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HomeMy WebLinkAbout41- Planning and building Services CITY OF SAN BERT ,ARDINO - REQUEST eOR COUNCIL ACTION From: Al Boughey, Director Subject: Paradise Hills Specific Plan (Specific Plan 90-03, General Dept: Planning and Building Services Plan Amendment 91-07 and Development Agreement 91-03 Date: February 8, 1993 Synopsis of Previous Council action: February 1, 1993, the Mayor and Common Council continued hearing until February 15, 1993 to allow Councilman Minor to attend the hearing. Recommended 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 March 22, 1993 for final action, pending completion of revisions. Signs ure Contact persons 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: Agenda Item No. 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 BACKGROUND: The staff report was previously circulated for the February 1, 1993 meeting of the Mayor and Common Council, and has not changed with the exception of a revised recommended motion included below. COMMENTS RECEIVED: All comments .received outside the public review period and at the Planning Commission hearings were addressed and included in the Planning Commission Staff Reports (Exhibit A) , with the exception of the one. Ms. Leona Klippstein, President of Friends of the Foothills commented on the Final EIR in a letter dated July 15, 1992 . Ms. Klippstein's letter and the City responses to her letter were inadvertently left out of the previous Planning Commission Staff Reports.- The responses have been updated to reflect the content of Appendix G to the Final EIR, prepared. Both Ms. Klippstein's comments and the City's response to those comments have been included as Exhibit J and are attached hereto. STAFF RECOMMENDATION: 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 March 22, 1993 for final action, pending completion of revisions. Exhibit "J" - Friends of Foothills Comments on Paradise Hills FEIR and City Responses to those Comments FRiENds OF FIE FoOTWLS =0 P.O. Box 005 AITAdENA CAWORMA 91003-005 July 15, 1992 Certified hail P 998 274 538 Mr. Michael Finn, Planner Regional Planning Commission City of San Bernardino 300 North "D" Street San Bernardino, California 92418 re: Paradise Hills Specific Plan, Final JUL D 171992 Specific Plan Number 90-03 CITY Uf SA.I "'te„��J,rJo General Plan Amendment Number 91-07 DEPARTMENT OF PLANNING & Development Agreement Number 91-03 BUILDrNG SERVICES State Clearinghouse Number 91 01 20 55 Dear Mr. Finn: This letter will confirm our telephone conversations and meeting of July 8, 1992. I hereby request that this letter be made part of the administrative record for this proposed development and any other projects that may impact this site. I am the President of Friends of the Foothills, a California nonprofit public benefit corporation. I am also grassroots coordinator for San Bernardino Sagefriends. I thank you for this opportunity to comment and for your consideration of concerns and recommendations. Alluvial fan associated sage scrub, coastal and riversidean, has been designated as one of the rarest plant communities in the state by the California Department of Fish and Game ("CDFG") , and United States Fish & Wildlife Service ("USFWS") . Please review enclosed copies of reference getters by CDFG and USFWS, dated 6/30/92 and 3/13/92 respectively. The California Diversity Database designated alluvial sage scrub B1. 1 "a rare and unique plant community with a high priority for protection" in 1987. The California Environmental Quality Act ("CEQA") Guidelines section 15125, states that "special emphasis should be placed on environmental resources that are rare and unique to that region. " The above-referenced project FEIR fails to adequately address alluvial, riversidean and coastal sage scrub as rare and unique. The FEIR fails to mitigate for the significant loss, direct, indirect and cumulative impacts, including fuel modifications and O hydrology. As you know, CDFG contends that compensation for the loss of this habitat should reflect a replacement ratio of 2:1. Exhibit "J" C July 15, 1992 Page Two The FEIR fails to adequately disclose the impacts associated O with fuel modification, and fails to reconcile conflicts between 2 fuel modification requirements and biological resource mitigation measures. The proposed project FEIR fails to respond to CEQA Guidelines section 15206(2) , "a project has the potential for causing significant effects on the environment extending beyond the city or county in which the project would be located. " And CEQA Guidelines section 15130(b) (1) (A) , and the CDFG Public Resources Code section 21153 "a complete assessment of flora and fauna within and adjacent to the project area, with emphasis upon O sensitive and critical habitats" and "a discussion of direct, indirect, and cumulative impacts expected to adversely affect biological resources with specific measures to offset such impacts" and "there should be a discussion of alternatives to not only minimize adverse impacts to wildlife but also to include direct benefit to wildlife and wildlife habitat." Over over 250 species awaiting listing in the State of California as threatened or endangered, 70 of these species may be found in the coastal sage scrub related habitat. Please review the enclosed list of sensitive species. Three ESA section 20 "threatened- species" means any species which is likely to become an endangered species within the :foreseeable future throughout all or a significant portion of its :range. Title 16 United States Code section 480 states "habitat" ;means a place where the physical and biological elements of ecosystems provide a suitable environment and the food, cover and space resources needed for plant and animal livelihood (see section 2605 Forest Service Manual) . Each "habitat", as a "place", may include elements of private, state and federal land, each with their respective _ jurisdictional responsibilities. Accordingly, the CDFG requires O that county planning assess the impacts of proposed projects on q habitats adjacent to the project and on national forest land. The Specific Plan would displace some wildlife and deplete their habitat. The result of this action is that some wildlife will relocate onto the San Bernardino National Forest, O immediately adjacent to the project site. This will burden the habitat capability on the Forest. Some animals that may be affected by this action include: deer, mountain lion, bear, great horned owl, southern California spotted owl, big horn sheep, coyote, golden eagle, raptors, arroyo toad, western spadefoot toad, western pond turtle, merlin, and the California red sided garter snake. Three ESA section 19 "the term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, PON t .July 15, 1992 Page Three rapture, or collect, or to attempt to engage in any such conduct. " This proposed development is a project site occupying habitats that encompass state and federal jurisdictional components, and elements of private, state and federal land. The FEIR before this honorable Commission fails to adequately define and assess these habitats as part of the National Forest ecosystem; see section 2603.1 Forest Service Manual. This proposed project is also subject to the National Environmental Policy Act ("NEPA") , which it fails to address pursuant to CEQA Guidelines sections 15220 and 15221. This proposed project fails to identify, address and respon to the direct, indirect, and cumulative impacts to golden eagles, raptors, migratory birds and endangered species. Loss of habitat, especially foraging habitat, has not been adequately O identified, assessed and mitigated for, and is a signficant impact. As you know, CDFG and CEQA require that biological :purveys be made in the spring, prior to EIR certification. In reference to the Forest and Rangeland Renewable Resources Planning Act of 1974, Title 16 United States Code section 1604, the proposed project is within the San Bernardino National Forest. The 1974 Act requires the Forest Service to have a five- phase program of monitoring and evaluation of impacts on lands adjacent to national forests. Have your city and project planners obtained these Evaluations from the San Bernardino National Forest Interdisciplinary Team? Is your City General Plan consistent with the San Bernardino O National Forest Land and Resources Management Plan? The proposed Specific Plan project FEIR fails to mitigate for and disclose substantial evidence of the significance of the biological corridors which this project site would fragment. As you may be aware, biological corridors provide avenues along which wide-ranging animals can travel, plants can propagate, genetic interchange can occur, populations can move in response to environmental changes and natural disasters, and threatened l0 species can be replenished from other areas. Alluvial, coastal and riversidean sage scrub requires periodic burning and flooding for its continued sustainability and propagation. Where an environmental resources is threatened, any incremental demand on this resource must be considered significant. Under CEQA, biological cumulative impacts must be clearly identified, topic by topic. The proposed project FEIR fails to respond to cumulative biological impacts. July 15, 1992 Page Four Proposed development on-site, in surrounding hillside regions would have an unmitigated significant effect on the required hydrology for the unique and rare alluvial sage scrub and riparian, wetland habitat which depends upon periodic flooding and surface sheet flow. The natural alluvial hydrology sustains "riparian habitat" on and adjacent to the project site. "Riparian habitat" means habitat related to or influenced by surface or subsurface waters, especially the margins of streams, lakes, ponds, wetlands, seeps, and ditches. Riparian habitat refers to the transition zone between aquatic and upland habitat. See section 2605 Forest Service Manual. Again, special emphasis should be placed on these riparian habitat values. The CDFG has a well known policy that there should be "no net loss of wetland acreage or habitat values." The proposed project is not in compliance with this policy, nor with Title 33 United States Code, the Clean Water Act. All hydrology studies must be done at the time of the EIR, please see Sundstrom v. County of Mendocino. The Administrative Procedure Act, Title 5 United States Code section 701 et seq. , and Title 2 United States Code section 706(2) (d) , require that an agency has "taken the required hard look at the environmental consequences of its decisions." This Q would also include geophysical escarpments, hydrology, wildlife/fuel modification, and visual impacts on national forest lands.. I recommend that the City adopt the "environmentally superior alternative" of no project, CEQA Guidelines section 15126 (d) . The City should prohibit development in 100-year floodplains. Any proposed development such as support facilities for parks or golf courses and their associated parking, should be evaluated in terms of the negative effect on groundwater recharge and potential flood damage. Concrete and asphalt block the absorption of water into alluvial deposits and accelerate runoff so it has less time to be absorbed. Though the majority of alluvial deposits lie in the 100-year floodplain, alluvial 14 deposits outside this boundary should be left underdeveloped. Not only do these deposits play a role in groundwater recharge and storage, alluvial deposits are also subject to liquefaction during earthquakes. During strong earthquakes, alluvial deposits literally liquefy. In the recent San Francisco earthquake, buildings constructed on alluvial deposits were among the structures that sustained the most damage. July 15, 1992 Page Five The FEIR fails to respond to CEQA Guidelines sections 15126 (a) and 15127 (c) "direct and indirect significant effects of IS the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects. " Thank you again for the opportunity to comment on this project. Very truly yours, LEEONA C. KLIPPSTEIN I,CK:hyt Enclosures • cc: USFWS (Mr. J. Hanlon) CDFG/Natural Heritage (Mr. G. Black) Endangered Habitats League (Mr. D. Silver) Forest Preservation Society (Mr. D. James) ' NCCP/Scientific Review Panel (Mr. D. Murphy) David Wheeler, Esq. Letter of Comment July 15, 1992 Leeona Klippstein, President, Friends of the Foothills Ms. Leeona Klippstein, called the City of San Bernardino on July 7, :1992 questioning the way the project biological assessment and EIR addressed the issue Riversidean Sage Scrub on the project site. On July 17, 1992 , the City received a formal letter of comment from Ms. Klippstein on the Paradise Hills Final Environmental Impact Report (FEIR) . Ms. Klippstein's comments on the Final EIR focus primarily on biological issues, which she perceives as missing from the FEIR document. Ms. Klippstein is correct in her assertions, but not in the way one would expect. The FEIR does not contain a complete discussion of biological issues and in and of itself, does not constitute the complete set of environmental documents for the Paradise Hills project. The complete set includes the Technical Appendices, the Draft Environmental Impact Report (DEIR) , and the Final Environmental Impact Report. However, concerns similar to those raised by Ms. Klippstein about the FEIR have been raised by the California Department of Fish and Game in their letters of July 30, 1992 and September 14, 1992 in regards to the Draft Environmental Impact Report (DEIR) . Issues or concerns raised in Ms. Klippstein's letter have been numbered for identification and summarized below. Responses have been prepared for each with regard to the entire EIR in an effort to address the concerns raised in the letter. Comment 1: The FEIR fails to adequately address alluvial, riversidean, and coastal sage scrub as rare and unique. The FEIR fails to mitigate for the significant loss of such sage scrub, and the cumulative impacts of such a loss as a result of the project. Response 1: The California Department of Fish and Game (CDFG) raised similar concerns regarding whether or not the biological assessment contained in the DEIR had adequately addressed the sage scrub habitat on site. The CDFG and the project biological consultant disagree as to what type of plant community(s) exist on site now, what can be expected to exist there in the future and what level of significance the degraded areas of sage scrub on the site warrant. The disagreement appears to stem from the lack of a proper definition of what constitutes Riversidean Sage and Coastal Sage. A discussion of the issue can found on page G-3 of Appendix G to the Final Environmental impact report, beginning at paragraph e. The City has chosen to determine that the position of the CDFG is correct. A Statements of Overriding Consideration will be required on this point if the project is to be approved. Comment 2: The FEIR fails to adequately disclose the impacts associated with fuel modification, and fails to reconcile conflicts between fuel modification requirements and biological resource mitigation measures. Response 2: The CDFG in their letter of July 30th raised the issue of inappropriateness of fuel modification practices with respect to preservation of wildlife issues in the DEIR. The CDFG understands that there is a conflict between fire protection needs and biological values on the site, as signified by their September 14th letter. Further discussion of this issue can be found on page G-13 of Appendix G to the Final EIR, under the heading "Biological Values vs Fire Protection Values. Comment 3: The FEIR fails to respond to CEQA Guidelines section 15206(2) , CEQA Guidelines section 15130 (b) (1) (A) , and to the CDFG Public Resources Code section 21153 . Response 3: CEQA Guidelines section 15206 establishes criteria for deeming a project to be of statewide, regional, or areawide significance. This project does in fact meet the criteria established in this section. This section stipulates that the Draft EIR for such projects be submitted to the State Clearinghouse and to the appropriate metropolitan area council of governments for review and comment. The DEIR was sent to the State Clearinghouse, Southern California Association of Governments, and the San Bernardino Board of Area Governments for review in compliance with this section. CEQA Guidelines section 15130 (b) (1) (A) , requires that the EIR contain a discussion of cumulative impacts, reflecting the severity of the impacts and their likelihood of occurrence, including a discussion of past, present, and reasonably anticipated future projects producing related or cumulative impacts, including those beyond the control of the lead agency. The CDFG raised a similar concern that the DEIR did not adequately address the cumulative effects of the project on area biology. A complete discussion can be found on page G-14 of Appendix G to the Final Environmental Impact Report under the heading "Cumulative Effects on Biology in the Area. " Please refer to the CDFG's letters for their