HomeMy WebLinkAbout2017-2271
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RESOLUTION NO. 2017-227
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING A DEVELOPMENT IMPACT FEE
CREDIT AGREEMENT WITH RIDGE DEVELOPMENT COMPANY, LLC, FOR THE
RIDGE SAN BERNARDINO ONE PROJECT AT PALM AVENUE AND CAJON
BOULEVARD FOR PUBLIC IMPROVEMENTS TO CAJON BOULEVARD
ADJACENT TO THE PALM AVENUE AND BNSF GRADE SEPARATION
WHEREAS, Ridge Development Company, LLC, ("Developer") owns approximately
38.4 acres of real property located within the City of San Bernardino at the intersection of Palm
Avenue and Cajon Boulevard adjacent to the Palm Avenue/BNSF Grade Separation Project
("Property"); and
WHEREAS, Developer has requested from City certain entitlements and/or permits for
the construction of improvements on the Property, including the establishment and operation of
two (2) industrial buildings containing approximately 392,983 square feet (Building 1) and
approximately 326,199 square feet (Building 2) along with the construction of the required on-
site and off-site improvements, on two (2) separate parcels containing a combined total of
approximately 38.4 acres ("Project"); and
WHEREAS, City requires Developer to pay certain development impact fees ("DIF") for
the purpose of defraying all or a portion of the cost of public improvements, public services, and
community amenities related to the Project; and
WHEREAS, under Section 3.27.140 of the San Bernardino Municipal Code the Mayor
and City Council may issue DIF credits to the Developer who constructs or donates certain public
improvements to reduce Developer's DIF obligation; and
WHEREAS, under Section 3.27.150 of the San Bernardino Municipal Code the Mayor
and City Council may authorize the reimbursement to the Developer if the Developer constructs
public improvements that, among other things, benefits the public generally rather than
Developer's property; and
WHEREAS, Developer desires to construct certain public improvements that would be
funded by the DIF Program ("DIF Improvements") and obtain DIF credits or reimbursements
from the City; and
WHEREAS, the DIF Improvements, described generally as street, curb and gutter,
sidewalk, street lights, and utility improvements to Cajon Boulevard, adjacent to the Palm
Avenue/BNSF Grade Separation Project, along the frontage of the BNSF Transcontinental
Railway and Metropolitan Water District of Southern California properties is necessary to
provide basic services to the entire City by improving regional circulation at the Palm
Avenue/BNSF Grade Separation and does not directly serve the Project.
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NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AS FOLLOWS:
SECTION 1. The City Manager is hereby authorized and directed to execute on behalf
of the City the Development Impact Fee Credit Agreement ("Agreement") attached hereto as
Attachment "1" and incorporated herein by this reference as though set forth in full.
SECTION 2. The City Manager is hereby authorized to execute on behalf of the City a
DIF Reimbursement Agreement on the form set forth in Exhibit "D" to the Agreement if the
requirements of Sections 14.2 and 14.4 of the Agreement and Section 3.27.150 of the San
Bernardino Municipal Code are met.
SECTION 3. The authorization described in Section 1 of this Resolution shall expire
and be of no further effect if the Agreement is not fully executed by all parties and returned to the
Office of the City Clerk within sixty (60) days of the passage of this Resolution.
SECTION 4. The authorization described in Section 2 of this Resolution shall expire
and be of no further effect if the DIF Reimbursement Agreement is not fully executed by all
parties and returned to the Office of the City Clerk within ninety (90) days of the Developer
recording the Notice of Completion pursuant to Section 14.3 of the Agreement.
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RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING A DEVELOPMENT IMPACT FEE
CREDIT AGREEMENT WITH RIDGE DEVELOPMENT COMPANY, LLC, FOR THE
RIDGE SAN BERNARDINO ONE PROJECT AT PALM AVENUE AND CAJON
BOULEVARD FOR PUBLIC IMPROVEMENTS TO CAJON BOULEVARD
ADJACENT TO THE PALM AVENUE AND BNSF GRADE SEPARATION
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 15th
day of November 2017, by the following vote, to wit:
Council Members:
AYES
MARQUEZ
X
BARRIOS
X
VALDIVIA
X(M)
SHORETT
X(S)
NICKEL
X
RICHARD X
MULVIHILL X
NAYS ABSTAIN ABSENT
George Hanna, CMU, City Clerk
The foregoing Resolution is hereby approved this 15'�' day of November 2 17.
