review and
21 analysis and the independent judgement of the City of San
22 Bernardino.
23 (E) The Final EIR has identified all significant
24 environmental effects of Specific Plan No. 90-03 , General Plan
25 Amendment No. 91-07, and Development Agreement No. 91-03 , and
26 there are no known potentially significant environmental effects
27 not addressed in the Final EIR.
28
4
A
I
1 (F) Although the Final EIR identifies certain significant
2 environmental effects that would result if Specific Plan No. 90-03 ,
3 General Plan Amendment No. 91-07 , and Development Agreement No. 91-
4 03 are adopted, all significant effects that can feasibly be
5 avoided or mitigated will be avoided or mitigated by the
6 implementation of the mitigation measures as set forth in the
7 Mitigation Monitoring/Reporting Program for the Final EIR.
8 (G) Potential mitigation measures and project alternatives
9 not incorporated into or adopted as part of the Specific Plan,
10 General Plan Amendment, or Development Agreement were rejected as
11 infeasible, based on specific economic, social or other
12 considerations as set forth in the Findings and Statements of
13 Overriding Consideration.
14 (H) The Mayor and Common Council have given great weight to
15 the significant unavoidable adverse environmental impacts. The
16 Mayor and Common Council find that the significant unavoidable
17 adverse impacts are clearly outweighed by the economic, social and
18 other benefits of the Specific Plan, the General Plan Amendment,
19 and the Development Agreement as set forth in the Findings and
20 Statements of Overriding Considerations.
21 SECTION 3 . FINDINGS - SPECIFIC PLAN.
22 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
23 City of San Bernardino that:
24 (A) Specific Plan No. 90-03 , Paradise Hills, is consistent
25 with the General Plan, in that it refines and implements General
26 Plan objectives and policies applicable to the project site.
27
28
5
1 (B) The Specific Plan will ensure development of desirable
2 character which will be compatible with existing and proposed
3 development in the surrounding area in that the Specific Plan will
4 be implemented subject to the requirements contained therein.
5 (C) The Specific Plan area, including the General Plan
6 Amendment area, is physically suitable for the requested land use
7 designation and the anticipated development as analyzed in the
8 Final Environmental Impact Report, which determined the development
9 desirable and appropriate for the area; all public services and
10 infrastructure are available to the project area and any
11 development permissible under the Specific Plan would not impact on
12 these facilities.
13 (D) The proposed plan will ensure development of a desirable
14 character which will be compatible with existing and proposed
15 1 development in that the policies established by the Plan are
16 intended to encourage high quality development of a nature
17 consistent with surrounding developments.
18 (E) The Specific Plan will contribute to a balance of land
19 uses so that the local residents may work and shop in the community
20 in which they live in that the plan proposes residential land uses.
21 The site is designated by the General Plan for residential land
22 uses, and the theoretical maximum number of units obtainable on the
23 site does not change.
24 (F) Specific Plan No. 9003 , Paradise Hills, is attached as
25 Attachment 3 (Exhibit C of the February 1, 1993 Mayor and Common
26 Council Staff Report) and incorporated herein by reference.
27
28
6
1 SECTION 4 . FINDINGS - GENERAL PLAN AMENDMENT.
2 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
3 City of San Bernardino that:
4 (A) General Plan Amendment No. 91-07 is consistent with the
5 Goals, Objectives and Policies of the General Plan. The intent of
6 the General Plan Amendment is to supplement General Plan Policies
7 for reducing the number of units in the Hillside Management Overlay
8 by creating a receiving area outside the Overlay for the transfer
9 of dwelling units from the hillsides.
10 (B) General Plan Amendment No. 91-07 will not be detrimental
11 to the public interest, health, safety, convenience, or welfare, in
12 that the purpose of the amendment is to reduce impacts as addressed
13 in the EIR. Future subdivisions will require and be subject to
14 further environmental review.
15 (C) General Plan Amendment No. 91-07 will not impact the
16 balance of land uses within the City. Although the amendment will
17 result in a higher development density in the foothill areas of the
18 project site, the potential overall theoretical number of units
lg obtainable for the project site will not change.
20 (D) The subject land use is physically suitable for the RS,
21 Residential Suburban land use designation in that the access and
22 the provision of services and utilities will occur as outlined in
23 the related Specific Plan. The designation will accommodate the
24 transfer of units from areas with physical constraints.
25 (E) A Map of the area affected by General Plan Amendment No.
26 91-07 and accompanying Legal Description have been included as
27 Attachment 4 .
28
7
• 1 SECTION 5. FINDINGS - DEVELOPMENT AGREEMENT.
2 BE IT FURTHER RESOLVED by the Mayor and Common Council of the
3 City of San Bernardino that:
4 (A) Development Agreement No. 91-03 is not in conflict with
5 the Goals, Objectives, and Policies of the General Plan.
6 (B) Development Agreement No. 91-03 is consistent with the
7 Development Code.
8 (C) Development Agreement No. 91-03 will promote the welfare
9 and public interest of the City.
10 (D) Development Agreement No. 91-03 , is included as
11 Attachment 5.
12 SECTION 6.
13 NOW THEREFORE BE IT RESOLVED, FOUND AND DETERMINED by the
14 Mayor and Common Council that:
15 A- The Final Environmental Impact Report is certified, the
16 Findings and Statements of Overriding Consideration are
17 adopted, the Mitigation Monitoring/Reporting Program is
18 adopted, Paradise Hills Specific Plan No. 90-03 , is adopted,
19 General Plan Amendment No. 91-07 is adopted and Development
20 Agreement No. 91-03 is adopted.
21 B. The Mayor is hereby authorized and directed to execute on
22 behalf of said City, Development Agreement No. 91-03 .
23 C. The authorization to execute Development Agreement No. 91-03
24 is rescinded if the parties to the agreement fail to execute
25 it within sixty (60) days of the passage of this resolution.
26 D. Development Agreement No. 91-03 , after execution of the
27 agreement by all parties, shall be effective as of the date of
28
8
'A
1 the adoption and execution of this resolution.
2 SECTION 7 . MAP NOTATION.
3 This resolution and the General Plan Amendment affected by it
4 shall be noted on such appropriate General Plan maps as have been
5 previously adopted and approved by the Mayor and Common Council and
6 which are on file in the office of the City Clerk.
7 SECTION 8 . NOTICE OF DETERMINATION.
8 The Planning Division is hereby directed to file a Notice of
9 Determination with the County Clerk of the County of San Bernardino
10 certifying the City's compliance with the California Environmental
11 Quality Act in preparing and adopting the Final Environmental
12 Impact Report and Mitigation Monitoring/Reporting Program, and
13 Findings and Statement of Overriding Consideration.
14 SECTION 9. Recordation
15 The developer shall record the Development Agreement in the
16 Office of the County Recorder no later than ten (10) days after it
17 is executed by the parties.
18 ////
19
20
21
22
23
24
25
26
27
28
9
i
1 RESOLUTION . . .CERTIFYING THE ENVIRONMENTAL IMPACT REPORT;
ADOPTING FINDINGS AND STATEMENTS OF OVERRIDING CONSIDERATION, AND
2 MITIGATION MONITORING/REPORTING PROGRAM; ADOPTING SPECIFIC PLAN NO.
90-03 (PARADISE HILLS) ; ADOPTING GENERAL PLAN AMENDMENT NO. 91-07,
3 AND DEVELOPMENT AGREEMENT NO. 91-03 .
4 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF DEVELOPMENT AGREEMENT NO. 91-03
5
I HEREBY CERTIFY that the foregoing resolution was duly
6
adopted by the Mayor and Common Council of the City of San
7 Bernardino at a meeting therefore held on the
8
day of 1993, by the following vote to
9 wit:
10 Council Members AYES NAYS ABSTAIN ABSENT
11 ESTRADA
12 REILLY
13
HERNANDEZ
14 MAUDSLEY
15 MINOR
16 POPE-LUDLAM
17 MILLER
18
19 City Clerk
20 The foregoing resolution is hereby approved this
21 day of 1993 .
22
23 W.R. Holcomb, Mayor
City of San Bernardino
24 Approved as to
25 form and legal content:
26 JAMES F. PENMAN
City Attorney
27
Y:
28
10
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN
P.O. BOX 1148
RIVERSIDE, CALIFORNIA 92502-1148
ATTENTION: FRANK J. DELANY, ESQ.