concerns regarding the assessment of biological resources, the environmental consultants response (Appendix G to the FEIR) and City biological consultant's responses to those concerns. Comment 4: The CDFG requires that county planning asses the impacts of proposed projects on habitats adjacent to the project and on national forest service lands. Response 4: Please refer to the CDFG letters of comment dated July 30, 1992 and September 14, 1992 for a complete list of CDFG concerns in regards to the projects. For a response to those comments, please refer to the environmental consultants response to CDFG's comments contained in the Appendix G to the Final Environmental Impact Report. Comment 5: The specific Plan would displace some wildlife and deplete their habitat. The result of this action is that some wildlife will relocate onto the San Bernardino National Forest, immediately adjacent to the project site. This will burden the habitat capability of the forest. Response 5: This comment is related to the concern raised by the CDFG regarding cumulative impacts. Please refer to the proposed revision to the FEIR, Appendix F, and to the comments of the City consultant biologist regarding this issue. Comment 6: This proposed development is on a site occupying habitats that encompass state and federal jurisdictional components. This project is subject to the National Environmental Policy Act ("NEPA") , which it fails to address pursuant to CEQA Guidelines Section 15220 and 15221. Response 6: CEQA Guidelines section 15220 states that NEPA applies to projects which are carried out, financed, or approved in whole or in part by federal agencies. This project does not meet any of these criteria and is therefore, not subject to NEPA. CEQA Guidelines section 15221 stipulate that when a project requires compliance with both NEPA and CEQA and an EIS should be prepared rather than an EIR if an EIS will be prepared before and EIR would otherwise be completed for the project or when an EIS would comply with CEQA Guidelines. Since the project is not subject to NEPA, as noted above, section 15221 does not apply. Comment 7: The project fails to identify, address, or respond to the direct, indirect or cumulative impacts of raptors, migratory birds and endangered species. CDFG and CEQA require that biological surveys be made in the spring, prior to EIR certification. Response 7: City staff is not aware of any CEQA sections stipulating the time of year that a biological survey must be conducted. In their letters of comment, CDFG expressed concern over biological survey methodology. A discussion of survey methodology as it relates to CDFG concerns can be found on page G-12 of Appendix G to the Final Environmental Impact Report. Additional mitigation can be found beginning on page G-7 of Appendix G bf the Final EIR. Comment 8: The project is located within the boundaries of the San Bernardino National Forest and is subject to the Forest and Rangeland Renewable Resources Planning Act of 1974. This act requires the Forest Service to have a five phase program of monitoring and evaluation of impacts of lands adjacent to national forests. Has the City obtained these evaluations form the San Bernardino National Forest Interdisciplinary Team? Response 8: City staff contacted Gary Earney of the United States Forest Service regarding the requirement. Whether or not the Forest Service is required by the Forest and Rangeland Renewable Resources Planning Act of 1974 to have a five phase program to monitor the impacts of the use of private land adjacent to national forest is currently the subject of litigation against the Forest Service. The outcome of the litigation has not yet been determined. If the litigation is decided against the Forest Service and the monitoring is required, it will be the Forest Service's responsibility to implement the monitoring program. How such a monitoring program would be implemented by the Forest Service is not yet clear, but such a monitoring program could be established following project approval and is not required as part of the CEQA process. Comment 9: Is the City General Plan consistent with the San Bernardino National Forest Land Resources Management Plan? Response 9: The City's General Plan was recently updated (Adopted June 2, 1989) . The process of updating the General Plan took place over a period of 3 years. During that period the U. S. Forest Service was given numerous opportunities to review and comment during the 0 l Plan update process. Based on U. commentsfrome Genera them in involvement in the process and the lack c consistent with the Forest regard to the General Plan not the being gCity would have to conclude_ Land Resources Management Plan, that the General Plan is consistent. Conuneat 10: The propose Specific Plan project FEIR fails to mitigate for and disclose substantial evidence wo ldefragment ance of the biological corridors which this project Response 10: echnical Appendices of ! The Biological Assessme dc contain discussion of the corridors. the EIR and the DE R o Please refer to those sections for the requisite discussions. Comment 11: Proposed development on-site, in surrounding hillside regions would have an unmitigated significant effect on the required hydrology for the unique and rare alluvial is floodingd and surface wetland sheet habitat which depends upon period flow. Response 11: The source of flow for Velfl riparian the areas of sage scrub will interrupted. In areas of development as previously noted. A be removed and significantly id Consideration will be required if the Statement of Overriding project is to be approved. Comment 12: The administrative Procedure Act, Title 5 United States Code Section 701 et seq. and Title 2 United States Code Section 706(2) (d) , require that an agency has "taken the required hard look at the environmental consequences of its cisio s-" dlif /fuel h also include geophysical escarpments, y d modification, and visual impacts on national forest lands. Response 12: s and the preparation of an Environmental Impact The CEQA proces the contents of the Report and the consideration of Site Environmental Impact Report sat these etce require all been addressed in the hydrology, biology, aesthetics set of documents that constitute the Paradise Hills Environmed in Impact Report. The contents of these documenetss are being us determining the consequences of approving Comment 13: I recommend that the City adopt the "environmentally superior alternative" of no project, CEQA Guidelines section 15126(d) . The City should prohibit development in loo-year floodplains. Response 13: Comment noted. Comment 14: Any proposed development such as support facilities for parks evaluated in golf courses and their associated parking should be terms of the negative effect on groundwater recharge and potential flood damage. dConcrete osits and accelerate runoff so it s less time to into alluvial p be absorbed. Response 14: No golf courses or associated parking are proposed by the project. The absorption, and permeable increased surfaces runoff have been adds addressed decrease in the DEIR. absorption, Comment 15: The FEIR fails to respond to CEQA Guidelines sections 15126(a) and 15127 (c) "direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both short-term and long-term effects. Response 15: The complete set of documents which constitute the Paradise Hills Environmental Impact Report -- the Technical Appendices, the DEIR, the FEIR which contains the Mitigation Monitoring Reporting Program, and Appendix G to the FEIR -- do respond the Guidelines of sections 15126 (a) and 15127 (c) and do address the direct and indirect significant effects of the project, giving due consideration to both short- and long-term effects. 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 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. 27 28 2 r 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 i I (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. 91-0311 and 26 there are no known potentially significant environmental effects 27 not addressed in the Final EIR. 28 4 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. 90-031 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 0 1 (B) The Specific Plan will ensure development of desirable 2 character which will be compatible with existing and proposed 3 development in the surrounding area in that the Specific Plan will 4 be implemented subject to the requirements contained therein. 5 (C) The Specific Plan area, including the General Plan 6 Amendment area, is physically suitable for the requested land use 7 designation and the anticipated development as analyzed in the 8 Final Environmental Impact Report, which determined the development 9 desirable and appropriate for the area; all public services and 10 infrastructure are available to the project area and any 11 development permissible under the Specific Plan would not impact on 12 these facilities. 13 (D) The proposed plan will ensure development of a desirable 14 character which will be compatible with existing and proposed 15 development in that the policies established by the Plan are 16 intended to encourage high quality development of a nature 17 consistent with surrounding developments. 18 (E) The Specific Plan will contribute to a balance of land 19 uses so that the local residents may work and shop in the community 20 in which they live in that the plan proposes residential land uses. 21 The site is designated by the General Plan for residential land 22 uses, and the theoretical maximum number of units obtainable on the 23 site does not change. 24 (F) Specific Plan No. 90-03, Paradise Hills, is attached as 25 Attachment 3 (Exhibit C of the February 1, 1993 Mayor and Common 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 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. 26 91-07 and accompanying Legal Description have been included as 27 Attachment 4. 28 7 Alftk 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 j 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 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 6 I HEREBY CERTIFY that the foregoing resolution was duly 7 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 a day of g g Y PProved this 21 Y , 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 B r� y: 28 10 0 0 1,YTY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTIOR Paradise Hills Specific Plan gym: Al Boughey, Director Subject: (Specific Plan 90-03 , General Pla: 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 . z j% Signature Al Boug 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: ncil Notes: �� ANEW �f 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. 4. w Paradise Hills Specific Plan MCC 2-1-93 Page 2 KEY ISSIIES: The following key issues have been identified by topic: SPECIFIC PLAN ISSUES 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 I 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 RIB" ; 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 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 0 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. 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 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 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 261 CEQA. 271 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 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 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 ! 271 information contained therein is attached hereto as Attachment 1 3 I (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 g 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. 281 i 4 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 e 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. I 14 (H) The Mayor and Common Council have given great weight to 15 the significant unavoidable adverse environmental impacts. The I 16 Mayor and Common Council find that the significant unavoidable 17 adverse impacts are clearly outweighed by the economic, social and 1s 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. 271 2s 5 I (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 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 proposed plan will ensure development of a desirable 14 character which will be compatible with existing and proposed 15 development in that the policies established by the Plan are 16 intended to encourage high quality development of a nature 17 consistent with surrounding developments. 18 (E) The Specific Plan will contribute to a balance of land 19 uses so that the local residents may work and shop in the community 20 in which they live in that the plan proposes residential land uses. 21 The site is designated by the General Plan for residential land 22 uses, and the theoretical maximum number of units obtainable on the 23 site does not change. 24 (F) Specific Plan No. 90-03 , Paradise Hills, is attached as 25 Attachment 3 (Exhibit C of the February 1, 1993 Mayor and Common 261 Council Staff Report) and incorporated herein by reference. 27! 28 I � I 6 I 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 I18 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. 2-6 91-07 and accompanying Legal Description have been included as 271 Attachment 4 . 7 I 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 I16 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. 91-03, 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 271 adopted and approved by the Mayor and Common Council and which are 281 8 I I 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 s 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 1s 19 20 21 22 23 24 25 26 27 i "s 9 I 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 If 1993, by the following vote to 9 wit: 10 Council Members AYES NAYS ABSTAIN ABSENT i 11 ESTRADA 12 REILLY 13 HERNANDEZ 14 MEUDSLEY 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 i JAMES F. PENMAN City Attorney 27 By: 10 �S III ` RECONINIENDAT:O\S of the San Bernardino Cite Planning Commission Concerning the Findings on 'lie Final :l� ironmE ntal Iillp�i. .Z�r)(>rt or the ''aradise Hills Pri;j(fct The Planning Commission hereby makes the following recommendations to the Ufa%or and Cite Council concerning the Final Environmental 1.^.':pact Report for the Paradise Hills project: 1 ) That the Mayor 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. 2) 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 reviexed and considered the information contained in the Final EIR `_--fore aonrov ine the project. �) That the 'vlavor and City Council find that the Environmental Impact Report was prepared by a consultant under contract to the applicant, and that the City has guided its preparation, independently reviewed all aspects of the documentation, and drawn its own conclusions about its adequacy. �) That the Mayor and City Council adopt the Findings and Statement of Overriding Considerations (Exhibit A), finding that 1) all feasible mitigation measures and ,,it-2matives have been required, and '—) the projects expected benefits oui% eigh the adverse environs-nentai 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 Mitigation Monitoring and Reporting Program for the project (Exhibit B) and direct the Planning Department to the miti_ation mc- itcrin a ,ro_rarl] contained therein. ATTACHMENT "2" FINDINGS AND OVERRIWNG JNSIDERATIONS Fontana Corners Specific Plan 90-03 Page 2 EXHIBIT A FINDINGS AND STATEMENT OF OVERRIDING CONSIDERATIONS REGARDING ENVIRONMENTAL EFFECTS OF THE FONTANA CORNERS 111 RESIDENTIAL DEVELOPMENT >P._:: IFIC PLAN 40-03. KN W� N A" PAI DISr HILL). The City Council of the City of San Bernardino, in approving the Fontana Corners I 1 1 residential development (Specific Plan 90-03, known as Paradise Hills),makes the findings and adopts the statements of overriding considerations herein set forth. The Environmental Impact Report on the project identifies possible sigTnificant adverse environmental impacts of the project in a number of areas. Mitigation measures have been developed and imposed %yhich mitigTate impacts in most areas to some extent. Imposition of mitigation measures will mitigate impacts in most areas to a level of insignificance. These impacts and mitigation measures, the rationale for uhcir effectiveness, and the reasons why other mitigation is not necessary or feasible, are described in Section A. Four areas of impacts are mitigated to some extent after the imposition of mitigation measures. but not to a level of insignificance. These impacts and mitigation -measures. the rationale for S. d 1 C. .::.. ... S0:".s L'l.'1er ml ICn i$ :iC zcssar' ... .;.aslbi .:ro C-'esci� Section B. The project offers benefits which have been balanced against its unmitigabic environmental effects. These are described in Section C. The Environmental Impact Report analyzes a r2mge of slternatiyes to the ^roject. Alternative 4 has been chosen in favor of the proposed project, as described in Section D. Finally, conclusions arc `liven in Section E. SECTION .