R. Carey D• vis, Mayor
City of W Bernardino
Approved as to form:
Gary D. Saenz, City Attorney
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RESOLUTION NO.2016-063-D/ERC
A RESOLUTION OF THE DEVELOPMENT AND ENVIRONMENTAL REVIEW
COMMITTEE OF THE CITY OF SAN BERNARDINO, CALIFORNIA ADOPTING
THE ADDENDUM TO THE ENVIRONMENTAL IMPACT REPORT
(CALIFORNIA STATE CLEARINGHOUSE NO. 90020908) AND APPROVING
DEVELOPMENT PERMIT TYPE -D 16-19 TO ALLOW THE DEVELOPMENT,
ESTABLISHMENT, AND OPERATION OF TWO (2) INDUSTRIAL BUILDINGS
CONTAINING APPROXIMATELY 325,920 SQUARE FEET (BUILDING 1) AND
APPROXIMATELY 392,273 SQUARE FEET (BUILDING 2), ALONG WITH THE
CONSTRUCTION OF THE REQUIRED ON-SITE AND OFF-SITE
IMPROVEMENTS, ON TWO (2) SEPARATE PARCELS CONTAINING A
COMBINED TOTAL OF APPROXIMATELY 38.4 ACRES LOCATED AT THE
INTERSECTION OF CAJON BOULEVARD AND PALM AVENUE (APN: 0262-051-
41 AND 42) WITHIN THE CALMAT CAJON CREEK SPECIFIC PLAN (SP -CC).
WHEREAS, on September 15, 2016, pursuant to the requirements of § 19.44.020 of the
City of San Bernardino Development Code, an application for Development Permit Type -D 16-
19 was duly submitted by:
Property Owner: CalMart Company
500 N. Brand Boulevard, Suite 500
Glendale, CA 91203
Project Applicant: Ridge Development Company
2211 Michelson Drive, Suite 650
Irvine, CA 92612
Parcel Address: Intersection of Cajon Boulevard and Palm Avenue
APN'S: 0262-051-41 and 42
Lot Area: 38.4 acres
WHEREAS, Development Permit Type -D, 16-19 is a request to allow the development,
establishment and operation of two (2) industrial buildings containing approximately 325,920
square feet (Building 1) and approximately 392,273 square feet (Building 2), along with the
construction of the required on-site and off-site improvements, on two (2) separate parcels
containing a combined total of approximately 38.4 acres (attached herein as EXHIBIT "A"); and
WHEREAS, the Planning Division of the Community Development Department has
reviewed Development Permit Type -D 16-19 for consistency with the City of San Bernardino
General Plan and compliance with the City of San Bernardino Development Code and the
CalMat Cajon Creek Specific Plan; and
WHEREAS, on May 10, 1993, the Mayor and Common Council of the City of San
Bernardino adopted Resolution No. 93-140 certifying the Final Environmental Impact Report
(California State Clearinghouse No. 90020908) and adopting the Findings of Fact, Statement of
Overriding Considerations and Mitigation Monitoring and Reporting Program for the CalMat
Cajon Creek Specific Plan (incorporated herein by reference); and
WHEREAS, pursuant to requirements of §15063 of the California Environmental
Quality Act, the Planning Division of the Community Development Department accepted the
Initial Study/Addendum to Final Environmental Impact Report (California State Clearinghouse
No. 90020908) prepared by LSA Associates, Inc. and submitted by the applicant for
Development Permit Type -D 16-19 due to the fact that: 1) there are no substantial changes in the
proposed project that would require major revisions of the previous Final Environmental Impact
Report due to the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified significant effects; 2) there are no substantial changes that
have occurred with respect to the circumstances under which the proposed project is undertaking
which will require major revisions of the previous Final Environmental Impact Report due to the
involvement of new significant environmental effects or a substantial increase in the severity of
previously identified significant effects; and, 3) there is no new information of substantial
importance which was not known and could not have been known with the exercise of
reasonable diligence at the time that the previous Final Environmental Impact Report was
certified; and
WHEREAS, on November 25, 2016, pursuant to the requirements of §19.52.020 of the
City of San Bernardino Development Code, the City gave public notice by advertising in the San
Bernardino Sun, a newspaper of general circulation within the City of San Bernardino, and by
mailing notices to the property owners within 500 feet of the subject property of the holding of a
public hearing at which the Environmental Determination (Addendum to Final Environmental
Impact Report) and Development Permit Type -D 16-19 would be considered; and
WHEREAS, on December 8, 2016, pursuant to the requirements of §19.52.040 of the
City of San Bernardino Development Code, the Development and Environmental Review
Committee held the duly advertised public hearing at which interested persons had an
opportunity to testify in support of, or opposition to the Environmental Determination
(Addendum to Final Environmental Impact Report) and Development Permit Type -D 16-19, and
at which meeting the Development and Environmental Review Committee considered the
Environmental Determination (Addendum to Final Environmental Impact Report) and
Development Permit Type -D 16-19; and
WHEREAS, pursuant to the requirements of Chapter 19.44 of the City of San
Bernardino Development Code, the Development and Environmental Review Committee has the
authority to take action on the Environmental Determination (Addendum to Final Environmental
Impact Report) and Development Permit Type -D 16-19.