Space Above This Line For Recorder's Use
DEVELOPMENT AGREEMENT
between
FONTANA CORNERS III
and
CITY OF SAN BERNARDINO
101R\A286\O1 R\DEVELOP.AGM
TABLE OF CONTENTS
Section Page
1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3 Mutual Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4 Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5 Binding Effect of Agreement. . . . . . . . . . . . . . . . . . . . . . 3
6 Project as a Private Undertaking. . . . . . . . . . . . . . . . . 3
7 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8 Changes in Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9 Hold Harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 Vested Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11 General Development of the Project. . . . . . . . . . . . . . . 5
12 Rules, Regulations and Official Policies. . . . . . . . . 8
13 Amendment or Cancellation of Agreement. . . . . . . . . . . 8
14 Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
15 Periodic Review of Compliance With Agreement. . . . . 8
16 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
17 Institution of Legal Action. . . . . . . . . . . . . . . . . . . . . . 9
18 Waivers and Delays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
19 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
20 Attorney' s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
21 Transfers and Assignments. . . . . . . . . . . . . . . . . . . . . . . . 10
22 Cooperation in the Event of Legal Challenge. . . . . . 11
23 Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
24 Authority to Execute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25 Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . it
26 Protection of Mortgage Holders. . . . . . . . . . . . . . . . . . . 11
27 Severability of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
28 Subsequent Amendment to Authorizing Statute. . . . . . 12
29 Section Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
30 Incorporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
31 Rules of Construction and Miscellaneous Terms. . . . 12
32 Effect on Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10/R\A286\01R\DEVEL0P.AGM i
EXHIBIT
"A" LEGAL DESCRIPTION OF PROPERTY
"B" STANDARDS AND SPECIFICATIONS FOR DEVELOPMENT OF THE
PROPERTY: PARADISE HILLS SPECIFIC PLAN
"C" ASSESSMENTS AND FEES APPLICABLE TO DEVELOPMENT OF
THE PROPERTY
"D" REIMBURSEMENT AGREEMENT
10/R\A286\0lR\DEVEL0P.AGM 11
DEVELOPMENT AGREEMENT
(Pursuant to Government Code
Sections 65864 - 65869 .5)
THIS DEVELOPMENT AGREEMENT ( "Agreement" ) is entered into on
, 1993 , between FONTANA CORNERS III, a California
limited partnership ( "Developer" ) , and the CITY OF SAN BERNARDINO,
a municipal corporation organized and existing under the laws of
the State of California ( "City" ) . Developer and City are sometimes
collectively referred to herein as the "parties. "
R E C I T A L S
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized
terms which are defined in this Agreement. The parties intend to
refer to those definitions in conjunction with the use thereof in
these Recitals.
B. California Government Code ( "Government Code") Sections
65864-65869 .5 (collectively the "Development Agreement Law")
authorizes the City to enter into binding development agreements
with persons having a legal or equitable interest in real property
for the development of such property, all for the purpose of
strengthening the public planning process, encouraging private
participation and comprehensive planning and reducing the economic
costs of such development.
C. This Agreement is adopted pursuant to Government Code
Section 65865 and San Bernardino Municipal Code Chapter 19 .40 .
D. Developer is the fee owner and proposed developer of
approximately four hundred four (404) acres of land as described on
Exhibit "All (the "Property") , substantially all of which is located
in the City. A portion of the Property is in the process of being
annexed to the City.
E. Developer proposes to develop a multi-phased master-
planned single family residential community (the "Project")
requiring major investment in public facilities and substantial
front end investment in on-site and off-site improvements in order
to make the Project feasible.
F. City' s General Plan designation for the Property is
single family residential . Developer and City desire to provide
through this Development Agreement certain development criteria and
parameters of allowable development applicable to the Property
which will provide for maximum, efficient utilization of the
Property in accordance with sound planning principles as adopted by
the City.
G. Developer has requested City to consider entering into a
development agreement relating to the Project and proceedings have
been taken in accordance with City' s rules and regulations relating
to development agreements.
H. The City Council has found that this Agreement:
(a) Is consistent with the objectives, policies, general
land uses and programs specified in the City' s General Plan, the
City' s Development Code, and the Paradise Hills Specific Plan (as
that term is defined below) ; and
City. (b) Will promote the welfare and public interest of the
I. On , 199_, the City Council of the City
adopted Resolution No. _, approving this Agreement with Developer.
10MA286\01RIDEVELOP.AGM 1
J. City has found and determined that the execution of this
Agreement is in the best interest of the public health, safety and
general welfare of City and its residents and that adopting this
Agreement constitutes a present exercise of its police power.
A G R E E M E N T
WHEREFORE, the parties agree as follows:
1. Definitions .
1.1 "Agreement" is this Development Agreement.
1 .2 "Agreement Date" is the date this Agreement is
approved by the City Council .
1 . 3 "City" is the City of San Bernardino, California.
1.4 "Development Plan" is all of those ordinances,
resolutions, codes (except as provided in Section 12 . 1) , rules,
regulations and official policies of City governing the development
and use of the Property as of the Agreement Date, including,
without limitation, the permitted uses of the Property, the density
and intensity of use, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for
public purposes, and the design, improvement and construction
standards and specifications applicable to the development of the
Property. Specifically, but without limitation, the Development
Plan for purposes of this Agreement shall, except as otherwise
provided in the Paradise Hills Specific Plan, allow Developer to
develop the Property as a multi-phased, master-planned single
family residential community with five hundred four (504) single
family residential dwelling units which will result in an average
residential density of 1.24 dwelling units per acre for the 404
acres of the Property. Development of the single family
residential dwelling units shall generally be in accordance with
the standards and specifications of the Paradise Hills Specific
Plan as approved by City which such standards and requirements
shall, to the extent they are in excess of the minimum standards
and requirements of the City Development Code as of the Agreement
Date, supersede and replace such minimum standards and
requirements. To the extent any of the foregoing are amended from
time to time with the consent of Developer, the "Development Plan"
shall include such matters as so amended. Notwithstanding the
immediately preceding sentence, if this Agreement is required by
law to be amended in order for the "Development Plan" to include
such amendments, the "Development Plan" shall not include such
amendments unless and until this Agreement is so amended.
1.5 "Developer" is Fontana Corners III, a California
limited partnership, and its successors in interest to all or any
part of the Property.
1. 6 "Effective Date" is that date which is the later to
occur of: (a) the time for filing a referendum petition relating to
this Agreement expires if no such petition is filed within such
period; or (b) the results of a referendum election are declared
approving this Agreement if a referendum petition is filed within
the applicable period; or (c) in the event of any legal action
relating to or affecting the validity or enforceability of this
Agreement, including without limitation any action challenging the
approval or validity of this Agreement or any referendum related to
it, the date of dismissal with prejudice of the action, or of final
disposition of the action by the court and exhaustion or
termination of all applicable periods for judicial review, whether
by writ, appeal, or otherwise.
1. 7 "Paradise Hills Specific Plan" is that certain
Specific Plan adopted by the City pursuant to California Government
Code Section 65450, et seq. , which Plan establishes the standards
and specifications for the Project.
10/R A29MO R\DEVELOP.AGM 2
1. 8 "Project" is the proposed development of the
Property as a multi-phased, master-planned single family
residential community.
1 . 9 "Property" is the real property on which the Project
is, or will be, located as described on Exhibit "A" .
2 . Exhibits. The following documents are referred to in
this Agreement, attached hereto and incorporated herein by this
reference:
Exhibit Designation Description
A Legal Description of the Property
B Standards and Specifications for
Development of the Property:
Paradise Hills Specific Plan
C Assessments and Fees Applicable to
Development of the Property
D Reimbursement Agreement
3 . Mutual Benefits. This Agreement is entered into for the
purpose of carrying out the Development Plan for the Project in a
manner that will insure certain anticipated benefits to both City
(including, without limitation, residents of City) and Developer as
set forth in this section. City and Developer agree that certain
assurances on the part of each party as to the Project will be
necessary to achieve those desired benefits.
3 . 1 Benefits to City. The benefits to City (including,
without limitation, the residents of City) under this Agreement
include, but are not limited to: (a) improvements to roadways;
(b) the payment of fees for the construction of public facilities
and services; (c) an increase in property tax revenues and sales
tax revenues to be derived by the City; (d) the creation of jobs
within the City; (e) the creation of a master-planned single family
residential community which will enhance the image of the City and
its ability to attract new employers; (f) the creation of a unique
public park with an educational and environmental theme; and (g)
the preservation of approximately one hundred seventy-five (175)
acres of open space within the City.
3 .2 Benefits to Developer. Developer has expended and
will continue to expend substantial amounts of time and money on
the planning and infrastructure construction of the Project. In
addition, Developer will expend substantial amounts of time and
money in constructing public improvements and facilities and in
providing for public services in connection with the Project.
Developer would not make such additional expenditures without this
Agreement and such additional expenditures will be made in reliance
upon this Agreement. The benefit to Developer under this Agreement
consists of the assurance that Developer will preserve the right to
develop the Project.
4. Interest of Developer. Developer represents that
Developer is the fee owner of the Property.
5. Binding Effect of Agreement. The burdens of this
Agreement bind and the benefits of this Agreement inure to the
successors in interest of the parties thereto.