�- ;.IIP.;C S .MITIGA TED TO l\SIGNIFIC.;NC:: The City council finds that. in the following areas. the project's environmental i, ^acts are significant, but are mitigated to a level of insignificance by changes which have been required in, or incorporated into, the project to avoid or substantially lessen the significant environmental effects. 1. Geclogv and Seismicity Struc"ures and persons on the site xill "e subject 'o �l°^.rllc..'t °*eu.^,C i� F:ir. • _ seismic events. The site is also subject to potential hazards of landslides,l•,cuefacvon and rupture. The rC Se:Sm:., ar:d _CC!C^ir nn• rt rit:m :. $l:rC$. a .} n ��^ ^.0°$ :�el$$C C�. I.. _. ., ., _. .p. g ..,.. ...- .... �... ....-_ ... Sections IV-A and V of the Draft EIR, and Sections II-9 and~-10 and Appendices B. C, & D of the 5, FIN'DIN'GS A.ND OVERRIDLNG �SIDERATIONS --------_---- -Fontana Corners --------- Specii7c Plan 90-03 Page 3 Final EIR. These impacts are avoided or mitigated to a level of insignificance by Geology and Scism-Icity Mitigation _%'.easures .A-1 L`rough A-30, as shown in Exhibit B (thc Miti_atior, Mor,ito,in Checklist)'. 2. Hvdrology. Flood Control and Drainage De ..ic^mem of ... _ will _c. _. ... c'^. i:c' .-..:i .:rca s surfaces, Lhereov increasing --u-off over exis=t icvcls. T ne n%C'_oIc'YV' :11COCI ;;er.trei ^a drainage lmoa%t_s, Ti1L' ation measures, an; �nclr effectiveness are discussed in Sections ! -C a. '. of Lho Dra^ EIR. and Sections H-9, -10, and -1 i and appendices C and D of the Final EIR. Thcsc ::nnacts 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-tern 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 glare. Light and glare impacu, mitigation measures, and their effec:iycness are discussed in n - n = : , ...., �-...L ``.I ... �.....iv � 1 -1 .-..0 �l T...:s C'. :ill�,u�..J .a 1. .:��V a�...... Or .... � ...ly. to .. ..........�.Q '�. .�. .'.i VL insignificance by Light& Glare�lidgadon 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- 1 through G-13, as shown in Exhibit B. 6. Land Use rrOjeC: .^cI1dJS an annexation .C4�cst on _C.- acres xiiiz'-, ',ill ll:c ..:: .'and ase .. plan of the City to a minor degree. Land use impacts, mitigation measures, and their effectiveness are discussed in :he Draft EIR in Sec:ion IV-H and V. These im7ac:s are n-voided or rated '^ a reduced level of insignificance by Land lise.'Ylidgation Measure H-1, as shown in Exhibit B. 7. TrarsponaLion The --rojec: -,ill Reaerate -.671 daily trios on existing road'.vays. Traf:';: :mpacts, mitigation treasures. and ~eir c::cc:ive^ess are disct:Sscd in Sc aon IV-1 -V of the Dr:::ft EIR, and in Sections II-1, -2. -3, -6. -3, -10. &-11 of the Final EIR. These impacts are avoided or mitigated to a f FI\DI\GS AND OVERRIDING ..SIDERATIOIS Fontana Corners Specific Plan"-03 Page 4 level of insignificance by Transportation Mitigation Measures B-14 and 15, J-1 throu2 h J-6, and by adoption of Aitemative 4, as shown in Exhibit B. 8. Fire and Risk of Upset The project places '.omes in a high fire risk rea. grid ..ill .r:crease ,:cmand ier ire and services. -ire and _ :c,, se^.•ice impact:. 'i. _ °::e^ -neasures. ,. ess ire a;scussed in the Draft EIR in Sccuons IV-K and V. These impacts are avoided or nisi=atcd to a lc�el of :nsi,n;T,cance by Fire dnu Ei—nerzencv Set-,i�;es _` ii: _ ii on `rleasures K-n4 as shown in E:�hibit 3, and by adocuon of .ylte^aiv +. 9. Water Service The project will increase municipal water demand, and will require construction of water lines and water system improvements. Water supply impacts, mitigation measures, and their effectiveness are discussed in the Draft EIR in Sections IV-tit 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 NI-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 'S ..rz c.,-.'.d yr 0-1 and 0-2, as shown in Exhibit B. Schools Measure 0-2 and, in pan, 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. Energy The project will increase 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-1 as shown in Exhibit B. 4_ Fr DrNGS AND OVERRIDriG NSIDERATIO\S Fontana Corners Specific Plan 90-03 Page 5 13. Parks and Recreation The project provides adequate parks and recreation facilities, but :hey must he dedicated to the City to provide for area-wide pubiic enjoyment. Park and recreation impacts, mitigation measures, and their effectiveness are discussed in the Draft EIR in Sections IN'-T and V. These imcac,s are avoided by Oarks and Roc,-cation '.1casu,-c . -.. as S�O%-,.. ... [ 3. lam. Cultural Resources The proiect is net considered iikeiv to. 'ut :nay impac: isto. is:c­4;: ::soy,.cos. 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 L;-1 and V-1. ,s shown in Exhibit 3. SECTION B. I`IPACTS 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 Wass.- . 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 Mitigation Measure R- 1, as shown in Exhibit B, but remain si21-1.ificalit. 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 project-related emissions from vehicles and consumption of natural gas and electricity. The project's air quauty impacs, i'nitigaucn measures, and effectiveness ;:re ciscussed in the :.raft E= in S,-c,-,'c,-,s IV-3 and V, and in Jecticr.5 ,i-O and -J �;I iiiZ rinai r--:R. Chant°s wN,,:*oh ..ecn roc lit d ir.. �r .,.con orates :nto ' ° -c cc. .0 these impacts include Air Quality Measures B-1 through -15, and utilities Measure S-1 as shown in Exhibit B. Air Quality pleasure B-1 is partly within the responsibility and jurisdiction of the South Coast Air Quality Management District, and can and should be implemented by that agency. The project's air iii`• :moacs 'x'111 4 Ji �J'iantlall' -cc� ed. cd :o be : '', mi,:^ated as u^e projcc: •:ill ;tiu .suit in unz: 0idablc. igni° poiiu„tla.m ,IC an air iss.cns. 7� FINDINGS AND OVERRIDV�G NSIDERATIONS Fontana Corners Specific Plan 90-03 Page 6 3. Earth The project will result in significant short term impacts on earuh resources as a result of construction activities and subsequent erosion. The project's earth impacts, mitigation rncasures, and their effectiveness are discussed in the Draft EIR in Sections I V-A and V, and in Secticn II-9 of the Final EIR. C anges which ave been required in, er incomarated into trc =icct to .:.C:d or lessen Lrlese :*nc=s ... :L'Ce EEarth mlt"'anor.A-6, and - , t! C 9 =�. 'n. .. a _ :.a.. A-26 and -_7. The project's grading activities leading to earth impacts will be substantially !cssened, but cannot be eliminated due to :.lc nature of the activit.. As such, the p-o;ect .,,ill :: resu!t 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 EIR. Changes which have been required in, or incorporated into the prefect to ayeid 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 developmen, activity. ar. : :!:C fed°ral xCL, s polic; T:.0 ref Ore, _i roject wiii result in anavoidab;C. si=i::c r:, ion_ to bioio�icai impacts. SECTION C. PROJECT BENEFITS The Citv Council finds that the project will provide the following economic. social, and other benefits to the City: 1. Tax Base and Fiscal Health T.ie project will promote the long-term fiscai ;.earth of :..Z ::t;�' J�' �LJ3Ianllally augmenting the existing tax base, through improvements to the land on which property tax will be genervwd. a_-id 'j =7h brr ^^ additicnal families ,.ith ,ncrcascd er.ci^_ :o a. This a 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 Mav f r. Planning Commission hearincy. This, in turn, will help in luring corporations to the City that can provide iobs. The Dmiect will create jobs during the ccrstrsc:ion _^hase. :r.c_ d: -cad. and -'ras:.,-ueture, Zrauiilcy, buliuln-, and iandscapinv_T. Other nplOVr ent aSSOCIai �ltn tnC FINDINGS AND OVERRIW Gr :SIDERATIONS 0. Fontana Corners Specific Plan 90-03 Page 7 development, but not necessarily newly created jobs, include maintenance of parks, trails and fuel modification zones-, private lawns. gardens and pools; child care; and similar personal sew ices. TINS is discussed in the Fiscal Impact Analysis (Appendix L) of the Draft EIR, and in Sections IV 1 and W of the Draft EIR Pla_nni.-fg Commission hearing. Road,vav Improvements proiect onstruc:s t k-o of four segments needed for P:edmont Drive, -ho%vn on the Ca,: s C n,,ral :-,!an Ci �1rC liati0r. Tiffs is discussed ,a 'uhc Soccific Plan Sez ion—, and the 1 r affic Ana1;:SiS (.ip C.^.uiX i) of Di-aft EIR. Sections III Unj lV-1 of the Draii and in t„C staff -cDort and applicant's presentation at Lye July 7th Planning Commission hearing. 4. 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 National 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 -f) 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 signagc about riparian biological communities. Cnally L.:e -2.Micct `1 -onst., Ct ..,,. :'lore or1zs_, :n. 1cS cf 7i kin° -__- :1l rollZ"ou, o 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 testimom at the May 5th and July 7th Planning Commission hearings. 6. Oven Soace in Perveruity 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 -.y, B, F, H and T, V and T.Y, in the BiologJ-•al Resc,-,,=s Sur're;• (appendix G; of:hce Draft _.R. '.^. Scc—cr. H _0 of 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 10 the school district. -which will enable the district to buy pro-en..v for a needed school site in the Verc;imont area. The same would not be a le to occur through simple imposition of schoo!fccs at the stage of development. This is discussed in Draft EIR Section IV - 0 and in the staff report and applicant's oresen!a tion at*he May 5th Plmnin^ Ccrnmissicn Hcar:ng FINDINGS&ND OVERRIDL;G• :SIDERATIOIS Fontana Corners Specific Plan 90-03 Page 8 8. Quaiitv. Upper-End Housing The project would provide housing of the type that would en=hance the imau=. of the city, and of which the city is currently in short 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 Impact Report (A�)omdix L', of the Draft EIR, in Section III and TV - I and W of the Draft EIR, and in 'he staff report r.0 appucant.s presentation at the:,vial. nth?i.?till: C_c .-SSien hearinLT. 9. Came P-° rtion 7-iouch Dcsicn 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 advisory. This is discussed in the Specific Plan Sections 2.4 and 5 3, and is Section IV -L of the Draft EIR. 10. Master Planning The specific plan process guarantees which land of development may 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 Citv. 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 50h Planning Commission hearing. SECTION 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 re;ected Alternatives 1, 2a, 2b, 3a, 3b, 5, 6, ', 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 r.i_lside area. Discussion of this alternative appears in Section IY of the Draft EIR and sho'r'n '.n Table 1 of-tie �_.. l =?R. Tl-e alternative c, u ;tie cn i n an" _..,. cos imp c: .e , ro ..cite.. an"', to minor degree, on traffic circulation. However, it necessitates greater impact in terms of earthwork, aesthetics, and biological resources. There is no other wav to get a second full-sized roadway to the top of hillside developmem area. The environmental impacts of this alternative are considered to outweigh the benefits. Therefore, this alternative was rejected as environmentally infeasible. 2. No. GP.? (LeNvcr?ntensity) Alternatives 2a and 2b 71 aiter:.ativ,cs ••t ouid .".aye :he same Imoac:s as ^roiect and Allen ative '. in most areas, as discussed in Section IX of the Draft EIR, and as shown in Table I of the Final EIR. Alternatives 2a and 2b ^oth have greater impacts in earth resources due -o the necess t,, for :nore FL\DINGS AND OVERRIDING -ASIDERATIONS Fontana Corners Specific Plan 90-03 Page 9 `rading in :he hillside area. Alternative 3b has an additional road (circulation cont:_-uration as shown in Alternative 1), which creates impacts to biology and acstheti,:s while leSsc-nir.Ll impacts to traffic and fire atotection. Under the c alternatives, the extension of essemiail- tl;c <amc level of urban infrastructure as that needed for the project would still be required. Wher. evaluates: bas::d on reduction of the project's significant impacts remaining after mitization. the environmental impacts of this Via::., s, '- =-n, ="_. C' .,. �L e -- S ..ccr:omic .:its. _S., 3i'LIM_-Li%IS ::r. I rc Ll-" _:_ _.::r.cnt:-,il, and __c ac nicaily i-f asible. :rad;donal l'H:IRt.er imensiLv) A::CIM LiV S and -3 These alternatives would have the same or arcater impacts than the project as proposed, as discussed in Section IX of the raft EiR, 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 ?nd access pattern shown in Altcrnativc 1. These alternatives are, therefore, rciected as environmentally infeasible, as it offers no environmental improvement over the project as planned. 4. Revised Alternate 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 - .`_-7:aLve 1. Dlle :o ...., .ev,>c _.. r.d-,.ds. ...., road _-ul,d aligned `:`.-rcntl` so as not :o create ::':pacts as severe as t.`:ose in Aitcma-4:'e 1. The disturbance '.o cpen spacz :s min' —tl-Cd: eanh%vork 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 fire safety. For these reasons, Alternative 4 is feasible and has been chosen as the "preferred alternative." 5. Biolosicallv Sunenor 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 the Final EIR. In order:o eliminate the crossing, Plarminz Area 5 and a pertier, of Planning Area 5 (as shown in the specific plan, Exhibit 8) have been eliminated ,Figure 3 of h c Final EIR re- numbers the Planning Areas in different sequences). The ciimiration of these deveioprrent 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 -ltemative, :herefore, risks financial infeasibility. It also eliminates the abilitv to site water reservoirs 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 he City, and which arc a particular -2roject obiec:ive. For these -casons, AI:cmative 5 % as .:s ;ccne^i_::ll .n .avor of .-;ltemative 4. FINDINGS AND OVERRIDLIG .:SIDERATIO\S Fontana Corners Specific Plan 90-03 Page 10 6. Geolosically Sueerior,No Hillside Development) Alternative This alternative reduces impacts associates: with fault rupture and landslides by eliminating the need to cross the fault zone with public roadways. No habitable structures are segregated from other urbanized areas in San Bernardino, and from emergencN, services, by the San Andreas or related fauns. This alternative is t7ls:ussed in Section I of the Final EIR, and s:.--%vn in Table 1 (cent.! of Lhe ;tnal EIR. T'„ alternative eliminates all hillside :Ots. _.,,rob' 211:rn=ti^^ the abili:y to obtain a crucial protect ?oai and substantial city benefi[. .-also. per-unit costs for infrastructure are incrzased accordingly, :nakin_ the croject ecoromicaliv infeasible. rcr these reasons, Altemative 6 was 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 T ablz 1 of the Final EIR. Under this alternative, the extension of essentially the same Icvel 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 the 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 s .^c site, though similar in size and characteristics, would yield the same or Greater impacts as the ^reposed YrOjcC:. -:d .o be—z.- s::zs are 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. "'so Proiect" Alternative The "\o Project" alternative would create no environmental impacts, but neither'.;'ould it generate any of the project benefits, as described in Section C above,nor does it fulfill an}, 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. CONCLUSIOtiS The 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 %v-1::in the responsibili:v and iurisdic:ion of e licr accncics. Cthcr n.-;_caticn is not feasible -or neccssar: :o miti_atc :hc projec:'s impacts, ::s dose^bed atov c. MDI\GS AND OVERRIDr�G :SIDERATIO\S Fontana Corners Specific Plan 90-03 Page 11 (2) A reasonable ranee of alternatives to the project has been evaluated, as described above in Section D. T-te environmentally superior altematives (.Biologically,#5, :,nd Gcoio�.:i call y, T6) 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 CitN'. Attematives 1, 2a, =b, 3a, 3b, 7, and the alternate site location are not envircnmentaL'y superior, and would not attain the project objectives to an adequate degree. T:_e "No P-eject" alternative ,vould not attain the project obiecaves at a11. These ..:ernatives to the arojec: are, therefore, determined to be an infeasible means ot_atainins the =reject o�jcc:iyes and/or the Denclits cf he project, and are rejected. (3) lit.° -13llye - '.vlll wov:Ce substantial public jenc',.its, as 7ovc 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 less than those that %vould 'c^ oroduccd b%' Altematl „ •and *,he our i benefit is the same as that of Alternative 1, but greater than that of Alternatives 2, 3, 5, 6, 7, g, and 9. Economic growth within the City requires new sites for upper-end residential developm-eit with enhanced tax revenues, as well as attention to land use integration and urban design 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 ;'cvcicpment xhich 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 already incorporated into the project application, have substantialiv lessened the adverse environmental effects of the project. Most effects have been reduced a 1-e.e1 ^I ..