NOW THEREFORE, the Development and Environmental Review Committee of the
City of San Bernardino does hereby resolve, determine, find, and order as follows:
SECTION 1. ENVIRONMENTAL DETERMINATION:
In accordance with § 15063 of the California Environmental Quality Act (CEQA), the applicant
submitted and the Planning Division of the City of San Bernardino accepted an Initial Study/
Addendum to Final Environmental Impact Report (California State Clearinghouse No.
90020908) prepared by LSA Associates, Inc. in connection with Development Permit Type -D
16-19 for the development, establishment and operation of two (2) industrial buildings
containing approximately 325,920 square feet (Building 1) and approximately 392,273 square
feet (Building 2), along with the construction of the required on-site and off-site improvements,
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on two (2) separate parcels containing a combined total of approximately 38.4 acres due to the
fact that: 1) there are no substantial changes in the proposed project that would require major
revisions of the previous Final Environmental Impact Report due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously identified
significant effects; 2) there are no substantial changes that have occurred with respect to the
circumstances under which the proposed project is undertaking which will require major
revisions of the previous Final Environmental Impact Report due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously identified
significant effects; and, 3) there is no new information of substantial importance which was not
known and could not have been known with the exercise of reasonable diligence at the time that
the previous Final Environmental Impact Report was certified. Accordingly, pursuant to § 15164
of CEQA, a Notice of Intent to Adopt an Addendum to Final Environmental Impact Report
(California State Clearinghouse No. 90020908) for Development Permit Type -D 16-19 was
posted on November 25, 2016 for the CEQA-mandated ten (10) day public review and comment
period. In accordance with §15074 of CEQA, on December 8, 2016, during a duly advertised
public hearing, the Development and Environmental Review Committee adopted the Addendum
to Final Environmental Impact Report (California State Clearinghouse No. 90020908) for the
approval of Development Permit Type -D 16-19.
SECTION 2. FINDINGS FOR DEVELOPMENT PERMIT TYPE -D 16-19:
Section 19.44.040 of the City of San Bernardino Development Code requires that Development
Permit applications meet certain findings prior to the approval by the Development and
Environment Review Committee. Accordingly, the following findings are provided in support of
the approval of Development Permit Type -D 16-19:
Finding No. 1: The proposed development is permitted in the subject zoning district and
complies with all applicable provisions of the Development Code,
including prescribed site development standards and applicable design
guidelines.
Finding of Fact: The proposed the development, establishment and operation of two (2)
industrial buildings containing approximately 325,920 square feet
(Building 1) and approximately 392,273 square feet (Building 2), along
with the construction of the required on-site and off-site improvements, on
two (2) separate parcels containing a combined total of approximately
38.4 acres are permitted uses within the CalMat Cajon Creek Specific
Plan, subject to the approval of a Development Permit Type -D application
with the appropriate Conditions of Approval and CEQA determination.
The proposal under Development Permit Type- D 16-19 will be developed
in compliance with all of the applicable provisions of the City of San
Bernardino Development Code and CalMat Cajon Creek Specific Plan,
including development standards and applicable design guidelines.
Additionally, the, possible variety intended industrial uses, such as light
manufacturing, assembly uses, warehouse and distribution, administrative
offices, and similar uses, are permitted within the CalMat Cajon Creek
Specific Plan area. Therefore, the proposal would not impair the integrity
and character of the subject land use district.
Finding No. 2: The proposed development is consistent with the General Plan.