6 . Project as a Private Undertaking. It is specifically
understood and agreed by and between the parties hereto that the
development of the Project is a private development, that neither
party is acting as the agent of the other in any respect hereunder,
and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of
any kind is formed by this Agreement. The only relationship
between City and Developer is that of a government entity
10MA286\01 RWEVELOP.AGM 3
regulating the development of private property by the owner of such
property.
7. Term. The term of this Agreement shall commence upon the
Effective Date and shall continue until all permits and approvals
required to complete the development of the Project as contemplated
by the Development Plan have been issued, provided that in no event
shall such term exceed twenty (20) years following the Effective
Date of this Agreement.
8 . Changes in Project . Developer shall not be entitled to
any change, modification, revision or alteration in the Development
Plan relating to the permitted uses of the Property, the density or
intensity of use, the maximum height and size of proposed buildings
or the provision for reservation or dedication of land for public
purposes without review and approval by the City. Subject to the
foregoing provisions of this Section 8, City acknowledges that
Developer may seek new entitlements to use and amendments to
entitlements to use in connection with the development of the
Project. The approval of any such amendments or new entitlements
to use shall be in the sole discretion of the City in the manner
described in 11.4 .
9 . Hold Harmless.
9 . 1 By Developer. Developer agrees to and shall defend,
indemnify and hold harmless City, its elected officials, officers,
agents, employees, and representatives from: (a) liability for
damage or claims for damage for personal injury including death and
claims for property damage which may arise from the activities of
Developer or those of Developer' s contractors, subcontractors,
agents, employees or other persons acting on Developer' s behalf
which relate to the Project; and (b) any claims, costs and
liability arising as a result of any legal action brought against
City which challenges the validity of this Agreement, the Paradise
Hills Specific Plan, the Project Environmental Impact Report, or
the Project General Plan Amendment or any City proceedings relating
to the approval of any of such documents, or any of the terms and
conditions herein. Nothing in this section shall be construed to
mean that Developer shall hold City harmless and defend it from any
claims of personal injury, death or property damage arising from,
or alleged to arise from, the negligence, or any deliberately
harmful act, willful or gross negligence on the part of City, its
elected representatives, officers, agents and employees.
9 .2 By City. City agrees to and shall hold harmless
Developer, its officers, agents, employees, partners and
representatives from liability for damage or claims for damage for
personal injury including death and claims for property damage
which may arise from the activities of City or those of City' s
contractors, subcontractors, agents, employees or other persons
acting on City' s behalf which relate to the Project.
10 . Vested Right. By entering into this Agreement and
relying thereon, Developer is obtaining a vested right to proceed
with the Project in accordance with the Development Plan and City
is securing certain public benefits which help to alleviate current
or potential problems in City and enhance the public health, safety
and welfare. With respect to Government Code Section 65865 .2, the
development regulations governing subsequent discretionary actions
are the ordinances and regulations of City adopted as of the
Agreement Date. Upon submission by Developer of all appropriate
applications for such subsequent discretionary approvals for the
Project, City shall promptly commence and diligently prosecute all
procedures necessary to authorize such approvals. As provided in
Government Code Section 65865 .2, any subsequent discretionary
actions by City or any conditions, terms, restrictions and
requirements for such discretionary actions by City shall not
prevent the development of the Project for the uses and to the
maximum density or intensity of development set forth in this
Agreement. City therefore agrees to the following:
10/R\A286\01 R\DEVELOP.AGM 4
10 . 1 No Conflicting Enactments. Neither the City Council
or City nor any other agency of City shall enact an ordinance,
policy, rule, regulation or other measure applicable to the Project
which relates to the rate, timing or sequencing of the development
or construction of all or any part of the Project or which is
otherwise in conflict with the Project as described in this
Agreement.
10 .2 Intent of Parties. In addition to and not in
limitation of the foregoing, it is the intent of Developer and City
that no moratorium or other limitation (whether relating to the
rate, timing or sequencing of the development or construction of
all or any part of the Project and whether or not enacted by
initiative or otherwise) affecting subdivision maps, building
permits, occupancy certificates or other entitlements to use
approved, issued or granted within City, or portions of City, shall
apply to the Project to the extent such moratorium or other
limitation is in conflict with this Agreement. The foregoing shall
not be deemed to limit the Developer' s right to appeal any
determination of such ordinance, general plan or zoning amendment,
measure, policy, rule, regulation, moratorium or other limitation
which purports to invalidate or prevail over all or any part of
this Agreement. City agrees to cooperate with Developer in all
reasonable manners in order to keep this Agreement in full force
and effect.
10.3 Subsequent Review. All subsequent review of
development of the Project shall be subject to the terms and
conditions of this Agreement and the provisions of Government Code
Section 65865 .4 and 65866 .
11. General Development of the Project.
11.1 Project. While this Agreement is in effect,
Developer shall have a vested right to develop the Project in
accordance with the terms and conditions of this Agreement, and
City shall have the right to control the development of the Project
in accordance with the terms and conditions of this Agreement.
Except as otherwise specified in this Agreement, the Development
Plan shall control the overall design, development and construction
of the Project. The permitted uses of the Property, the density
and intensity of use, the maximum height and size of proposed
buildings, the provision for reservation and dedication of land for
public purposes and other terms and conditions of development
applicable to the Property shall be those set forth in the
Development Plan. The parties hereto acknowledge that Developer' s
vested right to develop 504 single-family residential dwelling
units on the Property is subject to Developer' s compliance with all
provisions of the Development Plan, including the Paradise Hills
Specific Plan and the Conditions of Approval imposed by City in
connection with the approval of such Specific Plan.
11.2 Phasing and Timing of Development. The parties
acknowledge that although Developer currently anticipates that the
Project will be phased and constructed in increments over an
approximately twenty (20) year time frame, at the present time
Developer cannot predict when or the order in which Project phases
will be developed. Such decisions depend upon numerous factors
which are not within the control of Developer, such as market
orientation and demand, interest rates, competition and other
similar factors. To the extent permitted by the Development Plan
and this Agreement, Developer shall have the right to develop the
Project in phases in such order and at such times as Developer
deems appropriate within the exercise of its subjective business
judgment so long as the Project is constructed as an integrated
mixed-use master-planned single-family residential community as
contemplated by the Development Plan. City agrees that Developer
shall be entitled to apply for and receive tentative tract maps,
vesting tentative tract maps, building permits, occupancy
certificates and other entitlements to use at any time, in as
expeditious a manner as possible provided that such application is
made in accordance with the Development Plan.
1 O/R\A286\O1 R\DEV ELOP.AGM 5
C
11 . 3 Effect of Agreement on Land Use Regulations. The
rules, regulations and official policies governing permitted uses
of the Property, the density and intensity of use of the Property,
the maximum height and size of proposed buildings and the design,
improvement and construction standards and specifications
applicable to development of the Property are those rules,
regulations and official policies in force as of the Agreement Date
except as provided in Section 12 . 1. In connection with any
approval which City is permitted or has the right to make under
this Agreement relating to the Project, or otherwise under its
other rules, regulations and official policies, City shall exercise
its discretion to take action in a manner which is as expeditious
as possible and which complies and is consistent with the
Development Plan and the standards, terms and conditions contained
in this Agreement, and in a manner which will not interfere with
the development of the Project for the uses and to the height,
density and intensity specified in this Agreement or with the rate
of development selected by Developer. City shall accept for
processing and timely review and act on all applications for
further land use entitlement approvals with respect to the Project
called for or required under this Agreement in as expeditious a
manner as is possible. Such application shall be processed in the
normal manner for processing such matters.
11 .4 Administrative Changes and Amendments. 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. The
parties desire to retain a certain degree of flexibility with
respect to the details of the Project development and with respect
to those items covered in general terms under this Agreement. If
and when the parties find that changes or adjustments are necessary
or appropriate, they shall, unless otherwise required by law,
effectuate such changes or adjustments through administrative
amendments approved by the City Director of Community Development,
which, after execution, shall be attached hereto as an addenda and
become a part hereof, and may be further changed and amended from
time to time as necessary, with approval by City and Developer.
Any such administrative changes or amendments shall not be deemed
to be an amendment to this Agreement under Government Code Section
65868, and unless otherwise required by law, no such administrative
amendments shall require prior notice or hearing. Notwithstanding
the foregoing, the following matters shall not be considered
administrative changes or amendments, but shall be considered
substantive amendments which shall be reviewed by the Planning
Commission and approved by the City Council :
(a) Alteration of the permitted uses of the Property;
(b) Increase in the density or intensity of use or the
number of lots;
(c) Increase in the maximum height and size in permitted
buildings;
(d) Deletion of a requirement for the reservation or
dedication of land for public purposes except for minor boundary
adjustments approved by the City Director of Community Development;
and
(e) Any amendment or change requiring a subsequent or
supplemental environmental impact report pursuant to California
Public Resources Code Section 21166.