^.$1^riil: y . .`cr nc ..,.........iii. ac ersc not 71e_4,:ccc ' i �' ' _:: c• i.� 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 retraining 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 OVERRIDL%;G .:SIDERATIONS Fontana Corners Specific Plan 90-03 Page 12 EXHIBIT B i MITIGATION MEASURES APPEARING Iti THE MITIGATION MONITORItiG PROGRAII A. tea^ A-i subsurface investigation of,",e portion of the site ,o be 'cveloped %',hich lies within the Alquist- 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 %vith 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 sL^uctums 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 Citv of San Bernardino. The report shall include detailed loos of the trench wall with recommendations with setbacks from anv active faults encountered. A-2 No habitable structures shall be allowed within the Alquist-Priolo Zone unless trenching is performed to establish the ali(Tnment of the fault. No habitable structures shall be allowed within 50 `eet of the fault: :nc:eased setbacks may be required as a resul, cf rcco:r,m ndations tDv the —-istered geologist. Cleaning and logging of the trench walls shall include careful analysis of any coil 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 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 fault traces. The faults shall ^e staked in the geld, 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 engineering geologist -,r or to and during ` adimT. An engineering geologist shall be on site to monitor-radinz. .;nv landslide debris encountered shall be immediately evaluated in the field by the engineering geologist by extrapolating the debris in three dimensions and determining whether the debris poses a hazard to structures. If are to ,. ^'. ^d ..,, a ^� �e istcrcd ''.. :c�raca. �r •..,,,,. .,.a ac,. �n : ^ deb s, � C'Iifor..,a _ ...°o,• .. ,,:^^,� - it conduct testing to determine u.e density and suitability of she materials for foundation support. A determination shall by :Wade tv -ither:he tc al :ne .`:e .. J..�. clinic er or _..gincc-- = -colo-zist as 10 FINDINGS AND OVERRIDING iSIDERATIONS Fontana Corners Specinc Plan 90-03 Page 13 whether the material shall be removed, and where necessary, replaced with compacted fill according to the recommendations of the gectechnical engineer ana en_ineering ecologist. A-4 Structures for human occupancv shall not be placed on or near any cf the landslides or debris flows unless the engineering geologist determines that slope failures will not be adversely affected by _^_radinz, or debris is removed and/or stabilized during Grad;-g. 1ny to oe 21accd in andslides sl,aii be ;.valuated by the zneinccrl:i3 Lcolozisl by n a on'. �r L.e :.�� erT C. �,i cir.3 0 ,, more bonr.es :: t,,,, landsi,;.;, aycas tc t.et ,,,ire t„c three dimensional aracte sties of :he :a ndslluC, :he stablllt;r ,; :he landslide, and c x-loration :or any perc:,ed 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 :Wade by 24-inch bucket auger if possible, with detailed downhole logging by the engincern? g°cloQist 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, includine measurements of the density of the materials and logging of the cuttings at the surface by a registered geologist and blow counts shail be recorded for samples taken every 5 feet within the boring interval. If neither of the above are feasible duc to the nature of rock encountered. rotan borings by either air or water shall be made with samples and blow counts recorded at five foot intervals. These borings should extend to a depth of at least 15 feet 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 t~: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 the 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. Tl:e borings shall determine the grain-size distribution of the soils encountered, the density of the rnate^rls _nc_­_: ,:eyed. inc'.uding blow counts capable of bein_ convened *.2 =pariscn with standard liquefaction curves, and the moisture content and depths to any free water encountered shall be included in the boring logs. The _^_eotechnical cnzineer shall then use this data in cc:rbination witz the _round shaking data from the engineer.;:, geologist to calculate the materials' susceptibility to liquefy. A-9* The maxi:nurn inclination of all cut slopes within granitic bedrock shall be 1-3/+ horizontal to 1 vertical, up to a maximum of 30 feet in height. FINDINGS AND OVERRIDr�G ,NSiDERATIONS Fontana Corners Specific Plan 90-03 Page 14 A-10 The maximum inclination of cut slopes within competent marble bedrock shai'. be 1-1/2 co-izortal to 1 vertical up to a 30 feet maximum height. Steeper cuts may be fable but shall be individually investigated and analyzed for stability. A-11; For planning purposes. cut slopes within the areas designaLcd as Qls on the _cc:echnical -nap .,,j,endia -,-all'e _ horizontal to 1 ven:c ai ,r Ia;icr. :D :o a max 0 A-_= The -naximum inclination of all cut slopes !vith 'alluvial matcrtatS _:'ail 'j�e _ ?'Jrtzontal :� 1 2nicz1. :o 30 feet maxi:,.u. , 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 engineer-mg geologist and the Cite Engineering Depart neat. A-13 Cut slopes which could intercept slope runoff and arc greater than .5 feet in height shah be provided with a concrete lined "V" ditch above the top of the cut slop: 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 buildins code. The grading plan shall be provided to the engineering geologist so that any cut slopes higher than ?0 feet can be identified and further evaluated by additional geologic field observations at that �,ccific location. The held evaluation shall result in the engineer.. =eolo_ st _.:'.:er r^.,:._..^g ecommendations to Oiace a boring at that location, conciude that : e sioo-,s .v it be stable as 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 bras to the attention of the grading contractor and owner any conditions exposed during grading mat could result in unstable slopes. Any areas indicating instability shall be immediately further evaluated by borings and/or :`tree dimensional analysis based on existir,s cxDOSUres created during a-adins so :het recommendations can be made by the engineering geologist for midgation 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 10%vard from the roe of the step slope, �:vhichever is the greater. A-16 For planning purposes, structures to be placed at the base of steep slopes shall be set back from roe cf :., sloe-, a:lorizontal instance eaua1 to 1/2 the siCDe r-,izn:. 'o :o a mdXLi,um this ncz Of 15 feet. Each slope and setback shall be individually evaluated during review of the grading plan. Human occupancy structures shall not be placed less than-0 feet frc-i he base of any landslide _:°as shown on?late _ f `,e „naireer n?gecic2. report ,.a::d Oc:cire- '. l9?0, ess addi::cn_i subsurfac_- b.orings and three dimensionai anaivsis of slope stability as :.-scribed ;:nucr Section A- ' ',as concluded that uhcse areas are stable or are not'.andslidcs. FINDINGS AND OVERRIDLIG SSIDERATIONS Fontana Corners Specific Plan 90-03 Page 15 A-'.7 Grading of the site shall be cvaivated by the engineering coiogist by in-grading n�pc_,ions. A California registered gecio<_ist shall be on sit:: during zrtding operations to evaluate unforseen conditions that may be exposed during grading. Monthiv reports shall be provided by the 'eZistered _eologlSt and 1fthe geologist i5 or iClTlnatcs h1S contract w'il'l the developer A-18 Prlor IC '.-Imativc mao ac-.-c%,a:, _'^t -:cal _'n C. :.. St' :3n Sh:.11 �C .� .. _eotecririical ^.0 ncc. 1..Q Sl bmitt°.,. .. 'hC G_ ^P.S .''e7aP.-nom. Ja:u- ::cntai*1 sc i and foundation design crite,:a to be a,cd in the rroicct design. A California Registered Geologist shall provide a detailed gcotechnical engineering report on each tentative tract within t..", project, which shall include :he results of the subsurface testin_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 gcotechnical conditions found are consistent with the report findings. A Caiifomia Registered Geoiogist shall be on site during ail grading operations on the project. Canyon cleanouts shall be observed by both the geotechnical engineer and the engineering geologist and any areas containing evidence of high groundwater in the past or present shall be adequately drained by either surface drains or subdrains ,%here fills or structures will be placed over those areas. Mont dN reports shall be provided by t„e gcotechnical engineer and engineering geologist summarizing grading operations to that time. A final geotechnical engineering report and final geologic report shall be prepared for t.ic project, descri bing Londitions observed 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 dcbr.s areas fer the possible cresence of 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 report dated October 4. 1.990, test '-o rigs shail 'ce oiaccd at '.ecations seiec:ed pv ti,.e engineering geologist to evaluate 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 acoroved ty the rc subject :o C'—'-QA review. FINDINGS AND OVERRIDING .iNSIDER,ITIONS Fonfans Corners Specific Plan 90-03 Page 16 A-22 Prior to recordation of anv final mao, the applicant shall sabmi: a detailed _riding pl;:n. The plan. shal include ^.e followir.'iracrmation at a minimum: o Preliminary quantity estimates for grading_ o Designation of areas of temporary borrowing or depositing of:,azCrials o 2"c_^niaues w;:._.. -vill oe .:sed to rt cred(':: _... ..ed:... ..._:.. .. ^ .nd arte: :.e .:ir,= ^rocess. :rcludin� ;c slc^es. o A—c-roxi„rate ti.:.e frames for ),radina ncdin= n ol ct .;iii;h may be graded dul,ng the higher probability rain ':on**-s of _anuz.r. `rough -March. o Preliminary pad and roadway elevations. o Necessary drainage facilities such as "V” ditches for centrel of drai^ace. n-'73 All grading plans shall be reviewed and approved by the engi-cring geologist prior to arty urading 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 fill slopes will be landscaped or suitably protected to avoid erosion v,ithin 60 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 :;parian ;trea shall be revegetated in conformance with a revegetadon plan. A-28 Removal of existing on-site fill in proximity to the existing water line which traverscs 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 oft- ero;ect shall be reviewed and approved by the State Depanment of Conservation, Division of Mines and Geoiogy. A-30 ' `rad'ng plans shall be i°w `° tec^ a n2 ,f - .-�l. .. �ed and approved b. the �o .nic 1 �� ine:.. .,rior :o any gi-adL'1g. B. Air B-1 T:.e short tern air quality ::^pact resulting from constnuction ac. yit:cs _ ti '4uSt .:t t:1e CSUSB campus in the -.:orst case scenario) will be mitigated by pericoically •;%euing e soil surface during brndin; and site preparation processes. The censtn:c.i�n :,all co...ply, with SCAQMD Rules 402 and 403. FINDINGS AND OVERRIDING ,NSIDERATIONS Fontana Corners Specilic Plan 90-03 Page 17 B-2 Nonsoi';ent-based paints shall he used on buildin�_s, whorcver feasible. l sc high-solid or water-based coatings on all structures. B-3 Al construction equipment shall to cleaned daily. All trucks shall be washed before -° C0^ct^�,: -^^site. B-1 Soil birde rs shat tC used on the si e, unpaved roads, an Parkin,- areas, ccstabl:sn:r'' 2rou.ndcover rCU_h:,v rosceair.a and irnzatina during cstablisiimcn, plants. 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 construction. 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 c;hall 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-14 Provide a flagperson to guide the traffic properly. B-15 Schedule operations affecting traffic for off-peak hours. C. Hyd-ologv C-1 The final design of the project shall comply with the City of San Bernardino standards for storm drainage, and shall be designed in cooperation with the San Be ardino Countv Flood Control District. C-2 Drainage plans shall respect historicai drainage patterns to the extent feasible, and any changes in these patterns shall be adequately offset. C-3 .1ll Badger Canyon low tlows shall continue to ;low into the main charnel to the �_reatest tent feasible. FI\DI\GS AND OVERRIDL\G ,NSIDERATIO\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 Q100 exceeds the r -_:-t-of-way elevation, an underground storm drain .gill be constructed. C-6 Easements shall be provided for drainage through residential lots. C-6 Cn-site inle•s and siltation rasms, as w'-111 as cnc;c, sc b= c : _s _ means -eV=t _rosier.. ... '�'•1:.°.re brow ...wa.P.S yre . quircd. :h.-, _'-all be r_-turalizcd %vi?h mat:.nals an,; .......�. rvek-S. C-8 All drainage contributing to pads or slopes will be intercepted by drainage ditches and carried to L"e street, storm drain or natural swaie. C-9 Badger Canyon: Badger Canyon contains natural riparian vegetation. Therefore, it s1:a11 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 from >r SCOE -,rior to the initiation of any construction w i:hin StreambedS or riparian areas. C-11 Fresh water Seeps: Where fresh water seeps fall within developed portions of the Specific Plan, they shall be avoided where ever possible. Any runoff%%ill be picked up as directed by the soils engineers and be conveyed directly to a natural drainage swale .�"-'cre possible, or to an underground storm 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 drainage studies, including required temporary and permanent drainage facilities and erosion control measures. All on-site i cod control facilities will convey the 100-year flow and shall be developed according to specific City standards. C-13 A Final Hydrology Study shall b:, approved by the City Engineer, and shalt be incorporated into the public improvement plans and site develop_ ment plans prior to their approval. 1� :e aradfse H tl 1 s gill bssessd ny ap^rcprt1 a es :nd: s - - c . . pro-rata fees :cr consmuz:ion of the flood control improvements. FINDINGS AND OVERRIDING NSIDERATIONS Fontana Corners Specific Plan 90-03 Page 19 C-I5 Al major drains form hillside areas shall be open channel., where possib'.e, and sized to ro `:illSidcs drain.lgc accommodate .l'�e deb-is loads. .-�11 uncle.�reund Morn sr::in, accept;:;_ shall have an overland escape route provided. D. Biolc-zical Resources D-1 E-..::ance .::e .crnai ;. :e :oral chec:cist of :.e `'.i:.'. ;n ...- 3iole?.; � or,. -71,,c C: - of San Ber ardino ., .1:.cs a M, P.Imu,n _.1 'eClace.^.^.e.^.I CI c lanC sreaS. ,njovc .,Xot; C_=: .. n :ii^ :he channel. including Euca;votus, Ailanthus, Grevii1Ca anu NCrium. 1e altcraii.on cf the 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 permit of:he Corps. A 1603 Stream, bed .-Utera:ion Acrccment will be -squired by the California Department of Fish and Game. The Agreement with the Department of Fish and Game will 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 allow for retention of biological values associated with these features. D-3 Prevent use of natural open space trails by motor cycles through sipage 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 sradinz operations on weekends or on lesal hoi;days. F. Licht and Glare F-1 Alternative lighting me,—hods, as acceptable to the City, shall be installed, to reduce light spill and glare. Such methods may include, but are not limited to, lower intensity lights, hooded light standards, shorter light standards. G. Aesthetics G-1 Grading standards set forth in the specific plan shall be adhered to. These grading tandards include irnoyct:ve tcchniet:es tern "'�i ` rm" � 1p,UrcA" �'a termed � d.c r' �cu l.. d,n� .ICh result in artir;c;al slopes 'which are modeled after:he natural terrain and result in less of a visual impact. G-2 All cut and fill slopes shall be iandscaped or suitably protected to avoid erosion within 60 ,,. e rca r^a ca 'a d �a�:s of coripletion of -�din� .,�...,� in the ....ii ., s :nd r.�n ar r. sr. :d :COPS shall CP zqutppez ,:Ith an aCi1CI1C :r °_Ct: :i Sysic r:. `',;*, =4. :.:_ S ores .1", Cnt to trails in the open soacc areas, or adjacent to the rioarian area shall be rcyc�zctaicd in vn CImancz ':;•;till a.­c,. c:aticn olan. | F[NDlNGS1ND OVERRIDING CONS D[V\Tl0NS | F(mtanaC"nmm Snvdnc Plan*o-03 9uXe 20 (]'3 No solid walls and [cnccxshz|| be allowed ud Uucoo| |o the open space areas 3,4.5, and 6. '�JdiiionuO!'