Finding of Fact: General Plan Land Use Policy 4.5.1 encourages a "focus on developing
the export -oriented economic capacity of the City, which includes
`production business' (i.e., manufacturing and service firms). Getleral Plan
Goal 4.1 encourages economic activity that capitalizes on the
transportation and locational strengths of San Bernardino. The proposed
development of two (2) industrial buildings will provide additional
economic development opportunities within the City, consistent with the
General Plan goal and policy cited above. The CaIMat Cajon Creek
Specific Plan also lists the intended uses, and permits a variety of uses
including light manufacturing, assembly uses, warehouse and distribution,
administrative offices, and other similar uses. Additionally, the proposed
development, establishment and operation of two (2) industrial buildings
containing approximately 325,920 square feet (Building 1) and
approximately 392,273 square feet (Building 2), along with the
construction of the required on-site and off-site improvements, on two (2)
separate parcels containing a combined total of approximately 38.4 acres
is permitted within the CalMat Cajon Creek Specific Plan, subject to the
approval of a Development Permit Type -D application with the
appropriate Conditions of Approval and CEQA determination, and the
CalMat Cajon Creek Specific Plan is consistent with the land use
designation set forth by the General Plan Land Use Map.
Finding No. 3 The proposed development would be harmonious and compatible with
existing and future developments within the land use district and general
area, as well as with the land uses presently on the subject property,
Finding of Fact: The proposed development, establishment and operation of two (2)
industrial buildings containing approximately 325,920 square feet
(Building 1) and approximately 392,273 square feet (Building 2), along
with the construction of the required on-site and off-site improvements, on
two (2) separate parcels containing a combined total of approximately
38.4 acres will be harmonious and compatible with existing and future
developments within the CalMat Cajon Creek Specific Plan and the
surrounding area. The scale and density of the proposed development is
similar to that of the existing industrial development in the area and it
conforms to the development standards of the CalMat Cajon Creek
Specific Plan. Since the proposal is consistent with the General Plan,
Development Code and CalMat Cajon Creek Specific Plan, no land use
conflict is expected to result from the construction of the proposed project.
Finding No. 4 Approval of the Development Permit for the proposed development is in
compliance with the requirements of the California Environmental Quality
Act and Section 19.20.030(6) of the Development Code.
Finding of Fact: In accordance with §15063 of the California Environmental Quality Act,
the Planning Division of the Community Development Department
accepted the Initial Study/Addendum to Final Environmental Impact
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Report (California State Clearinghouse No. 90020908) prepared by LSA
Associates, Inc. and submitted by the applicant for Development Permit
Type -D 16-19 due to the fact that: 1) there are no substantial changes in
the proposed project that would require major revisions of the previous
Final Environmental Impact Report due to the involvement of new
significant environmental effects or a substantial increase in the severity of
previously identified significant effects; 2) there are no substantial
changes that have occurred with respect to the circumstances under which
the proposed project is undertaking which will require major revisions of
the previous Final Environmental Impact Report due to the involvement of
new significant environmental effects or a substantial increase in the
severity of previously identified significant effects; and, 3) there is no new
information of substantial importance which was not known and could not
have been known with the exercise of reasonable diligence at the time that
the previous Final Environmental Impact Report was certified.
Finding No. 5: There will be no potential significant negative impacts upon
environmental quality and natural resources that could not be properly
mitigated and monitored.
Finding of Fact: In accordance with §15063 of the California Environmental Quality Act
(CEQA), an Initial Study/Addendum to Final Environmental Impact
Report (California State Clearinghouse No. 90020908) was prepared in
connection with Development Permit Type -D 16-19 for the development,
establishment and operation of two (2) industrial buildings containing
approximately 325,920 square feet (Building 1) and approximately
392,273 square feet (Building 2), along with the construction of the
required on-site and off-site improvements, on two (2) separate parcels
containing a combined total of approximately 38.4 acres. The Addendum
to Final Environmental Impact Report (California State Clearinghouse No.