11.5 Mello-Roos Community Facilities District; Other
Assessment District or Financing Mechanisms. Pursuant to Chapter
2 .5 (commencing with Section 53312) Part I, Division 2, Title 5 of
the Government Code, commonly known as the "Mello-Roos Community
Facility Act of 198211 , Developer may, at its sole election,
petition the City Council of City to establish a community
facilities district including the Property for the purpose of
acquiring, constructing and financing through the sale of bonds the
acquisition and construction of certain public facilities which are
I OIR\A286\01 R\DEVELOP.AGM 6
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necessary to meet increased demands placed on City as a result of
the development of Developer' s Property. Alternatively, or in
addition thereto, Developer may request that City initiate and
complete proceedings under the Municipal Improvement Act of 1911,
the Municipal Improvement Act of 1913, the Improvement Bond Act of
1915, the Landscaping and Lighting Act of 1972, or any and all
other available financing mechanisms to provide public conduit
financing for the construction of public improvements on the
Property. If so requested by Developer, City shall cooperate with
Developer and use its best efforts in taking all steps necessary to
cause the community facilities district or other entity to issue
bonds for such purposes.
11. 6 Consistency Between This Agreement and Current Laws .
City represents that there are no rules, regulations, ordinances or
official policies of City enforced as of the date of execution of
this Agreement that would interfere with the completion or use of
the Project.
11. 7 Assessments and Fees. It is the intent of the
parties that Developer shall pay all development fees currently
applicable to the Project and that the amount of such fees shall be
set at the time such fees are otherwise due or payable.
Accordingly, City shall not, without the prior written consent of
Developer, impose any additional assessment or fee applicable to
the Project or any portion thereof, or impose any additional fees
as a condition to the implementation of the Project or any portion
thereof, except those assessments and fees in effect on the
Agreement Date as set forth on Exhibit "C" (collectively,
"Applicable Fees" ) . Notwithstanding the foregoing, Applicable Fees
payable to City shall be paid at rates applicable on the date said
fees are otherwise due and payable.
11. 8 Subsequent Actions. City shall timely process, in
as expeditious a manner as possible for processing such matters,
any necessary entitlements to use, including parcel maps, vesting
tentative tract maps, tentative tract maps, conditional use
permits, or other discretionary approvals or entitlements to use
contemplated by the Project, and any grading, construction or other
permits filed by Developer in accordance with the substantive
development standards set forth in the Development Plan. The term
of any tentative map filed for the Property, or any portion
thereof, within the term of this Agreement shall automatically be
extended for the term of this Agreement.
11.9 Reimbursement To Developer.
A. Developer, in order to develop the Project and
to mitigate certain impacts resulting therefrom, will have to
comply with the Conditions of Approval for Specific Plan for the
Project.
B. For those public improvements or facilities
( "Facilities") designed, constructed or installed by Developer
which benefit not only the Property, but also property in addition
to the Property ( "Benefitting Properties") a reimbursement
agreement (the "Reimbursement Agreement") shall be executed by the
City and Developer.
C. The Reimbursement Agreement shall : (a) be in
form and substance identical to Exhibit "D" attached hereto and
incorporated herein by this reference; and (b) provide for
reimbursement to Developer when: (i) an Engineering Benefit Zone
Study ( "EBZ Study") prepared pursuant hereto shows that, with
respect to any public improvement or facility designed, constructed
or installed by Developer, there exists Benefitting Properties; or
(ii) Developer is entitled to reimbursement pursuant to City
ordinances, resolutions and policies, e.g. , reimbursement for
certain water, sewer and storm facilities.
D. City shall, from time to time, at the request
of Developer and at Developer' s expense, cause an EBZ Study with
respect to one or more of the Facilities to be prepared and, after
10/R\A286\OIR\DEVELOP.AGM 7
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review and acceptance by the City of the EBZ Study, shall enter
into Reimbursement Agreements with Developer with respect to the
Benefitted Properties identified in such Study.
12 . Rules, Regulations and Official Policies .
12 . 1 New Rules. This Agreement shall not prevent City
from applying new rules, regulations and policies relating to
Uniform Codes such as the Uniform Building Code, Uniform Electrical
Code, Uniform Mechanical Code or Uniform Fire Code, which:
(a) relate to public safety; (b) are based on recommendations of a
multi-state professional organization; and (c) become applicable
throughout City.
12 .2 New Laws. In the event that state or federal laws
or regulations, enacted after this Agreement is executed, prevent
or preclude compliance with one or more of the provisions of this
Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal
laws or regulations; provided, however, that this Agreement shall
remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and to the extent such
laws or regulations do not render such remaining provisions
impractical to enforce.
12 .3 Subsequent Actions and Approvals . In accordance
with Government Code Section 65866, this Agreement shall not
prevent City in subsequent actions applicable to the Property from
applying new rules, regulations and policies which do not conflict
with those existing rules, regulations and policies set forth in
the Development Plan, nor shall this Agreement prevent City from
denying or conditionally approving any subsequent development
project application on the basis of such existing or new rules,
regulations or policies; provided that Developer' s vested right to
develop the Project pursuant to Section 10 above is not impaired by
any such actions or applications by the City.
13 . Amendment or Cancellation of Agreement. This Agreement
may be amended or canceled in whole or in part only by mutual
consent of the parties in the manner provided for in Government
Code Section 65868 .
14 . Enforcement. Unless amended or canceled as provided in
Section 13, or modified or suspended pursuant to Government Code
Section 65869 .5, this Agreement is enforceable by either party
hereto notwithstanding any change in any applicable general or
specific plan, zoning, subdivision or building regulation or other
applicable law or regulation adopted by City (or by the voters of
City unless found by a court of competent and final jurisdiction to
prevail over this Agreement) .
15 . Periodic Review of Compliance With Agreement.
15 . 1 Periodic Review. City and Developer shall review
this Agreement at least once every twelve (12) months from the date
this Agreement is executed. City shall notify Developer in writing
of the date for review at least thirty (30) days prior thereto.
15 .2 Good Faith Compliance. During each periodic review,
each party is required to demonstrate good faith compliance with
the terms of this Agreement. Each party agrees to furnish such
reasonable evidence of good faith compliance as the other party, in
the exercise of its reasonable discretion, may require.
16 . Events of Default.
16 .1 Default by Developer. If City determines on the
basis of substantial evidence that Developer has not complied in
good faith with the terms and conditions of this Agreement, City
shall, by written notice to Developer, specify the manner in which
Developer has failed to so comply and state the steps Developer
must take to bring itself into compliance. If, within ninety (90)
10MA28MOMDEVELOP.AGM 8
4
days after the effective date of notice from City specifying the
manner in which Developer has failed to so comply, Developer does
not commence all steps reasonably necessary to bring itself into
compliance as required and thereafter diligently pursue such steps
to completion, then Developer shall be deemed to be in default
under the terms of this Agreement and City may terminate this
Agreement .
16 .2 Default by City. If Developer determines on the
basis of substantial evidence that City has not complied in good
faith with the terms and conditions of this Agreement, Developer
shall, by written notice to City, specify the manner in which City
has failed to so comply and state the steps City must take to bring
itself into compliance. If, within ninety (90) days after the
effective date of notice from Developer specifying the manner in
which City has failed to so comply, City does not commence all
steps reasonably necessary to bring itself into compliance as
required and thereafter diligently pursue such steps to completion,
then City shall be deemed to be in default under the terms of this
Agreement and Developer may terminate this Agreement or seek
specific performance as set forth in Section 16 .3 .
16 .3 Specific Performance Remedy. Due to the nature and
scope of the Project, it will not be practical or possible to
restore the Property to its natural condition once implementation
of this Agreement has begun. After such implementation, Developer
may be foreclosed from other choices it may have had to utilize the
Property and provide for other benefits. Developer has invested
significant time and resources and performed extensive planning and
processing of the Project in agreeing to the terms of this
Agreement and will be investing even more substantial time and
resources in implementing the Project in reliance upon the terms of
this Agreement, and it is not possible to determine the sum of
money which would adequately compensate Developer for such efforts.
For the above reasons, City and Developer agree that damages would
not be an adequate remedy if City fails to carry out its
obligations under this Agreement. Therefore, specific performance
of this Agreement is the only remedy which would compensate
Developer if City fails to carry out its obligations under this
Agreement, and City hereby agrees that Developer shall be entitled
to specific performance in the event of a default by City
hereunder. Notwithstanding the foregoing, nothing in this
° Agreement is intended to deprive Developer from recovering
appropriate damages in the event that the terms of this Agreement
are breached. City and Developer acknowledge that, if Developer
fails to carry out its obligations under this Agreement, City shall
have the right to refuse to issue any permits or other approvals
which Developer would not otherwise have been entitled to pursuant
to this Agreement. Therefore, City's remedy of terminating this
Agreement shall be sufficient in most circumstances if Developer
fails to carry out its obligations hereunder. Notwithstanding the
foregoing, if City issues a permit or other approval pursuant to
this Agreement in reliance upon a specified condition being
satisfied by Developer in the future, and if Developer then fails
to satisfy such condition, City shall be entitled to specific
performance for the sole purpose of causing Developer to satisfy
such condition. The City' s right of specific performance shall be
limited to those circumstances set forth above, and City shall have
no right to seek specific performance to cause Developer to
otherwise proceed with the development of the Project in any
manner.