. u�v {�cnc:sxhicil �rcconx[nucicd (ic. xpUL rail Ccorcs) ^i',xUbcOfucolor ,hicb 'blends in|o ibc /unnundinu natural areas. G--I ils �!'ail '-c j�/i��c� �o !irr�� ���� �c:Cucl c��r:��n� ��Cc//:�� Ao\ vc,"c�ation oroovc,.4 us cuu nC:,­jis cony/rzcJon s::U 'X rcr|:cz'� ��ccicS [O nn :-cuot �:ic��� O'5 ln hillside areas, die use o[lxr2c terraced pads shall hoavoided. G'0 In hillside uccus. the d:sigo and la!nu[ 0fsLr:CLS sbuU rcsp:c[ the nuiuczi lund contours and minimize lh: amount ofgmdiog required. G'7 VVhcrc uppliczbie, required permits ubaD be obtained from U. S. Army Corps of EoLyioccrs and the State o[California Department OfFlxh and Game, prior lo the issuance of gcadingpconiW. (]'O Where possible, the natural drainage courses shall be retained to carry surface water run- off. Man made drainage structures shall be desi(,ncd to blend into the natural terrain throuah careful uradinsi and the use of materials such as natural boulders as rip rap for the lininzofchannels. G'9 On s[ccpiv dopingSiiez. fforts shall be muUc `0 tailor the 'mouse to ±c_ �=ain lbnouub the use of stepped foundation or a series of small pads at different levels, rather than the creation of one large level pad. G-10 In Hillside areas. slopes Created by grading shall blend with existing contours. Geometric shaped, stepped pads shall hcavoided. O'll The revc,-Yetadoo plan shall iUco[ifv areas which must be crvegclutcd as u ccxub of removal of riparian vegetation. Au� dpubuove�c�udoulbosrcnnovcUrnoo� b� rc�loocd io accordance v/itbsaid rc,cactudooplan. O'lZ In hillside areas, !radinz shall be restricted to the minimum necessary for,he SiLinu of a house, azraac. unlimited vaojzrruo. Lur_2o terraced pads shall beuvoid:d. {]'lS All occn space areas is"zil be preserved and jifarcd io *he City cf Sdo Bernardino, CS USB, the Nature Consen-ancy, an Open Soacc 'vlaintenanc-c Dist'-44ct, or other suitable entity forsnoiolcnaocc. H. Land Use H-1 �-oplccncoi:bouofthe C*.ivG:occul P\uo9OUCi:x uod Oc1�ounccs oz��:�� .o High ��iod 2nd Fire Hazard Areas :s rcquircd. BNDlNcSAND OVERRIDING [oNSlU[RATr0NS ' Fontana Corners up,om,Plan yv`-0a puue2l To pnonnolc Vl bnmco[Occs and ncducocommuiu !hps. -Jdidon:l -none ;iocssbaD be inRxUcd in ihc den o[each home for moderns, [zcsimdz machines, and �us|ncss on S. ]'l Prior torccrn1uii000!':he inxlm:p. uphusing, pnOgr:rn 'or lb^ 17:1 imprcrcmeolS Shall bu prepared bv the applicant and approved bv the Enyjnccring, Department. Said tcu[Oc improvements include: l' Provide u -3-50' (more or less) northbound dual ]cft'turo lznc on Uoivcoi[v park-way u[NortbpxrkBoulevard. 2. PrOddcu southbound dgb['luro lane and modify the nOrbboundd(zbt'turo lane to permit -,b.-u /oo-onncolS or,, Little Mountain Drive at Nortbpark Boulevard. �. provide a northbound 621-it-turri signal overlap at Universi,,y Purkway and Nnrt.hpackBouicrnrd. J'� an and Cc7121c1c to!he streets as rrquircd fbrc2ch nh:s,- ofdhc J' Easements for the development of the access road shall be obtained prior to recordation o[the Final -Map for the project. }'4 T-,cconstrac:iono[thz :cccss road must bccomplete prior zo occupancy ofuoydwelling. }'; SiLedislaocc -.onoadxzyssbz|] cooO}onioihcCI*,}o{3unBcrourd:= Sianducds. J'6 If the following improvements are not installed or bonded for by others prior to the r:cnrdudoo of the first tract map that creates lots for individual bonocs in the Paradise Hills project. then the master dcvcloprcshall participate on a fair share basis in ,hz �bDov'ioairc:-,rorcnncou� o Eliminate �bc southbound right'turo lane onKendall Drive and provide u o 3i--nubzctbo Uoivcrd[vaod 1'215 lolcrchaoizo. o Provide a northbound dual right-turn luoc for the n[['rzz- at nircoky P:ck"kuy. 0 Provide 50}' or more o[ xcslhoumj dual lcft-turolzncon r��ruy L the souLl"Abound 1-21-5 ramps. 41 FINDINGS AND OVERRIDD G ASIDERATIO\S Fontana Corners Specific Plan 90-03 Paee 22 o Provide a 225' westbound dual left-iurn lane on \orth�,ark Boule% -rd at University Park«ay. o Provide a separate right-only lane for the eastbound approach on Parkway at the 1-215 southbound ran, ps. o Provide :50' Jr Ore and a ,_. Jr n,orc -1 uai _ e 10 t.ibou nQ and souLhbcund approacaes re spec:ivcIv for the ,r.ters�'c::On of 1_'r,i% -_. Parkway at Kendail Drive. K. Fire Protection_/Risk of Upset Roads K-1 Road grades shall not exceed 150. Collector and arterial streets shall not exceed S—f. 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--,er to curb face, and shall be posted "\o Parking- Fire Lane" or be 100' diameter. K4 The portion of Paradise Drive above Badger Hill Drive shall be a -oadway. ^_•,. n.,, a r2aved %4dth of at least 26' on each side Each side of the road should have a ?0' fuei r-odincation zone. The zone on the west side will require an easement on private lots. This will result in a roadwav/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-i Driveways shall not exceed 1517o grade. Structures exceeding 110' from public roads shall have ;ire sprinklers. Driveways exceeding 150' shall be 20' wide, and snail have an aotlroved fire hvdrant every 330',starving at entrance. K .access to t`ie forest shall 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 Ores_ the forest boundary(subject Forest Service review). K-9 Strzcl signs shall be non-combustible, reflective and .cadabl° at 100'. K-10 :-louse numbers shall be on curbs in 4" numbers after paving is done. FINDI\GS AND OVERRIDL;G ,\SIDERATIO\S Fontana Corners Specific Plan 90-03 Palle 23 K-1 1 All roads shall be const^acted to City approval. K-12 Construction documents for all roads shall be submitted to and approved by the Fire Department. F irc P-ctection `,Water System; K-:_ An a^Dro-ed re crotec-on s'.'5....,,. .,:....,in? !rc of "•-lLionai . .. . _ Sts_dard _- ar. *.hc : _...ena of C'.... . Dis:r.c:. _..r. :o' S system sincuid use aicd .a a. .'o:i :�Vld: _ "u', i '.,`J'L' ..r.. ...a;-I s ... Main sizes should be at least 8" in diameter. System fire flow should begat least 1500 GPM X 4 hours (plus domestic flows) at pressures adequate to supply fire pur..pers and fire sprinkler systems. individual hydrant flow shall be at least 1000 GPNI (one ;'drant 110,x in Wa.e- domestic mouirements. Water tanks should have automatic refill, and shall comply with \FPA 22. Any pumps used :o supply fire flow shall be UL listed for fire servicc per N FPA 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 Any static sources, such as public swimming pools. shall have a fire hydrant on a drain line. Drain shall be 4" in diameter. K-15 '.eater tank shall have a Fated irc cecartment 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 sprinklers," wherever mentioned, shall comply with the applicable National Fire Protection Association (\FPA) standard, and be approved by the Fire Depart,—_,m. They 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^. _;ns, valves, yr f$. __ is �.d .:s*:tu,,:on 's:2.:: must %vith: o American Water Works Association (AWWA)standards. o Water purveyor requirements. o F?:,, Dec=nt r^quire^:ents. o NFPA star:cards (as applicable to the private on-site fire sys:,.^.is). FIN'DIN'GS AND OVERRIMG 61DERATIONS Fontana Corners Speclf7c Plan 90-03 Page 2.3 We recommend U.L. listinhiFll approval (for fire service use') for mains, valves, and hydrants, used in the onvate on-site fire systems. K Water system reiiabiiity and rcaundancv must consider the potential for cart:quake or Mood, causing damage/failure to system;breaks in critical main/power failure. K ?e....a.cnr. re ^M:cction z'a:c. _uppl•. sha l rot",c . ..dent =s K-2= Fare ri ate. supply shall be protected in a . .anncr that :: '•yil] net c_ fled :or :cr esac ,Ur reses and thus be depleted. Storage systems shall be properly plumbed, valved, and remotely 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 flre 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 wafer tank trucks, if necessary, Juc to a water supply _ 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 goes not necessarily 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, ater 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 -salves shall be located at approximately 500' intervals, and be piaced with the philosophy of providing redundant routes of supply to all points. of an 'cpmved t,:pe Shall 'oe 330' :part .:1cn? roads. :. :CrS �.. r: r: �, •vith 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 -ach o.== and in between, to crovid° the spac;ni., C-`i-dc sacs _..rll a a r nt at or near V J �.-. have�r `• the bulb, as well as at the entrance and in between, if.iistance dictates. C FINDINGS AND OVERRIDING CONSIDER.NTIONS Fontana Corners Speciric Plan 90-03 Pale 25 K-3. Hvdr:;nts snail :ict cioJeik ,djoin it.-.;,:,arcs. .-'%dCqUaLc distam-c "-r,-)ni structures shall ',-.c pro%idled. K-34 Fire hydrants shall, be located at each Doint of access to a wildland area. K---5 Fire 'IN(iran's of..,n approve i tire. on M road. and on all other u-cnals anu` .,oillcictors. 'XiMIrc 10 -s I zIures ar,: d,ir.ssed ;l;crcon. on .rich are tot direcI U C C c s s e I c r c f r 0 1-,i. hail b e fco• amir'. C-11 .2ac.", for ,-c.s. sn'ould be localcd, -,.t inicrsc.,*,:'cns anc :n ..,?wcen. '.0 n,,rovwc Ln,,, sPlacing. K-36 If steel, cast iron, or ductile iron pipe are used, they must be internally lined and have exterior coatinur. Consider .1r,-eZjp_.:conditions in *.he Velocity locity of ilow in water mains must not L I be excessive. K-37 Water system design and flow calculations shall be supplied to Fire Department for approval. Calculation should model flows with pumps on and with pumps off, and with critical main out of sen-icc, to assure fire flow o all portions 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 systcm to another during an emergency. K-. 9 Firc h}(:.---rus shall *--,- :onncccd via a 4" or lamer line Off Z114C bOL101-1 01' Public S%vimminz pools, as a redundant source of lire protection water. Hydrant location shall be determined by the City Fire Department. K-40 Public fire hydrams shall be installed and conform to Fire Dcr)artmcnt/C;,tN,specifications and be verified by Water Department to meet required fire flow prior to combustible construction or storage. This includes fire hydrants at 1000' spacing along the nlcwly 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 czfforma-ric.- 711idelincs for reducinsi the risk associated with a vegetation fire exposing habitable structures, their outbuildings, and their exterior appurtenances, within the Paradise Hills Community, to an acceptable level. All -,truc*ur-.l protection is subject to review and approval by F:rc Department and Bui'"Jing Department. 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 "Hillside Bloundary 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 anywhere '.with slopes 3017 or greater. Level B may be used elsewhere. Specifically, required fire protection levels arc defined as: FINDINGS AND OVERRIDING CONSIDFRATTONS Fontana Corners Speciric Plan 90-03 P u,_,e 26 Lc%-c! Structures. -,,n,, For-ion c.; % hl is !,,,:aicd on a slope of 0C Tre"Icr. Dr is \kitilir. :,11c -,r-�a a I DC),,,c ifle or - . Hillside Boundary line. ::; identified .I :he time this report %v:js xriticn: and'or 7'j C,u rL,< LI! 71 C r < L m-n C r lutsi , i , Ot, c n L� -u L mojii-lcauc- ZO, nes. Leyci 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 ariv structures are proposed in these areas, they must have large lots, `Treatly intensified protection, and fuel modincation techniques beyond that proposed for "Level A" areas. Such protection features should be presented in a separate study by a fire consultant acceptable to the City and submitted for Frc Department, Forest Service, Building Department. and Food Control District approval. T1_I'l Sloccs and grading shall ccm-lv with City Fire Dc-artment -nnd Cite Engineer requirements. No <--,ctures shall be in narrow caneon mouths and 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, cl.--,-. or concrete- tiles. Any opcninuys at ends of roof covering must be fire-storpIcd. per UBC. K-45 The exterior finish in Level "A" areas shall be "Level A" materials as follows: o Those n.,ter;al-;; which are effective against severe fire exoosur.-s. Under such exposure, materials do not readily ignite, doe not carry or communicate fire, do not possess a flying brand potential, and do not require 117CCIUM maintenance to maintain resistance. Materials shall withstand the weather extremes experienced at this 7rojcc? site. The architect will be responsible for the specification of such ,na%,-`-is to Fir-, Department and Building Department saiisf:.,c-.c.-l. (,No shingles. light wood, plastic or other flammable materials). o Siding on structures shall not be of flammable construction. For example, exterior walls should ci-c!'crablv be stucco or masonry. Exo--cr ,-valls shall be Of approved one-hour ---nstr.;::ticn of their equivalent materials and construction, as approved by Fire and Building Departments to protect structures from exposure fire. The one- hour rating does not include glazed openings on !h,-;r size. `.Windows will be FINDINGS AND OVERRIDLIG`_SSIDERATIONS Fontana Corners Specific Plan 90-03 Page 2,7 double-pane ;!ass, to protect glazed opcnin<_s. Sliding glass doors shall be dual pane and 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 cantilevered undersides of habitable portions of strictures (i.e. ::ousc;, including I omns. balconies. cartileyered walls. floors, decks. ;xterier stairs. shall be one-^our rated, or have accroved fire sprinklers. Cantilevers shall have the same fire resistance as exterior walls. K-38 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) %vood or 1'/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, shall 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 rent. �. 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-gau2e welded or woven wire mesh scre-In with '/z" 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 structures. In areas cf severe :ire 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 arms-oval 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 . _NSIDERATIONS Fontana Corners Specific Plan 90-03 Page 28 K-56 Dwelling address shall be re!lc_:i.e on a contrasting background color, easily readable from the street upon which the structure fronts. Numbers shall be at least 4" high, readable from 1001, and comply with Cite standards. Addresses may be intcrnally illuminated, if they remain readable from street during power outages. Address numbers shall also be on curb, after paving is completed. K St^.:c:-Lres shall he a- _east 60' zcan. K R No combustible plumnbing or vcrns shall be allowed on the outside of structures. 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. 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 extrc:. cs experienced on the project site. The architect 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 mate;gals 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 orcferably be stucco or masonry. K-61 Glazing shall be double pane glass. K-62 Balconies, patio roofs, trellises, decks and other similar overhangs must e protected by approved ire sprink:ers, or one-hour fire resistive construction, or be of heap % timber with decking of 2" thick (nominal) wood or 11/2" 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. Contusion resistant '/_" mesh metal screen. FE DI\GS AND OVERRIDING ,NSIDFRATIO\S Fontana Corners Specific Plan 90-03 page D _. ",o tot attic :crtilators. Eave vents should be avoided, if possible. K-64 approved spark arrestors arc required in all chime-ys and stove pipes t_12-_rauge or woven wire mesh screen with :;_" openings). Arrestors shall be visible from the street. K-65 Dwelling address shall be ret:cctive on a contrastinL, backzround color, easil,. readable street to a Mist;nce of :ff, --^on wince structure rrc. :s. '\umcers Shall be compiv with City standards. \umbers may be intcrnal:v illuminated, if they rc.;.ain visible 'O-n street during power outages. address numbers shall aiso be on curb, alter paving is compietea. K-66 Structures shall be at least-0' apart. 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 :o the approval of the USFS). (Figures 39 and 40). The pad shall be 125' X 12f• ad shall be submitted to the U.S.F.S. for review. A fir.- 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 .ower (Level B) area of the project. K-69 Safety Zone. A 100' X 100' safety zone shall be provided in the northern area. This safer: 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 ti_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 r.-sidents of this subdivision, the fire protection elements must be complemented by a comprehensive vegetation management plan and program. The vegetation manag.-ment plan shall be completed prior 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 elemens of the plan. 7. Landscape and lighting district maintenanc.- program. 8. CC&R's on all lots regarding the risk and fire safe landscape acquirements. 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. •a, FINDINGS AND OVERRIDD;G NSIDERATIONS 1 Fontana Corners Specific Plan 90-03 Page 30 K-72 A -hiring plan on a large detailed map showing location of shnab and tree p',antinzs and density shall be submitted for review ty the Fire Department after project approval. K-73 Defensible Space Concept. Each structure shall be two irrigated planting zones. The first zone :rust extend outward from the structure's foundation 10 feet. In this zone only lire resistive, '.ow profile, drought adaptive plantings shall be allo•,ved. In this zone, some shrubs could be planted if they were isolated (patchy continuity) and limbed up. The next zone shall extend from 10 to 30 feet out from the foundation or to lot line, whichever is further. In this zone, trees and shrubs shall be dreug;,t-adactive and :ire resistive. Additicnall,:, trccs s;cuid, be limbeC up to separate ground vegetation from aerial canopies. Shrubs should be adequateiy 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 Badger and Sy canlore Canyons, a 300' fuel modification zone, beginning at outside edges of individual lot lines, shall be imposed to ensure that structures built in Planning Arca area are adequate',,.