90020908) has been accepted by the Planning Division of the Community
Development Department due to the fact that: 1) there are no substantial
changes in the proposed project that would require major revisions of the
previous Final Environmental Impact Report due to the involvement of
new significant environmental effects or a substantial increase in the
severity of previously identified significant effects; 2) there are no
substantial changes that have occurred with respect to the circumstances
under which the proposed project is undertaking which will require major
revisions of the previous Final Environmental Impact Report due to the
involvement of new significant environmental effects or a substantial
increase in the severity of previously identified significant effects; and, 3)
there is no new information of substantial importance which was not
known and could not have been known with the exercise of reasonable
diligence at the time that the previous Final Environmental Impact Report
was certified. Therefore, the proposed project under Development Permit
Type -D 16-19 will be completed in a manner so that it is consistent with
the surrounding neighborhood, and no significant negative impacts on the
environment are anticipated.
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Finding No. 6: The subject site is physically suitable for the type and density/intensity of
use being proposed.
Finding of Fact: The proposed development, establishment and operation of two (2)
industrial buildings containing approximately 325,920 square feet
(Building 1) and approximately 392,273 square feet (Building 2), along
with the construction of the required on-site and off-site improvements, on
two (2) separate parcels containing a combined total of approximately 38.4
acres is a permitted use within the Ca1Mat Cajon Creek Specific Plan,
subject to the approval of a Development Permit Type -D application with
the appropriate Conditions of Approval and CEQA determination. The
subject site as industrial buildings is sufficient in size to accommodate the
proposal under Development Permit Type -D 16-19 as required by the City
of San Bernardino Development Code. Therefore, the subject site is
physically suitable for the proposal.
Finding No. 7 There are adequate provisions for public access, water, sanitation, and
public utilities and services to ensure that the proposed use would not be
detrimental to public health and safety.
Finding of Fact: There are adequate provisions for public access, public utilities, and public
services for the proposed development, establishment and operation of two
(2) industrial buildings containing approximately 325,920 square feet
(Building 1) and approximately 392,273 square feet (Building 2), along
with the construction of the required on-site and off-site improvements, on
two (2) separate parcels containing a combined total of approximately
38.4 acres. The existing parcels are located adjacent to and already served
by existing public streets and a full range of public utilities and services.
All applicable Codes will apply to the proposed development. Therefore,
subject to the Conditions of Approval, the proposed development of two
(2) industrial buildings under Development Permit Type -D 16-19 will not
be detrimental to public services or public health and safety.
Finding No. 8 The location, size, design and operating characteristics of the proposed
development would not be detrimental to the public interest, health, safety,
convenience or welfare of the City.
Finding of Fact: The proposed development, establishment and operation of two (2)
industrial buildings containing approximately 325,920 square feet
(Building 1) and approximately 392,273 square feet (Building 2), along
with the construction of the required on-site and off-site improvements, on
two (2) separate parcels containing a combined total of approximately
38.4 acres conforms to all applicable development standards and land use
regulations of the CalMat Cajon Creek Specific Plan. Therefore, the
design of the project, in conjunction with the recommended Conditions of
Approval, will ensure that the proposal will not create significant noise,
traffic, or other conditions or situations that may be objectionable or
detrimental to other permitted uses in the vicinity of the site, nor will it be
adverse to the public interest, health, safety, convenience or welfare of the
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City. The location, size, design and character of the proposed development
will enhance the neighborhood to the benefit of the public interest and
general welfare of the City.
SECTION 3. CONDITIONS OF APPROVAL:
The approval of Development Permit Type -D 16-19 shall be subject to the following Conditions
of Approval:
This approval is to allow the development, establishment and operation of two (2)
industrial buildings containing approximately 325,920 square feet (Building 1) and
approximately 392,273 square feet (Building 2), along with the construction of the
required on-site and off-site improvements, on two (2) separate parcels containing a
combined total of approximately 38.4 acres, within the CalMat Cajon Creek Specific
Plan.
2. The project site shall be developed and maintained in accordance with the plans stamped
December 8, 2016 (EXHIBIT "A"), approved by the City, which includes site plans,
floor plans and exterior elevations, on file in the Planning Division; the Conditions of
Approval contained herein; and, the City's Municipal Code regulations.
3. The project shall be subject to all of the mitigation measures contained in the Mitigation
Monitoring and Reporting Program contained within the certified Final Environmental
Impact Report (California State Clearinghouse No. 90020908) and incorporated herein by
reference as Conditions of Approval.
4. Without limiting the effect of any other Condition of Approval contained herein, this
approval shall automatically become null and void in the event Applicant fails to acquire
record title to the real property which is the subject matter of the application, by
December 30, 2016.