17. Institution of Legal Action. In addition to any other
rights or remedies, either party may institute legal action to
cure, correct or remedy any default, to enforce any covenants or
agreements herein, to enjoin any threatened or attempted violation
hereof, to recover damages for any default, or to obtain any other
remedies consistent with the purpose of this Agreement. Any such
legal action shall be brought in the Superior Court for San
Bernardino County, California.
°
10/RW286101R1DEVELOP.AGM 9
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18 . Waivers and Delays .
18 . 1 Waiver. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by
the other party, and failure by a party to exercise its rights upon
a default by the other party hereto, shall not constitute a waiver
of such party' s right to demand strict compliance by such other
party in the future.
18 .2 Third Parties. Nonperformance shall not be excused
because of a failure of a third person except as provided in
Section 18 .3 below.
18 .3 Force Majeure. Neither party shall be deemed to be
in default or failure or delay in performance of any of its
obligations under this Agreement if caused by floods, earthquakes,
other Acts of God, fires, wars, riots or similar hostilities,
strikes, other labor difficulties, government regulations or other
causes beyond either of the parties' control . If any such event
shall occur, the term of this Agreement and the time for
performance by Developer of any of its obligations hereunder or
pursuant to the Development Plan shall be extended by the period of
time that such events prevent a construction of the Project.
19 . Notices. All notices required or provided for under this
Agreement shall be in writing and delivered in person and deposited
in the United States mail, postage prepaid and addressed as
follows:
TO CITY: City of San Bernardino
300 N. "D" Street - 6th Floor
San Bernardino, California 92418
Attn: Director of Development
TO DEVELOPER: Fontana Corners III
1875 Century Park East
Suite 1880
Los Angeles, CA 90067
Attn: Mazen Habiby
Either party may change the address stated herein by giving notice,
in writing, to the other party and thereafter notices shall be
addressed and submitted to the new address.
20. Attorney' s Fees. If legal action is brought by either
party against the other for breach of this Agreement, or to compel
performance under this Agreement, the prevailing party shall be
entitled to an award of reasonable attorneys' fees and costs.
21. Transfers and Assignments.
21.1 Right to Assign. Developer shall have the right to
sell, assign or transfer this Agreement, and any and all of its
rights, duties and obligations hereunder, to any person or entity
at any time during the term of this Agreement, provided, however,
in no event shall the rights, duties and obligations conferred upon
Developer pursuant to this Agreement be at any time so transferred
or assigned except through a transfer of an interest of Developer
in the Property, or portion thereof, so transferred. In the event
of any such assignment, either the transferee or Developer shall be
liable for the performance of all obligations of Developer. Such
transferee or Developer shall notify City in writing of the
transfer of such obligations within thirty (30) days of the
effective date of the transfer.
21.2 Release Upon Transfer. Upon the sale, transfer or
assignment of Developer' s rights and interest under this Agreement
as permitted pursuant to Section 21.1, Developer shall be released
from its obligations under this Agreement and all of owner' s
obligations pursuant to the Development Plan, or other agreements
assumed by transferee with respect to the Property, or portion
thereof, so transferred provided that: (a) Developer is not then in
default under the Agreement; (b) Developer or transferee has
10/R\A286\01 R\DEVELOP.AGM 10
provided the City notice of such transfer; and (c) the transferee
executes and delivers to City a written agreement in which: (i) the
name and address of the transferee is set forth; and (ii) the
transferee expressly and unconditionally assumes all of the
obligations of Developer under this Agreement with respect to the
Property, or a portion thereof, so transferred.
Notwithstanding Section 5 and Section 21. 1 of this
Agreement, in the event that any person or entity ( "Property
Purchaser" ) , purchases a portion of the Property (the "Purchased
Parcel" ) and the Property Purchaser and the City execute and record
a development agreement pertaining to the Purchased Parcel, then at
the time when such development agreement is recorded, this
Agreement shall cease to apply to the Purchased Parcel and the
owner of the Purchased Parcel, as such, shall have no rights or
obligations under this Agreement, and Developer hereunder shall be
released from its obligations under this Agreement with respect to
the Purchased Parcel as provided in this Section 21.2 but without
any requirement to satisfy the conditions set forth in Section
21.2 (a) , (b) and (c) .
22 . Cooperation in the Event of Legal Challenge. In the
event of any legal action instituted by a third party or other
governmental entity or official challenging the validity of any
provision of this Agreement, the parties hereby agree to cooperate
in defending such action. Each party shall pay its own expenses in
connection with such defense. In the event of any litigation
challenging the effectiveness of this Agreement, or any portion
hereof, this Agreement shall remain in full force and effect while
such litigation, including any appellate review, is pending.
23 . Eminent Domain. No provision of his Agreement shall be
construed to limit or restrict the exercise by City of its power of
eminent domain.
24 . Authority to Execute. The person or persons executing
this Agreement on behalf of Developer warrant and represent that
they have the authority to execute this Agreement on behalf of
their corporation, partnership or business entity and warrant and
represent that they have the authority to bind Developer to the
performance of its obligations hereunder.
25 . Recordation. This Agreement and any amendment or
cancellation hereto shall be recorded in the Office of Official
Records of the County of San Bernardino, by the City Clerk within
the period required by Section 65868 .5 of the Government Code.
26. Protection of Mortgage Holders. Developer and City agree
that this Agreement shall not prevent or limit Developer, in any
manner, at Developer' s sole discretion, from encumbering the
Property or any portion thereof or any improvement thereon by any
mortgage, deed of trust or other security device securing financing
with respect to the Property. City acknowledges that the lenders
providing such financing ( "Mortgagees" ) may require certain
Agreement interpretations and modifications and agrees upon
request, from time to time, to meet witli Developer and
representatives of such Mortgagees to negotiate in good faith any
such request for interpretation or modification. City will not
unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or
modification is consistent with the intent and purposes of this
Agreement. Any Mortgagee of all or any portion of the Property
shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of
this Agreement shall defeat, render invalid, diminish or
impair the lien of any mortgage on all or any portion of the
Property made in good faith and for value, unless otherwise
required by law.
(b) Any Mortgagee of a mortgage or deed of trust
encumbering all or any portion of the Property which has
submitted a request in writing to the City in the manner
10/R\A286\01 R\DEVELOP.AGM 11
specified herein for giving notices shall be entitled to
receive written notification from City of any default by
Developer in the performance of Developer' s obligations under
this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer
under the terms of this Agreement, City shall provide a copy
of that notice to the Mortgagee within ten (10) days of
sending the notice of default to Developer. The Mortgagee
shall have the right, but not the obligation, to cure the
default during the remaining cure period allowed such party
under this Agreement.
(d) Any Mortgagee who comes into possession of all or
any portion of the Property, pursuant to foreclosure of the
mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject
to the terms of this Agreement. Notwithstanding any other
provision of this Agreement to the contrary, no Mortgagee
shall have an obligation or duty under this Agreement to
perform any of Developer' s obligations or other affirmative
covenants of Developer hereunder, or to guarantee such
performance; provided, however, that to the extent that any
covenant to be performed by Developer is a condition precedent
to the performance of a covenant by City, the performance
thereof shall continue to be a condition precedent to City' s
performance hereunder, and further provided that any sale,
transfer or assignment by any Mortgagee in possession shall be
subject to the provisions of Section 21 of this Agreement.
27. Severability of Terms. If any term, provision, covenant
or condition of this Agreement shall be determined invalid, void or
unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not
rendered impractical to enforce.
28 . Subsequent Amendment to Authorizing Statute. This
Agreement has been entered into in reliance upon the provisions of
the Development Agreement Law in effect as of the Agreement Date.
Accordingly, to the extent the subsequent amendment to the
Government Code would affect the provisions of this Agreement, such
amendment shall not be applicable to the Agreement unless necessary
for this Agreement to be enforceable or unless this Agreement is
modified pursuant to the provisions set forth in the Agreement and
Government Code Section 65868 as in effect on the Agreement Date.
29 . Section Headings. All section headings and subheadings
are inserted for convenience only and shall not affect any
construction or interpretation of this Agreement.
30 . Incorporation of Recitals and Exhibits. Recitals A
through J and attached Exhibits "A" through IUD" are hereby
incorporated herein by this reference as though fully set forth.
31. Rules of Construction and Miscellaneous Terms.
31. 1 Gender. The singular includes the plural; the
masculine gender includes the feminine; "shall" is mandatory, "may"
is permissive.
31.2 Time of Essence. Time is of the essence regarding
each provision of this Agreement in which time is an element.