- 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 100' 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 Deparcnent 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 t � FINDrNGS AND OVERRIDrq( NSIDERATIONS Fontana Corners Specific Plan 90-03 Page 31 produce a hydrophobic soils. this could pose a serious fire/hoed sequence situation and Threat to strsc;ures in Badger Canyon drainage. Careful planning must occur if Structures are going to built in upper Badger drainage. The fuel modification zone design must also be carefully planned so that it does not contribute to potential erosion. K-77 Detailed Plans. Detailed ftrel modification and landscape plans shall be submilled after project approval for Fire Department, and Forest Service rcyiew and approval prior to construction. K-78 Homeowner Fire Safety Education Manual The o%vner shall produce a hernecwner fire 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 notify the occupant about fire prevention,wildland fire safety, vegetation management, and ememenc%, 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 hydrant 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 darker" indicating its location on the street or dive per City of San Bernardino standards. On private property, these markers are to maintained in good condition by the property owner. v 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 OVERRIDL\G SIDERATIONS Fontana Corners Specinc Plan 90-03 Page 32 .M. Water Services M-1 Water facilities must be designed and instailed in accordance with the reauirements and specification of the City of San Bernardino Municipal Water Department and San Bernardino County Department of Health. 1V1-2 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 :.rust be secured from the Cite Municipal Water Depanment 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 (j), address pipe insulation requirements. Insulation of water heating systems is also required. FINDINGS AND OVERRIDrgq NSIDERATIONS Fontana Corners Specific Plan 90-03 Page 33 O. Public Schools 0-1 Prior to recordation of the Final Map, 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 Mello-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: ' FINDINGS AND OVERRIDING SSIDERATIONS Fontana Corners Specific Plan 90-03 Page 34 i a. The monitor must be empowered to temporarily halt or re-direct excavation i equipment while fossils are being removed. The monitor shall be equipped to speedily collect specimens if they are encountered. I' 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. r 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 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" PARRS 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 t st 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. i z U� V Qy W W QOo(J NW V 7 . I f- . a.00001"", a 1 cc a. .I .... :: LL U. f a E U. a 1 U ' a a cr ATTACHMENT 114" S, 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.40 045'15"W., a distance of 283.26 feet; Thence S.15°55'15"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.51 046'15"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 91-07 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.00 053'43"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.45°06'1 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.89 034'04"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.70004'1 7"E., a distance of 161.64 feet; Thence S.88 008'58"E., a distance of 247.67 feet; Thence S.44 034'38"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 91-07 City of San Bernardino January 22, 1993 Page 3 Thence S.47124'1 8"W., a distance of 208.43 feet; Thence S.82'08'1 6"W., a distance of 178.47 feet; Thence N.80108'1 4"W., a distance of 142.17 feet; Thence S.46°51'20"W., a distance of 152.96 feet; Thence S.79 020'37"E., a distance of 186.49 feet; Thence S.44 014'18"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.46 056'14"E., a distance of 117.67 feet; Thence S.70004'1 7"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 91-07 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°27'39"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 ap 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.0501 0'52"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 3et 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 91-07 City of San Bernardino January 22, 1993 Page 5 Thence S.62 057'39"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.04 000'09"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.60 055'37"E., a distance of 424.80 feet; Thence S.87 017'00"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.59 035'34"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.04 000'09"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. ESCRIPTION PR ARED UNDER THE SUPERVISION OF: Enc 9-30-95 Z Z hen 'Malley Dat ` 4718 hen ASSOCIATES, INC. � CA�h SMO:kat 1eg:1eg:go8 0 REDLINED DRAFT DATED 5/29/0 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. Spee• bow This lire /x Reoerder'f Use DEVELOPMENT AGREEMENT between FONTANA CORNERS III and CITY OF SAN BERNARDINO 11110AM01 MOMILOP AGM ATTACHMENT 115" TAHLB OF CONTENTS Section Paoe 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.i 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 Svent 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 81*%A206%01 MORMO►.AGM i EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY 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 tlt%A 296%01 IMORWELO►.AOM i j. DEVELOP!!�I'r 11GA8ES�NT (Pursuant to Government Code Sections 65864 - 65869.5) THIS DEVELOPMENT AGREEMENT (-Agreement") is entered into on 1992, between FONTANA CORNERS III, a California limited partnershiY ("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 _omprehensive 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 Plnn, 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. I,"-MOWDEVELO►.AGM 1 J. City has found and determined that the execution of this Agreement is in the beat 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.Z "Agreement Date" is the date this Agreement is approved by the City Council. " "City" is the City of San Bernardino, California. 1,-g "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 •104 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 Ain excess of the minimum standards and requirements of the Ci; Development Code as of Agreement Date. supersede an rep ace such minimum standards AnSL requirements. To the extent any of the foregoing aze amended from time co time with the consent of Developer, th,_ evelopment Plan" shall include such matters as so amended. J .[-withs;:.• :3ing the immediately preceding sentence, if this Agreement is rm,p,i.ed 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 1:his Agreement is so amended. 1,2 "Developer" is Fontana Corners III, a California limited partnership, and its successors in interest to all or any part of the Property. 1,-k "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^gal 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. U91AIMA01RIORVELOVAGM 2 g -Project' b h n +e proposelanndevopnt edel sin gle ofamily Property as a multi-phased, residential community. 1s2 "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: , t neei_narion nescriD im Exit�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 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. J_,1 Benefirg to City. The benefits to City (including, without limitation, the residents of City) under his Agreement include, 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 residential coymmunity which will enhans the master-planned mage sing 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. I.Z 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 under this Agreement consistssofg the massurance that f Developer will r resere the right to develop the Project. 4. TntPrPst of Dev on r. Developer represents that Developer is the fee e)wner of the Property. 5. Bindinq 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. prniec-t as a Private U dertaking. 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 111VA116N01 RkOEV[LO►.AGM 3 regulating the development of private property by the owner of such property. 7. Te . 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 cnis 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 Develooer.Aoeveloper 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 dama_e 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—Z 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 a^rions are the ordinances and regulations of City adopted as of the Agreement Date. Upon submission by Developer of all apprcpriate 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 de-elopment set forth in this Agreement. City therefore agrees to the following: !'PIA 2WOMOEVELO►.AOM 4 No Conflicting EnactmetlSd• Neither the City Council enact an ordinance, or City nor any other agency of City snail applicable o the Project policy, rule, regulation or other measure app which relates to the rate, timing aneof the nProjecteore whicheis or construction of all or any p otherwise in conflict with the Project as described in this Agreement. ILI rnrent of Parties. in addition to and not in limitation of the foregoing, it is the intent of Developer and City to -he that no moratorium encing of the development or construction~of rate, timing or sequ all or any part of the Project and subdivision maps, building initiative or otherwise) affecting use permits, occupancy certificates or other entitlements t�shall a approved, issued or granted within City, or portions of City, all 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 p this Agreement. City agrees to coo this Agreement i Developer i in reasonable manners in order to keep and effect. 10.3 e-•�eern�ont Review. All subsequent review of development of the Project shall berovisions of Government Code conditions of this Agreement and the p Section 65865.4 and 65866. 11. General Dev-lcZmenr mf the Project. 11.1 Prnlact. 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 in accordance with the terms and conditions of this Agreement. Except as otherwise specified in this Agreement, the Development Plan shall control tae 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 provisior for reservation and dedication of land for public purposes and o:aer 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 develou 504 single-family residential dwelling units on the Pro pert- is sub ect to Develo er' s co Hance with all rovisions of the Develo ment Plan ncludin the Paradise Hill S ecitic Plan an the Con .itions o A roval i osed b city_ in connection with the approval o such Speci is P an. 1J,.2 ph'9ina and TiT*i�a of Develooment. The parties acknowledge that although Developer currently anticipates that the ver an Project will be phased )and constructed in at the ents o t time approximately twenty year Developer cannot predi=t when or the order in which Project phases will be developed. Such decisions depend upon numerous Factors "Thich are not within the control if Developer, such as maxKet orientation and demand, interest rates, competition and other similar factors. To the extent permitted by 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 int t ytad mixed-use master-planned single-family contemplated by the Development Plan.receive Developer shall be entitled to apply building permits, occupancy vesting tentative tract maps, certificates and other entitlements to use at any time, in as on is expeditious a manner as possible provided tha Plant such app made in accordance with the Development CI..GM 5 12.3 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 :he right to make under this Agreement relating to the Project, �r 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 Mechanis . 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 1982•, Developer may, at its sole election, petitisn the City Council of City to establish a community facilities district including the Property for the plarpose of acquiring, constructing and financing through the sale of bonds the acquisition and construction of certain public facilities which are VIVA2WO1MOEVELOP QOM 6 I 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•S Consistency Between This Agreement and Current Laws. City represents that there are no rules, regulations, ordinances or cff':ial policies of City enforced as of the date of execution of thi= Agreement that would interfere with the completion or use of the ?roject. 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 11MAZIP01MOEVEL.OP.A0M 7 1 • 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. RulP4 Regulations and nttir{al 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 SubQPrnaent 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 oL its reasonaule u�ocretion, 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) VR1A1bXOINNOEVELOP.AGM 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 co 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 agre-:�'..ng to the terms of this Agreement and will be investing even more substantial time and resources in implementing the Project in reliar.: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. Nctwithstanding 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. UNIA2WOMDEVELOP AGM 9 i 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 excepr as provided in Section 18.3 below. 18.3 Force Maleure. 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: Citv of San Bernardino 300-N. "D" Street - 6th Floor San Bernardino, California 92418 Attn: 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 Richt 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 ind 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 VR%A I86%0I MOEVELO►.AOM :.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 :a 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 Agreemen= 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 tais 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 MortTaae 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 Mortgage 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 4RtAM01 1t10EVn0P 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 =he remaining cure period allowed such party under this Agreement. (d; Any Mortgagee who comes into possession of all or any portion of tha 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 =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. Several�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 oach 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. 11RU796101 W DEVELOP ADM 12 The parties have executed this Development Agreement on the date and year first written above. FONTANA CORNERS I1I, a California limited partnership By: Its: General Partner "Developer" CITY OF SAN SERNARDINO, 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 I/21A2 VIRTEVELOVAUM 13 STATE OF CALIFORNIA ) es. 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 "aneral 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 IMA2M01111OSV FLOW AGM 14 LEGAL DESCRIPTION OF PROPER All that certain real property located in the Ci~__.� Df 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 74 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' FAST 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 SASE 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 CeR"!ER 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. !I , -:NT OF BEG1NNiNG. PARCEL NO, 3 : THE NORTH 1/2 OF THE SOUTHWEST 1/4, AND THE SOUTHEAST 1/4 OF THE SOUTHWES2 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) IMA29MIMEVELOt 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, 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 DEC. 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: BEGIMING 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, 40.0 FEET TO THE POINT OF BEGINNING. PARCEL N0, 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 THE TRUE POINT OF BEGINNING; THENCE NORTH 82 DEG. 11 ' 400 EAST, -20.00 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 TOTS 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 DEC. WEST ALONG THE SO= '-:NE OF SAID (701MID"mr"T --rc i S •a —m 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) 21MAZ OWDEVELOP 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 BE;.—ARDI210, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT �)F SAID LAND IAPPROVED BY THE SURVEYOR GENERAL, DATED JUNE 24, 1899. (EXHIBIT "A") (Page 3 of 3) MA266101 MCIVELOVAGM 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) MA 204%01 RIDE V ELOVAOM SCHEDULE OF APPL•I ABt.R 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, -entative 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 tees, encroachment permits, and map review fees. 4. Sign permit review fees. (EXHIBIT "CO) (Page 1 of ) NRW&6101 RIDEVE1.0►.AC A - �4 REIMBURSE== AGRMM= FOR CONSTRUCTION OF PUBLIC IMPROMIENTS THIS AGREEMENT ("Agreement") is made this day of 1991 by and between the City of San Bernardino, a m~.