31.3 Cooperation. Each party covenants to take such
reasonable actions and execute all documents that may be necessary
to achieve the purposes and objectives of this Agreement.
32 . Effect on Title. Developer and City agree that this
Agreement shall not create an encumbrance on any portion of the
Property which is sold to an ultimate user of all or any portion of
the Property.
10/R\A286\O1R\DEVELOP.AGM 12
0 0
The parties have executed this Development Agreement on the
date and year first written above.
FONTANA CORNERS III, a
California limited partnership
By:
Its: General Partner
"Developer"
CITY OF SAN BERNARDINO,
a municipal corporation
By:
W.R. Holcomb, Mayor
"City"
Signed and Certified that a copy
of this document has been delivered
to the City Administrator of the City
By:
Rachel Clark, City Clerk
Approved as to form and legal content:
James F. Penman,
City Attorney:
By:
10/RW286\01R\DEVEL0P.AGM 13
STATE OF CALIFORNIA )
. ss.
COUNTY OF }
On this day of 199_, before me,
a Notary Public in and for said County and State,
personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the
General Partner of FONTANA CORNERS III, a California limited
partnership, the partnership that executed the within instrument
and acknowledged to me that said partnership executed it .
Notary Public in and for said
County and State
STATE OF CALIFORNIA )
. ss.
COUNTY OF SAN BERNARDINO )
On this day of 199_, before me,
, a Notary Public in and for said County
and State, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed this instrument as City Administrator
of the City of San Bernardino and acknowledged to me that the City
of San Bernardino executed it.
WITNESS my hand and official seal .
Notary Public in and for said
County and State
10/R\A286\01R\DEVEL0P.AGM 14
LEGAL DESCRIPTION OF PROPERTY
All that certain real property located in the City of San
Bernardino, County of San Bernardino, State of California,
described as follows :
PARCEL NO. 1 :
THAT PORTION OF SECTIONS 4, 5, 8 AND 9 , TOWNSHIP 1 NORTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS THE LINES OF THE GOVERNMENT
SURVEY MAY BE EXTENDED ACROSS THE MUSCUPIABE RANCHO, DESCRIBED AS
FOLLOWS:
BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE,
ACCORDING TO THE PERRIN SURVEY, AT NORTH 89 DEG. 03 ' WEST, 516 .9
FEET FROM CORNER NO. 28; THENCE SOUTH 22 DEG. 36' WEST, 626 . 13 FEET
TO CORNER NO. 2 ; THENCE SOUTH 41 DEG. 08' WEST, 241.56 FEET TO
CORNER NO. 3 ; THENCE SOUTH 10 DEG. 58' EAST, 127. 05 FEET TO CORNER
NO. 4; THENCE SOUTH 41 DEG. 09 ' WEST, 283 .26 FEET TO CORNER NO. 5;
THENCE SOUTH 16 DEG. 19 ' WEST, 735 . 98 FEET TO CORNER NO. 6; THENCE
WEST 374 . 00 FEET TO CORNER NO. 7; THENCE NORTH 1823 .2 FEET TO
CORNER NO. 8 ON LINE 27-28 MUSCUPIABE RANCHO; THENCE SOUTH 89 DEG.
03 ' EAST, 1142 . 6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER
NO. 1, THE PLACE OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LAND CONVEYED TO C.F. MARTIN
BY DEED DATED DECEMBER 8, 1921 AND RECORDED FEBRUARY 22, 1922 , IN
BOOK 740, PAGE 199, OF DEEDS; THENCE NORTH 89 DEG. 53' EAST ALONG
THE SOUTH LINE OF SAID MARTIN LAND, 374 . 0 FEET TO THE SOUTHEAST
CORNER OF SAID MARTIN LAND; THENCE NORTH 16 DEG. 12 ' EAST ALONG THE
EAST LINE OF SAID MARTIN LAND, 291 . 68 FEET; THENCE SOUTH 67 DEG.
12 ' WEST, 345 . 0 FEET; THENCE SOUTH 52 DEG. 03 ' WEST, 174 .27 FEET TO
A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 0 DEG.
07' EAST ALONG SAID WEST LINE, 40 . 0 FEET TO THE POINT OF BEGINNING.
PARCEL NO. 2 :
GOVERNMENT LOT 16 AND THAT PORTION OF GOVERNMENT LOTS 14 AND 15,
SECTION 5, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT TOWNSHIP PLAT THEREOF,
APPROVED BY THE SURVEYOR GENERAL ON JUNE 24, 1898, DESCRIBED AS
FOLLOWS :
COMMENCING AT MONUMENT NO. 27 OF THE MUSCUPIABE RANCHO, SAID
MONUMENT BEING THE SOUTHWESTERLY CORNER OF SAID GOVERNMENT LOT 14 ;
THENCE NORTH 58 DEG. 14' 40" EAST, 1035 .33 FEET TO THE TRUE POINT
OF BEGINNING; THENCE NORTH 82 DEG. 11' 40" EAST, 720 . 00 FEET;
THENCE NORTH 0 DEG. 08' EAST, 456 FEET, MORE OR LESS, TO THE NORTH
LINE OF SAID GOVERNMENT LOT 15; THENCE EASTERLY ALONG THE NORTH
LINE OF SAID GOVERNMENT LOTS 15 AND 16, 1938 FEET, MORE OR LESS, TO
THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 16; THENCE SOUTHERLY
ALONG THE EAST LINE OF SAID GOVERNMENT LOT 16, 1093 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID GOVERNMENT LOT 16, SAID
CORNER BEING ON THE SAID MUSCUPIABE RANCHO LINE; THENCE NORTH 89
DEG. WEST ALONG THE SOUTH LINE OF SAID GOVERNMENT LOTS 16, 15 AND
14, AND ALONG THE MUSCUPIABE RANCHO LINE, 2684 FEET, MORE OR LESS,
TO A POINT, SAID POINT BEING SOUTH 89 DEG. EAST, 883 .9 FEET FROM
SAID MONUMENT NO 27 OF RANCHO MUSCUPIABE; THENCE NORTH 0 DEG. 21'
WEST, 560 .34 FEET TO THE POINT OF BEGINNING.
PARCEL NO. 3 •
THE NORTH 1/2 OF THE SOUTHWEST 1/4, AND THE SOUTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
(EXHIBIT "All ) (Page 1 of 3)
10/R\A286\01 R\DEVELOP.AGM
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24 , 1898 .
PARCEL NO. 4 :
GOVERNMENT LOT 5 , SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898 .
PARCEL NO. 5 :
THAT PORTION OF SECTIONS 4, 5 , 8 AND 9 , TOWNSHIP 1 NORTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS THE LINES OF THE GOVERNMENT
SURVEY MAY BE EXTENDED ACROSS THE MUSCUPIABE RANCHO, DESCRIBED AS
FOLLOWS :
BEGINNING AT CORNER NO. 1 ON LINE 27-28 RANCHO MUSCUPIABE,
ACCORDING TO THE PERRIN SURVEY, AT NORTH 89 DEG. 03 ' WEST, 516 .9
FEET FROM CORNER NO. 28; THENCE SOUTH 22 DEG. 36' WEST, 626 . 13 FEET
TO CORNER NO. 2 ; THENCE SOUTH 41 DEG. 08' WEST, 241.56 FEET TO
CORNER NO. 3 ; THENCE SOUTH 10 DEG. 58' EAST, 127 . 05 FEET TO CORNER
NO. 4; THENCE SOUTH 41 DEG. 09 ' WEST, 283 .26 FEET TO CORNER NO. 5;
THENCE SOUTH 16 DEG. 19' WEST, 735 .98 FEET TO CORNER NO. 6; THENCE
WEST 374 . 00 FEET TO CORNER NO. 7; THENCE NORTH 1823 .2 FEET TO
CORNER NO. 8 ON LINE 27-28 MUSCUPIABE RANCHO; THENCE SOUTH 89 DEG.
03 ' EAST, 1142 . 6 FEET ALONG LINE 27-28 MUSCUPIABE RANCHO TO CORNER
NO. 1, THE PLACE OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS :
BEGINNING AT THE SOUTHWEST CORNER OF LAND CONVEYED TO C.F. MARTIN
BY DEED DATED DECEMBER 8, 1921 AND RECORDED FEBRUARY 22 , 1922, IN
BOOK 740, PAGE 199 , OF DEEDS; THENCE NORTH 89 DEG. 53 ' EAST ALONG
THE SOUTH LINE OF SAID MARTIN LAND, 374 . 0 FEET TO THE SOUTHEAST
CORNER OF SAID MARTIN LAND; THENCE NORTH 16 DEG. 12' EAST ALONG THE
EAST LINE OF SAID MARTIN LAND, 291. 68 FEET; THENCE SOUTH 67 DEG.
12 ' WEST, 345 . 0 FEET; THENCE SOUTH 52 DEG. 03 ' WEST, 174 .27 FEET TO
A POINT ON THE WEST LINE OF SAID MARTIN LAND; THENCE SOUTH 0 DEG.
07' EAST ALONG SAID WEST LINE, 40 . 0 FEET TO THE POINT OF BEGINNING.
PARCEL NO. 6 :
GOVERNMENT LOT 16 AND THAT PORTION OF GOVERNMENT LOTS 14 AND 15 ,
SECTION 5, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT TOWNSHIP PLAT THEREOF,
APPROVED BY THE SURVEYOR GENERAL ON JUNE 24, 1898, DESCRIBED AS
FOLLOWS:
COMMENCING AT MONUMENT NO. 27 OF THE MUSCUPIABE RANCHO, SAID
MONUMENT BEING THE SOUTHWESTERLY CORNER OF SAID GOVERNMENT LOT 14;
THENCE NORTH 58 DEG. 14' 40" EAST, 1035 .33 FEET TO THE TRUE POINT
OF BEGINNING; THENCE NORTH 82 DEG. 11' 40" EAST, 720 . 00 FEET;
THENCE NORTH 0 DEG. 08' EAST, 456 FEET, MORE OR LESS, TO THE NORTH
LINE OF SAID GOVERNMENT LOT 15; THENCE EASTERLY ALONG THE NORTH
LINE OF SAID GOVERNMENT LOTS 15 AND 16, 1938 FEET, MORE OR LESS, TO
THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 16; THENCE SOUTHERLY
ALONG THE EAST LINE OF SAID GOVERNMENT LOT 16, 1093 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID GOVERNMENT LOT 16, SAID
CORNER BEING ON THE SAID MUSCUPIABE RANCHO LINE; THENCE NORTH 89
DEG. WEST ALONG THE SOUTH LINE OF SAID GOVERNMENT LOTS 16, 15 AND
14, AND ALONG THE MUSCUPIABE RANCHO LINE, 2684 FEET, MORE OR LESS,
TO A POINT, SAID POINT BEING SOUTH 89 DEG. EAST, 883 . 9 FEET FROM
SAID MONUMENT NO. 27 OF RANCHO MUSCUPIABE; THENCE NORTH 0 DEG. 21'
WEST, 560 .34 FEET TO THE POINT OF BEGINNING.
(EXHIBIT "All) (Page 2 of 3)
10/R\A286\01 R\DEVELOP.AGM
PARCEL NO. 7 :
THE NORTH 1/2 OF THE SOUTHWEST 1/4, AND THE SOUTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 4 , TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898 .
PARCEL NO. 8 :
GOVERNMENT LOT 5, SECTION 4, TOWNSHIP 1 NORTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND
APPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1898 .
(EXHIBIT "A" ) (Page 3 of 3)
10/R\A286\01 R\DEV ELOP.AGM
V
STANDARDS AND SPECIFICATIONS FOR
DEVELOPMENT OF THE PROPERTY: PARADISE HILLS SPECIFIC PLAN
THAT CERTAIN SPECIFIC PLAN, COMMONLY KNOWN AS THE
"PARADISE HILLS SPECIFIC PLAN" , ADOPTED BY THE CITY ON
199_ PURSUANT TO CALIFORNIA
COVENANT TO THE SECTION 65450, ET. SEQ.
(EXHIBIT "B") (Page 1 of 1)
10/R\A286\01 R\DE VELOP.AGM
SCHEDULE OF APPLICABLE FEES
1. All building permits and plan check fees, including, but not
limited to, electrical, mechanical, grading, plumbing and
miscellaneous fees.
2 . Land use application fees, including but not limited to,
Tentative Tracts, Parcel Maps, Precise Plan of Design and,
Environmental Review fees.
3 . Public Works Department review fees, including but not limited
to, street improvement plans, improvement inspection fees,
encroachment permits, and map review fees.
4 . Sign permit review fees.
(EXHIBIT "C") (Page 1 of _)
10/R\A286\01 R\DEVELOP.AGM
C
REIMBURSEMENT AGREEMENT FOR CONSTRUCTION
OF PUBLIC IMPROVEMENTS
THIS AGREEMENT ( "Agreement" ) is made this day of
, 1993 by and between the City of San Bernardino, a
municipal corporation (the "City") , and Fontana Corners, III, a
California limited partnership (hereinafter referred to as
"Developer") .
RECITALS
A. Developer owns approximately 404 acres of real property
located within the City (the "Developer' s Property") , more
particularly described on Exhibit "A" attached hereto and
incorporated herein by reference.
B. City has adopted the San Bernardino Development Code (the
"Code") establishing various development impact fees to offset the
cost of development of City infrastructure.
C. As a condition to the approval of a development agreement
between Developer and the City (the "DA" ) , City has required
Developer to design, construct and install certain public
facilities to serve Developer' s Property and other properties (the
"Improvements") . The Improvements are identified in the Specific
Plan adopted as part of the Project (as such term is defined in the
DA) .
D. The DA provides that engineering benefit zone studies
(collectively the "EBZ Study") will be done by City at Developer' s
cost to determine which of the Improvements benefit property in
addition to Developer' s Property (the "Benefitting Properties") .
City agrees to reimburse Developer for the pro rata share of the
costs of those Improvements that also benefit other properties
(collectively the "Facilities") . The amount of the reimbursement
will be determined by the EBZ Study and will be made from funds
collected by City from the owners or developers of the Benefitting
Properties.
E. Developer is willing to advance the costs of designing,
constructing, installing and inspecting the Reimbursable Facilities
subject to reimbursement from the Benefitting Properties.
(EXHIBIT "D" ) (Page 1 of 9)
10/R\A286\O1 R\DEVELOP.AGM
TERMS
A. Design and Construction of Improvements .
Pursuant to the provisions of the DA, including the
timing set forth therein, Developer shall be responsible for
designing, constructing, installing and providing for the
inspection of the Improvements. The plans and specifications for
the work shall be approved by City prior to construction, and the
design, construction and installation of the Improvements shall be
to the satisfaction of City in its sole and reasonably exercised
discretion.
B. Source and Method of Reimbursement: Maximum
Reimbursement.
1. City shall reimburse Developer for the costs,
including an amount attributable to interest computed at the then
existing Bank of America' s Reference Rate upon the outstanding
costs incurred, associated with the design, construction,
installation and inspection of the Facilities, in an amount
determined by the EBZ Study: (a) from then-available development
impact fees collected pursuant to the Code from subsequent
developers of Benefitting Properties; (b) from the proceeds of any
community facilities district or assessment district formed, in
part, to pay the same; or (c) from other fees that City may impose
upon any developers of the Benefitting Properties (the
"Reimbursement Funds") . City shall exercise its police power to
the maximum lawful extent to collect fees for the pro rata share of
the costs for the Reimbursable Improvements as determined by the
EBZ Study, including enactment of new ordinances if necessary.
Reimbursement shall be from the Reimbursement Funds and from no
other source.
2 . The total amount of the reimbursement obligation
over the life of this Agreement shall be as determined in the EBZ
Study.
3 . City shall disburse reimbursements due to Developer
under this Agreement semi-annually from the Reimbursement Funds
collected from developers of Benefitting Properties as provided in
(EXHIBIT I'D,' ) (Page 2 of 9)
10/R\A286\O1 R\DEVELOP.AGM
this Agreement . The first reimbursement shall occur no later than
6 months following City' s formal acceptance of the Improvements.
C. Term of Reimbursement Obligation.
City' s obligation, under this Agreement, to reimburse
Developer for the Facilities shall continue for a period of thirty
(30) years from the date of the DA, unless the obligation is sooner
satisfied by payment in full of all reimbursable amounts due and
owing to Developer under this Agreement. After such thirty-year
period or payment in full, whichever occurs first, the
reimbursement process shall cease.
D. Bids and Contracts .
Developer shall be solely responsible for securing
appropriate bids and awarding the contract for construction and
installation of the Improvements in compliance with all applicable
federal and state laws. Developer shall defend, indemnify and hold
City, its elected officials, officers, agents and employees free
and harmless from any and all claims, actions or liability
whatsoever, including attorney' s fees and court costs, arising out
of or in connection with Developer' s construction of the
Improvements.
E. Inspection.
City shall have the right at all times to inspect the
construction of the Improvements to measure compliance with City
plans and specifications.
F. Indemnification: Insurance.
1. Developer shall defend, indemnify and hold City, its
elected officials, officers, employees and agents free and harmless
from any and all liability from loss, damage, or injury to or death
of persons or property in any manner arising out of or incident to
Developer' s performance of this Agreement, including without
limitation all consequential damages, attorney' s fees and court
costs, resulting from the negligence of Developer or Developer' s
agents. This indemnity shall extend to any claims arising because
Developer has failed to properly secure any necessary easements,
land rights, contracts, or approvals, but shall not extend to any
claims arising out of the negligence of City.