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 CZ develupers 4, the nenefitting 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) Uf AA 296101A%DSVELOP.AGM TERX9 A. Desicn 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 Pate 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 "D") (Page 2 of 9) UMA 2WO1 MOEVELO►.AOM • 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, 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, indeamify 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 Cicy. (EXHIBIT "D") (Page 3 of 9) IMA326%01*%DEVELOP AGM t , , 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 r 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. 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 Recuirements. Developer shall: i. Prior to taking any actions under this Agreement, zurnisn City witn 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 "00) (Page 4 of 9) I MA22MO MOEVELOP.AOM 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 r..a �Wn. 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. ft. SomDilance with A2n11cahle 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) V NAA 716%01 IM D!V ZWP.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 &t 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 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 ol— �...,,.� •, ._.�___ 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) 61MA2$4%01 W OEVELOVAOM 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 - 1 -4nn and final Accontanc-P of the 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) 14NA 316M MI DE V ELO►.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: Ci tv 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) 11MA 216%01 R%DP V FLOP.QOM 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. City f San Bernardino, Y Fontana Corners III, a Municipal corporation a California limited partnership Its: City Administrator Its: General Partner ATTEST: 'Developer* City Clerk "City" (EXHIBIT "D") (Page 9 of 9) V R%A2$6%01 410EVELO►.AOM MEMORANDUM TO: Mayor and Common Council City of San Bernardino FROM: Dr. James L. Mulvihill , AIC Director, MUP Program California State University, S n Bernardino SUBJECT: Paradise Hills Specific Plan ( 90-03 ) , General Plan Amendment 91-07 , and Development Agreement ( 91-03 ) CC : File DATE: February 1 , 1993 I have also addressed the issues associated with these documents in several meetings of the Development Review Committee ( DRC ) , the Planning Commission. I have written several lengthy memorandums regarding these documents ; one dated April 19 , 1992 , appears in the Final EIR. The issues I raise in these memorandums have not been substantively addressed. My central concern is this, the City is being asked to enter into an extremely unfavorable development agreement. The language of the Development Agreement (DA) cannot be more clear: 1 ) Vested Rights : The document states, "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 and the Conditions of Approval imposed by City in connection with the approval of such Specific Plan ( Development Agreement ( 91-03 ) , Section 11 . 1 , p. 5 ) 7y / 07-06-1992 10:30 714 88CS294 CSU San Bernardino P.O2 CALIFORNIA STATE UNIVERSITY The Cnll(ornia SAN SERNARDINQ Stntc L'niue;vity July 6, 1992 Mr. Mike Finn Planning Department City of San Bernardino 300 North I'D" Street San Bernardino, CA 92401 Dear Mr. Finn: Mil IVF.R91TY I am writing with reference to the Paradise Hills project proposed for the area to the north of California state RELATIONS University. I understand that it will be reviewed by the Planning Commission on July 7. ��eso•aoo� on numerous occasions, most recently on June 17, 1992 , Mr. Steve Dallinan and his associates have met with Cal state President Anthony Evans and the university vice presidents to review the project plans, particularly with regard to how they might affect the university. It is our view that the project, as currently proposed, has the potential to enhance and upgrade the area surrounding the university. The mix of housing types along with many planned park-like areas would seem to address a special housing need in the community. We have appreciated the opportunity to be informed of the project ' s progress at regular intervals and we wish to commend Mr. Dallman and his associates for their efforts to communicate with the university. sincerely, Judith M. Rymer Vice President cc: David DeMauro, Vice President for Administration and Finance 5500 University Parkway, San Bernardino,CA 92407.2397 //�` 'ZuDrecionci CSS NCCP 'Planning Unit Focus Mco . ...... .. ........ ...... .... , � BERNARD/NO CO. . ._._.-.-._.-._._._._._._. .j _.. :a :r.fa v':::a:•:::'.i _ :rte...: ......._.Z , �uCreCICn01 cC.:S Areas ^:.:i ...:. . 1 r-^:::..:'. ,ontain runCt.Orinq I CCI units 5 '-,:� I-°•°-•-•-•-•_' 'r - -._._._ RIVERSIDE CO. b 0 001 SAN D!£C0 CO. !ion oonserva~on vaiue. 3enermly .............. sn .,ou,C Oe apnea as incividual NCC- -0 suoreclonci o cnnmg units. Dut may ce ::� 74 t :::{... o.vlaea .n[o smailer units to ass st 5 olonnina Cnc .r^Diementation. ;ne fast ?}may �-' ::✓ atait of he !Centity numoer snows :re ? orlmcry rccus area designation ane Ine aec:mai port r�tiects potential '� '(3rMmSt.^a0ve SaCClviSion of t^e :rec. \80. 'J e Sata:i to reos i !Sion Cs of ;uCS:onti0l Cjs raDitC', volu2 .•g�0. snouiO oe O,anr.ea :n ,onCerr Njtn ,;re Of - the ?cus Creas. � - Uot„x Arec -Jw? 3C?^ cr?as surrounCinC .,_.:s cr :.� sCte,nte trees ^ncv incluae : ^coitot. iancl witn value Cs corridors ern a,lmt Duffer for 55 Cna may ncivae rao,nai 10.t .......... ommunities Cnserva for value. ' 10 2 :� 0I2: 'e -oCuS --no SCteilite areas ,Ire CCSea on Bvo:uCticn of / oasml saae sCruo vegetation cpmoonents ara aces not ' °0°° =0°°° 300°° R reflect distrioution of sensitive species. -his is not a mac 0t Css haoitat. between City and Developer is that of a government entity 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 fifteen (15) 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: 13MA286\01R\DEVELOP.AGM 4 g / s 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 Final Environmental Impact Report (the "EIR" ) , the EIR Mitigation Monitoring and Reporting Program, Paradise Hills Specific Plan, and the Conditions of Approval imposed by City in connection with the approval of such Specific Plan. 11 .2 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 fifteen (15) year time frame, at the present time Developer cannot predict when or the order in which Project phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors . To the extent permitted by the Development Plan and this Agreement, Developer shall have the right to develop the Project in phases in such order and at such times as Developer deems appropriate within the exercise of its subjective business judgment so long as the Project is constructed as an integrated mixed-use master-planned single-family residential community as contemplated by the Development Plan. City agrees that Developer shall be entitled to apply for and receive tentative tract maps, vesting tentative tract maps, building permits, occupancy certificates and other entitlements to use at any time, in as 13\R\A286\01R\DEVELOP.AGM 5 yr.. CITY OF SAN BERNARDINO Planning and Building Services Department Interoffice Memorandum TO: Mayor and ° �pmon Council FROM: Al Bough JDirector, Planning and Building Services SUBJECT: Paradise Hills Specific Plan (Specific Plan No. 90-03, General Plan Amendment No. 91-07 and Development Agreement No. 91-03) , Agenda Item No. A-0 DATE: February 15, 1993 COPIES: Rachel Clark, City Clerk; James Penman, City Attorney; Shauna Clark, City Administrator ------------------------------------------------------------------- Staff recommended conceptual approval of the Resolution which certifies the EIR, adopts the Findings and Statements of Overriding Consideration, adopts the Mitigation Monitoring/Reporting Program, approves the Specific Plan, General Plan Amendment and Development Agreement. The motion also included a continuance until March 22, 1993 for final action, after recommended changes had been completed. The project proponents have met/talked with staff several times (including this morning) , since the February 1, 1993 Council meeting to address the pending items. At this time all of staff's concerns have been addressed in a satisfactory manner as follows, and per the attached. Conditions of Approval, Revised 2/15/93 . Condition Nos. 9, 10 and 17 have been revised to incorporate the applicants' concerns. Condition No. 22 has been added to exclude other than single family detached in the Specific Plan. Resolution, Revised 2/15/93 . The resolution has been revised (pages 3 and 4) to include today's Mayor and Common Council date. Development Agreement, Revised 2/12/93 . The Development Agreement has been revised to address staff's concerns. Specifically, language has been added to Sections 1.8, 11. 1 and 11.7 . The applicant has agreed to complete all of the "clean-up" items in the Specific Plan as outlined in the Conditions of Approval. The applicant will return with a final copy of the Specific Plan within 60 days of approval. Staff will review and accept the final document within 30 days of receipt. At that time, the applicant will submit a camera-ready copy of the Specific Plan and staff will { r Paradise Hills February 15, 1993 Page 2 distribute copies as appropriate. If any inconsistencies are noted, staff will return to the Mayor and Common Council for clarification/resolution. As a result of the meetings and discussions, a substitute motion is presented for your consideration. Recommended Substitute Motion: That the hearing be closed and the resolution be adopted which certifies the EIR, adopts the Findings and Statements of Overriding Consideration, adopts the Mitigation Monitoring/Reporting Program, approves the Specific Plan, General Plan Amendment and Development Agreement and that the applicant submit a final Specific Plan document in 60 days in compliance with all of the Conditions of Approval for review and approval by the Director of Planning and Building Services. t EXHIBIT "B" REVISED 2-15-93 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. T ' v Exhibit "B" Contiued REVISED 2-15-93 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 consistent with the number of allowable available for transfer as established by the Specific Plan, 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 Gede Agreement 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. " T 0 t . t Exhibit "B" Continued REVISED 2-15-93 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. epee the meeha i the Mayer and emmen—Geuneil w 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. r t ' Exhibit "B" Continued REVISED 2-15-93 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. 22 . The Specific Plan shall be revised to permit single-family detached units only, in both the Foothill Residential and Hillside Residential areas. 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 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 i I 1 effect on the environment and thus warranted the preparation of an 2 Environmental Impact Report (EIR) pursuant to the California 3 Environmental Quality Act (CEQA) ; and 4 F. WHEREAS, a Draft Environmental Impact Report was prepared 5 to address Specific Plan No. 90-03 , General Plan Amendment No. 91- 6 07 and Development Agreement No. 91-03 other alternatives' impacts 7 in compliance with CEQA and local regulations; and 8 G. WHEREAS, the Draft EIR was made available to the public, 9 responsible agencies and other interested persons for their review 10 and comment from July 26, 1991 to September 9, 1991, as required by 11 CEQA; and 12 H. WHEREAS, verbal and written comments were received on the 13 Draft EIR; and 14 I. WHEREAS, these comments were responded to both orally and 15 in writing as required by CEQA; and 16 J. WHEREAS, the Planning Commission held a public workshop 17 on September 17, 1991 to receive additional comments on the Draft 18 EIR; and 19 K. WHEREAS, the Planning Commission conducted noticed public 20 hearings on May 5, 1992 , August 4, 1992 , and November 17 , 1992 in 21 order to receive public testimony and written and oral comments on 22 the EIR, Specific Plan, General Plan Amendment, and Development 23 Agreement; and 24 L. WHEREAS, the proposed Mitigation Monitoring/Reporting 25 Program was reviewed by the Planning Commission in compliance with 26 CEQA. 27 28 2 t f ' 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 February 15, 1993 and fully 10 reviewed and considered the Final EIR, the Mitigation 11 Monitoring/Reporting Program, the Findings and Statements of 12 Overriding Consideration, the Specific Plan, the General Plan 13 Amendment, the Development Agreement, the Planning Division staff 14 reports and the recommendation of the Planning Commission; 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 Final Environmental Impact Report prior to 24 adopting the Paradise Hills Specific Plan (SP NO. 90-03) , General 25 Plan Amendment No. 91-07 , and Development Agreement No. 91-03 . The 26 Final Environmental Impact Report and all the evidence and 27 information contained therein is attached hereto as Attachment 1 28 3 i 1 (Exhibits D, E, F, G, and G-1 of the February 1, 1993 and February 2 15, 1993 Mayor and Common Council Staff Report) and incorporated 3 herein by reference. Attachment 1 consists of the following 4 documents: 5 Exhibit D - Draft Environmental Impact Report (July 1991) 6 Exhibit E - Draft Environmental Impact Report Technical 7 Appendicies (July 1991) 8 Exhibit F - Final Environmental Impact Report 9 Mitigation Monitoring and Reporting Program 10 Exhibit G - Appendix G to Final Environmental Impact Report 11 Exhibit G-1 - Biology Correspondence; 12 (C) The Findings contained in the Statements of Overriding 13 Consideration with respect to the significant impacts identified in 14 the Final EIR are true and correct, and are based upon substantial 15 evidence in the record, including documents comprising the Final 16 EIR. The Findings and Statements of Overriding Consideration are 17 attached hereto as Attachment 2 and are incorporated herein by 18 reference. 19 (D) The Final Environmental Impact Report, the Mitigation 20 Monitoring/Reporting Program and the Findings and Statements of 21 Overriding Consideration reflect the independent review and 22 analysis and the independent judgement of the City of San 23 Bernardino. 24 (E) The Final EIR has identified all significant 25 environmental effects of Specific Plan No. 90-03 , General Plan 26 Amendment No. 91-07 , and Development Agreement No. 91-03 , and 27 there are no known potentially significant environmental effects 28 4 1 not addressed in the Final EIR. 2 (F) Although the Final EIR identifies certain significant 3 environmental effects that would result if Specific Plan No. 90-03 , 4 General Plan Amendment No. 91-07, and Development Agreement No. 91- 5 03 are adopted, all significant effects that can feasibly be 6 avoided or mitigated will be avoided or mitigated by the 7 implementation of the mitigation measures as set forth in the 8 Mitigation Monitoring/Reporting Program for the Final EIR. 9 (G) Potential mitigation measures and project alternatives 10 not incorporated into or adopted as part of the Specific Plan, 11 General Plan Amendment, or Development Agreement were rejected as 12 infeasible, based on specific economic, social or other 13 considerations as set forth in the Findings and Statements of 14 Overriding Consideration. 15 (H) The Mayor and Common Council have given great weight to 16 the significant unavoidable adverse environmental impacts. The 17 Mayor and Common Council find that the significant unavoidable 18 adverse impacts are clearly outweighed by the economic, social and 19 other benefits of the Specific Plan, the General Plan Amendment, 20 and the Development Agreement as set forth in the Findings and 21 Statements of Overriding Considerations. 22 SECTION 3 . FINDINGS - SPECIFIC PLAN. 23 BE IT FURTHER RESOLVED by the Mayor and Common Council of the 24 City of San Bernardino that: 25 (A) Specific Plan No. 90-03 , Paradise Hills, is consistent 26 with the General Plan, in that it refines and implements General 27 Plan objectives and policies applicable to the project site. 28 //// 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 development in that the policies established by the Plan are 16 intended to encourage high quality development of a nature 17 consistent with surrounding developments. 18 (E) The Specific Plan will contribute to a balance of land 19 uses so that the local residents may work and shop in the community 20 in which they live in that the plan proposes residential land uses. 21 The site is designated by the General Plan for residential land 22 uses, and the theoretical maximum number of units obtainable on the 23 site does not change. 