(EXHIBIT I'D" ) (Page 3 of 9)
10/R\A286\01 R\DEVELOP.AGM
2 . Developer shall require all persons doing work on
the Improvements, including their contractors and subcontractors,
to obtain and maintain insurance of the types and in the amounts
described below in a form and with carriers satisfactory to City.
a. Commercial General Liability Insurance.
Occurrence version commercial general liability insurance or
equivalent form with a limit of not less than $1, 000, 000 . 00 each
occurrence shall be maintained. If such insurance contains a
general aggregate limit, it shall apply separately to this
Agreement or be no less than two times the occurrence limit. Such
insurance shall :
i. Name City, its elected officials,
officers, employees and agents as insureds with respect to
performance of this Agreement. The coverage shall contain no
special limitations on the scope of its protection afforded to the
above-listed insureds.
ii. Be primary with respect to any insurance
or self insurance programs covering City, its elected officials,
officers, employees and agents.
iii. Contain standard separation of insureds
provisions.
b. Business Automobile Liability Insurance.
Business automobile liability insurance or equivalent form with a
limit of not less than $500, 000 . 00 each accident shall be
maintained. Such insurance shall include coverage for owned, hired
and non-owned automobiles.
C. Workers' Compensation Insurance. Workers'
compensation insurance with statutory limits and employers'
liability insurance with limits of not less than $1, 000, 000. 00 each
accident shall be maintained.
d. Other Insurance Requirements. Developer shall :
i. Prior to taking any actions under this
Agreement, furnish City with properly executed certificates of
insurance which shall clearly evidence all insurance required in
this Section and provide that such insurance shall not be canceled,
(EXHIBIT "D" )
(Page 4 of 9)
101RW286101 R\DEVELOP.AGM
allowed to expire or be materially reduced in coverage except on
forty-five (45) days, prior written notice to City.
ii. Provide to City certified copies of
endorsements, and policies if requested by City, and properly
executed certificates of insurance evidencing the insurance
required herein.
iii. 'Replace or require the replacement of
certificates, policies and endorsements for any insurance required
herein expiring prior to completion and acceptance of the
Improvements .
iv. Require to be maintained all insurance
required herein from the time of execution of this Agreement until
the acceptance of the Improvements .
V. Require the placement of all insurance
required herein with insurers licensed to do business in
California.
G. Commencement of Construction and Inspection.
Developer and its contractors and subcontractors shall
not commence construction of any Improvements until Developer has
received written authorization from City to proceed. All work
performed on the Improvements shall be done in substantial
compliance with City-approved plans, specifications and contract
documents and in a good and workmanlike manner. All work performed
by Developer, its contractors and subcontractors to construct the
Improvements shall be subject to inspection by City, and Developer
shall require its employees, contractors and agents to comply with
all instructions given by City during construction of the
Improvements . All fees and costs to construct the Improvements
shall be borne solely by Developer, subject to reimbursement as
provided herein. Inspection by City or its employees or agents
shall not relieve Developer of its liability, if any, for design
defects or improper or inadequate workmanship.
H. Compliance with Applicable Laws.
Developer shall require that all work performed on the
Improvements is performed in a manner which complies with all
applicable federal, state, county and local government laws,
(EXHIBIT °D°) (Page 5 of 9)
10WA286\O1 R\DEV ELOP.AGM
regulations and rules, including all rules and regulations of City,
as these rules and regulations may be modified or changed from time
to time.
I . Prevailing Wages .
Developer is aware of the requirements of California
Labor Code Sections 1770 et sea. , which would require the payment
of prevailing wage rates and the performance of other requirements
if it were determined that Developer' s contracts with its
contractor (s) to construct the Improvements were a public works
contract as defined in Sections 1720 and 1720 .2 of the California
Labor Code. The parties hereto agree, however, that: (i) to the
maximum extent permitted by law, Developer' s contracts with its
subcontractors shall not be deemed "public works contracts" as
defined in the California Labor Code; and (ii) none of the parties
hereto shall take a position inconsistent with the foregoing
treatment of Developer' s contracts. Developer agrees to hold City
and its elected officials, officers, employees and agents harmless
from any claim or liability including, without limitation,
attorneys' fees and court costs, arising from any failure or
alleged failure to comply with these provisions of the California
Labor Code.
J. Contractor Licenses.
All work performed on the Improvements shall be done only
by contractors licensed in the State of California and qualified to
perform the type of work required.
K. Acceptance of Work.
Upon completion of the Improvements to the satisfaction
of City, the Improvements shall be presented to the San Bernardino
City Council for dedication and acceptance, and for authorization
to file a Notice of Completion. The City Council may accept the
Improvements if it determines that the Improvements were
constructed in accordance with the approved plans, specifications
and contract documents, that they operate satisfactorily, and that
all other requirements of this Agreement have been satisfied. Upon
acceptance of the improvements, Developer shall assign to City all
of Developer' s rights and remedies, including warranties, as set
(EXHIBIT IUD" ) (Page 6 of 9)
10/R\A286\01 R\DEVELOP.AGM
forth in the approved contract documents, and thereafter City shall
have the same recourse under said contract documents that City
would have had if City itself had engaged Developer' s contractor to
construct the Improvements .
L. Liability for Work Prior to Formal Acceptance.
Until the City Council has formally accepted the
Improvements, Developer shall be solely responsible for all damage
to the work caused by or arising out of Developer' s or its
contractor' s or subcontractor' s negligence and for all damages or
injuries to any person or property at the work site caused by or
arising out of Developer' s or its contractor' s or subcontractor' s
negligence, except damage or injury due to the negligence of City,
its agents or employees .
M. Guarantee.
Developer shall require its contractor (s) to provide one
or more bonds, in forn; and content acceptable to City, to guarantee
all work and materials for the Improvements to be free from all
defects due to faulty materials or workmanship for a period of one
(1) year after the date of formal acceptance of the work by City.
N. Record Drawings .
Prior to acceptance of the Improvements by the City
Council, Developer shall provide City with three (3) copies of
record drawings with certification by a licensed engineer in the
State of California as to accuracy and completeness. Developer' s
contractor (s) shall be solely responsible and liable for insuring
the completeness and accuracy of the record drawings.
0. Ownership of the Improvements .
From and after acceptance of the Improvements by formal
action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
P. Approval of Improvement Costs .
Upon completion and final acceptance of the Improvements
by formal action of the City Council, Developer shall, within
thirty (30) days, provide City with an itemized bill showing all
reasonable costs, including an amount attributable to interest at
the Bank of America' s Reference Rate, incurred by Developer to
(EXHIBIT "D" ) (Page 7 of 9)
1 O/R\A286\O1 R\DEV ELOP.AGM
design, construct and install the Improvements . Such reasonable
costs shall be limited to costs of acquiring necessary land and
easements not currently owned by Developer, permit fees, and costs
directly and necessarily related to the design, construction and
installation of the Improvements . Developer agrees to provide City
with bills evidencing costs incurred. Developer also agrees to
provide City with any additional information as to any items shown
on the cost bill as requested by City to substantiate the costs .
Following completion of its analysis, City shall advise Developer,
in writing, of any fees or costs shown on the cost bill which City
will disallow and the reasons why these items are being disallowed
by City. Only those costs approved by City, in its reasonably
exercised discretion, will be allowed for reimbursement in
accordance with this Agreement .
Q. Notice.
Any notices required or desired to be sent pursuant to
this Agreement shall be addressed as follows :
Citv Developer
City of San Bernardino Fontana Corners III
300 North "D" Street, 1875 Century Park East,
6th Floor Suite 1880
San Bernardino, CA 92418 Los Angeles, CA 90067
Attn: Director of Development Attn: Mazen Habiby
R. Amendment.
This Reimbursement Agreement may be amended by the
parties hereto. Such amendment or amendments shall not require an
amendment to the DA.
S . Attorney' s Fees .
In the event any action is commenced to enforce or
interpret any term or condition of this Agreement, in addition to
costs and any other relief, the prevailing party shall be entitled
to reasonable attorney' s fees.
T. Entire Agreement .
This Agreement contains the entire agreement of the
parties hereto with respect to the matters contained herein.
(EXHIBIT "D" ) (Page 8 of 9)
1 O/R\A286\01 R\DEVELOP.AGM
U. Assignment .
This Agreement shall not be assigned without the written
consent of the parties hereto, and any assignment without such
written consent shall be void and ineffective.
V. Time of Essence.
Time is of the essence of this Agreement .
FONTANA CORNERS III, a
California limited partnership
By:
Its: General Partner
"Developer"
CITY OF SAN BERNARDINO,
a municipal corporation
By:
W.R. Holcomb, Mayor
"City"
Signed and Certified that a copy
of this document has been delivered
to the City Administrator of the City
By:
Rachel Clark, City Clerk
Approved as to form and legal content:
James F. Penman,
City Attorney:
By:
(EXHIBIT "D" ) (Page 9 of 9)
10/R\A286\01 R\DEV ELOP.AGM