24 (F) Specific Plan No. 90-03 , Paradise Hills, is attached as 25 Attachment 3 (Exhibit C of the February 1, 1993 Mayor and Common 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 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. 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 1 0 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 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 By: LAIV�_ 28 � 10 $�SINE DRAFT DATED,2/11/ 3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL T0: 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 II'R'A`8o 01R'DEVELOP.AGM i Lu lc , I1, ♦V AV u�.,.a,-in"i�, vrmaLA,Jnvnvc rhA NU. 114e14 I ( 1U Y. U3 IT-MLE 0Z Section Pale 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 Exhibits 3 3 Mutual Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 Interest of Developer. . . . . . . . . . .. . . . . . . . . . . . . . . . . . 5 Banding 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 17 Institution of Legal Action. . . . . . . . . . . . . . . . . . . . . . 9 18 Waivers and Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 19 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 10 20 Attorneys 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 13 11 R'.4'_86'01 R,DEV ELOP.AGM 8 "Project" is the proposed development of the Property as a multi-phased, inaster-planned single family residential community as described in the Paradise Hills Specific plan. ~�� 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 Deacription 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 Ben fits o Cit . 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 Ben_ efits_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. S . Binding E£fegt 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 1:1 A.R6 Clk OEVELOP.AGNT 3 FES-12-93 FRI 10:20 GRESHAM,VARNER,SAVAGE hHA NU. t14c,i4111U r, uo 1Q .2 No Conflicting,Enactmente . 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 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 Prgj ect. While this Agreement is in effect, Developer shall have a vested right to develop the Project in accordance with the terms and conditions of this Agreement, and City shall have the right to control the development of the Project in accordance with the terms and conditions of this Agreement. Except as otherwise specified in this Agreement, the Development Plan shall control the overall design, development and construction of the Project . The permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, the provision for reservation and dedication of land for public purposes and other terms and conditions of development applicable to the Property shall be those set forth in the Development Plan. The parties hereto acknowledge that Developer' s vested right to develop 504 single-family residential dwelling units on the Property is subject to Developer' s compliance with all provisions of the Development Plan, including the Paradise Hills Specific Plan Final Environmental impact Report (the "FIR") , the EIR mitigation Monitoring and Reporting Pro ram, Paradise Hills 9pecilic Plan, an `Eh—e on tlons 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 1 LU 1L Vd 1 Ill v.J facilities district including the Property for the purpose of acquiring, constructing and financing through the sale of bonds the acquisition and construction of certain public facilities which are necessary to meet increased demands placed on City as a result of the development of Developer' s Property. Alternatively, or in addition thereto, Developer may request that City initiate and complete proceedings under the Municipal Improvement Act of 1911, the Municipal Improvement Act of 1913 , the Improvement Bond Act of 1915 , the Landscaping and Lighting Act of 1972 , or any and all other available financing. mechanisms to provide public conduit financing for the constrction 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,; (a) Applicable Fees payable to City shall be paid at rates appli able on the date said fees are otherwise due and payable; and (b) the City may, without the prior written consent of Developer, impose assessments_ or fees applicable to the Project which are: (i) of general application to all single famiiy residential property situated in the City, i. e. City-wide assessments or fees; and (ii) not ,specifically designed to apply to the Pro ect to the exclusion of other single tamily residential property then situated in the City. 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 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 6 FONTANA CORNERS III and CITY OF SAN BERNARDINO 12\R\A286\01 R\DEVELOP.AGM r TABLE OF CONTENTS Section Paae 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 12\R\A286\01 R\DEVELOP.AGM i EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY 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 i i F "r i I 12\R\A286\0l R\DEVELOP.ACM 11 0 { 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 "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 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. 12\R\A286\01 R\DE V ELOP.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 . 12\R\A286\01WDEVELOP.AGM 2 1. 8 "Project" is the proposed development of the Property as a multi-phased, master-planned single family residential community as described in the Paradise Hills Specific Plan. 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 12\R\A286\01 R\DEVELOP.AGM 3 C between City and Developer is that of a government entity 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 de-:Telopment 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: 12\R W 286\01 R\DEV ELOP.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 th.-;5 Agreement, and City shall have the right to control the development of the Project in accordance with the terms and conditions of this Agreement . Except as otherwise specified in this Agreement, the Development Plan shall control the overall design, development and construction of the Project. The permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, the provision for reservation and dedication of land for public purposes and other terms and conditions of development applicable to the Property shall be those set forth in the Development Plan. The parties hereto acknowledge that Developer' s vested right to develop 504 single-family residential dwelling units on the Property is subject to Developer' s compliance with all provisions of the Development Plan, including the Paradise Hills Specific Plan Final Environmental Impact Report (the "EIR" ) , the EIR Mitigation Monitoring and Reporting Program, Paradise Hills Specific Plan, and the Conditions of Approval imposed by City in connection with the approval of such Specific Plan. 11.2 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 12\R\A286\O1R\DEVELOP.AGM 5 expeditious a manner as possible provided that such application is made in accordance with the Development Plan. 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 12\R\A286\01 R\DEVELOP.AGM 6 facilities district including the Property for the purpose of acquiring, constructing and financing through the sale of bonds the acquisition and construction of certain public facilities which are necessary to meet increased demands placed on City as a result of the development of Developer' s Property. Alternatively, or in addition thereto, Developer may request that City initiate and complete proceedings under the Municipal Improvement Act of 1911, the Municipal Improvement Act of 1913 , the Improvement Bond Act of 1915, the Landscaping and Lighting Act of 1972 , or any and all other available financing mechanisms to provide public conduit financing for the construction of public improvements on the Property. If so requested by Developer, City shall cooperate with Developer and use its best efforts in taking all steps necessary to cause the community facilities district or other entity to issue bonds for such purposes . 11. 6 Consistency Between This 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; (a) Applicable Fees payable to City shall be paid at rates applicable on the date said fees are otherwise due and payable; and (b) the City may, without the prior written consent of Developer, impose assessments or fees applicable to the Project which are: (i) of general application to all single family residential property situated in the City, i.e. City-wide assessments or fees; and (ii) not specifically designed to apply to the Project to the exclusion of other single family residential property then situated in the City. 11. 8 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 12\R\A286\O1R\DEVELOP.AGM 7 respect to any public improvement or facility designed, constructed or installed by Developer, there exists Benefitting Properties; or (ii) Developer is entitled to reimbursement pursuant to City ordinances, resolutions and policies, e.g. , reimbursement for certain water, sewer and storm facilities . D. City shall, from time to time, at the request of Developer and at Developer' s expense, cause an EBZ Study with respect to one or more of the Facilities to be prepared and, after review and acceptance by the City of the EBZ Study, shall enter into Reimbursement Agreements with Developer with respect to the Benefitted Properties identified in such Study. 12 . Rules 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. 12\R\A286\01 R\DEVELOP.AGM 8 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) 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 t1iat, 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 12\R\A286\01 R\DE V ELOP.AGM 9 j agreements herein, to enjoin any threatened or attempted violation hereof, to recover damages for any default, or to obtain any other remedies consistent with the purpose of this Agreement . Any such legal action shall be brought in the Superior Court for San Bernardino County, California. 18 . Waivers and 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 12\R\A286\01R\DEVEL0P.AGM 10 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 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 with Developer and representatives of such Mortgagees to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of all or any portion of the Property shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on all or any portion of the 12\R\A286\01 R\DEVELOP.AGM 11 Property made in good faith and for value, unless otherwise required by law. (b) Any Mortgagee of a mortgage or deed of trust encumbering all or any portion of the Property which has submitted a request in writing to the City in the manner specified herein for giving notices shall be entitled to receive written notification from City of any default by Developer in the performance of Developer' s obligations under this Agreement. (c) If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Developer under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement . (d) Any Mortgagee who comes into possession of all or any portion of the Property, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer' s obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City' s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 21 of this Agreement. 27. Severability of Terms . If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to enforce. 28 . 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 . 12\R\A286\01 R\DEV ELOP.AGM 12 32 . Effect on Title. Developer and City agree that this Agreement shall not create an encumbrance on any portion of the Property which is sold to an ultimate user of all or any portion of the Property. The parties have executed this Development Agreement on the date and year first written above. FONTANA CORNERS III, a California limited partnership By: Its : General Partner "Developer" CITY OF SAN BERNARDINO, a municipal corporation By: W.R. Holcomb, Mayor "CiLy" 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: 12\R\A286\01 R\DEV ELOP.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 12\R\A286\01 R\DEVELOP.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 ' WE6'P, 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 "A" ) (Page 1 of 3) 12\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, PANGE 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 "A" ) (Page 2 of 3) 121R\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) 12\R\A286\01 R\DE V ELOP.AGM 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) 12\R\A286\0l R\DE V ELOP.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 _) 12\R\A286\01 R\DE V ELOP.A GM 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" atta ,hed 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 partlof 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) 12\R\A286\01 R\DEVELOP.AGM 0 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 reazonably 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 tha 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 "D" ) (Page 2 of 9) 12\R\A286\O1 R\DEV ELOP.A GM 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 4_ijury 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 "D" ) (Page 3 of 9) 12\R\A286\01 R\DE V ELOP.A GM 2 . Developer shall require all persons doing work on the Improvements, including their contractors ar- 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) 12\R\A286\01 R\DEVELOP.AGM r: t 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) 12\R\A286\01 R\DEV ELOP.AGM f l 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 "D" ) (Page 6 of 9) 12\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 Develop_-' 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) 12\R\A286\01 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 conta-.ned herein. (EXHIBIT "D" ) (Page 8 of 9) 12\R\A286\01 R\DE V ELOP.A GM r 3 f r 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: w By: "�" F, (EXHIBIT I'D" ) (Page 9 of 9) 12\R\A286\01 R\DEV ELOP.AGM + 7 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 a 10/R\A286\01 R\DEV ELOP.AGM Mr t' C; TABLE OF CONTENTS Section Pacte 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 it 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 10/R\A286\01R\DEVEL0P.A0M i T 7 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 10MA286\01RWEVELOP.AOM 11 t 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 "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 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. 10/R\A286\O1 R\DEVEL.OP.AGM 1 I 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 . I O/R\A286\01 R\DE V ELOP.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 10/R\A286\O1 R\DEVELOP.AOM 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\O1R\DEVELOP.AOM 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. 10/R\A286\01R\DEVELOP.AGM 5 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; 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 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 10/R\A286\01R\DEVELOP.AOM 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 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\01 R\DEV ELOP.AGM 7 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) 10MA286\01R\DEVELOP.AGM 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 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. I O/R\A286\01 R\DEVELOP.AGM 9 0 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\01R\DEVEL0P.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 I O/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 "Al' 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. 101RW286\01RWEVELOP.AGM 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: 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: 10MA286\01 RWEVELOP.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\DEVELOP.AGM 14 ,L.�..rrrrrrr 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 "A" ) (Page 1 of 3) 10/R\A286\01 MEVELOP.AGM E 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 "A" ) (Page 2 of 3) 10/R\A286\01 R\DEVELOP.AOM 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 RWEVELORAGM 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\DEVELOP.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\O1 R\DEVELOP.AOM r*111 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 "Al' 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/R1A2&6101 R\DEVELOP.AGM err+ 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 "D") (Page 2 of 9) 10MA286\01 MEVE.OP.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 ''D") (Page 3 of 9) 10MA286101 MDEVELOP.AOM � s 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) 101MA286M MUIEVELOP.AGM e • 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) 10/R\A2&6\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 seg. , 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 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. AD-Proval 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 I'D" ) (Page 7 of 9) 10WA286\01MDEVELOPAGM 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) 10/R\A2&6\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 RWEVELOP.AOM