5. Within two (2) years of the Development Permit approval, commencement of
construction shall have occurred or the permit/approval shall become null and void. In
addition, if after commencement of construction, work is discontinued for a period of one
year, then the permit/approval shall become null and void. However, approval of the
Development Permit does not authorize commencement of construction. All necessary
permits must be obtained prior to commencement of specified construction activities
included in the Conditions of Approval.
EXPIRATION DATE: December 8, 2018
6. The review authority may grant a time extension, for good cause, not to exceed twelve
(12) months. The applicant must file an application, the processing fees, and all required
submittal items, thirty (30) days prior to the expiration date. The review authority shall
ensure that the project complies with all Development Code provisions in effect at the
time of the requested extension.
7. In the event this approval is legally challenged, the City will promptly notify the
applicant of any claim, action or proceeding and will cooperate fully in the defense of this
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matter. Once notified, the applicant agrees to defend, indemnify and hold harmless the
City of San Bernardino (City), any departments, agencies, divisions, boards or
commission of the City as well as predecessors, successors, assigns, agents, directors,
elected officials, officers, employees, representatives and attorneys of the City from any
claim, action or proceeding against any of the foregoing persons or entities. The applicant
further agrees to reimburse the City for any costs and attorneys' fees which the City may
be required by a court to pay as a result of such action, but such participation shall not
relieve applicant of his or her obligation under this condition. The costs, salaries, and
expenses of the City Attorney and employees of his office shall be considered as
"Attorney's fees" for the purpose of this condition. As part of the consideration for
issuing this Development Permit, this condition shall remain in effect if the Development
Permit is rescinded or revoked, whether or not at the request of applicant.
8. Any determination or action taken by the Development and Environmental Review
Committee may only be appealed to the Planning Commission. In a similar manner, any
action taken by the Planning Commission to approve or disapprove an application may be
appealed to the Mayor and Common Council.
9. All appeals shall be submitted to the Community Development Department on a City
application form, and shall specifically state the basis of the appeal. An appeal of a
Development and Environmental Review Committee action shall be filed with the
Community Development Department within fifteen (15) days following the final date of
action for which an appeal is made. An appeal of a Planning Commission decision shall be
filed with the Community Development Department within fifteen (15) days following the
final date of action for which an appeal is made.
10. The required setbacks shall be landscaped using an Opaque Scree, Type A, pursuant to
§19.28.040(3)(A). The landscaping shall be planted more densely along the northern
property line to provide additional screening from the loading docks facing San
Bernardino Avenue.
11 If the colors of the buildings or other exterior finish materials are to be modified beyond
the current proposal and improvement requirements, the revised color scheme and/or
finish materials shall be reviewed and approved by the Planning Division prior to
commencement of work.
12. The property owner(s), facility operator and property management will be responsible for
regular maintenance of the site. Vandalism, graffiti, trash and other debris must be
removed within 24 hours of being reported.
13. Signs are not approved as a part of this permit. Prior to establishing signs, the applicant
must submit an application for approval by the Planning Division. Banners, flags,
pennant, and similar signs are prohibited unless a Temporary Sign Permit is obtained.
14. The applicantlowner shall maintain all existing landscaping in the parking lot and
setbacks in a weed and disease free condition at all times and any dead or missing
vegetation must be promptly replaced.
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15. Construction -related activities may not occur between the hours of 8:00 pm and 7:00 am.
No construction vehicles, equipment, or employees may be delivered to, or arrive at the
construction site before 7:00 am or leave the site after 8:00 pm. Construction activities
may only occur Monday through Friday.
16. The project shall comply with all applicable requirements of the City of San Bernardino
Community Development Department, Land Development and Building & Safety
Divisions, Police Department, Municipal Water Department, Public Works Department,
and the City Clerk's Office/Business Registration Division, and the County of San
Bernardino Fire Department,
17. Submittal requirements for permit applications with the Building and Safety Division
shall include all Conditions of Approval issued with this approval, printed on the plan
sheets.
18. A Certificate of Occupancy shall not be issued until all Conditions of Approval have been
completed.
Land Development Division
19. Drainage and Flood Control
a) All necessary drainage and flood control measures shall be subject to
requirements of the Building Official, which may be based in part on the
recommendations of the San Bernardino County Department of Transportation
and Flood Control. The developer's Engineer shall furnish all necessary data
relating to drainage and flood control.
b) A permit will be required from the San Bernardino County Department of
Transportation and Flood Control, if any work is required within the Flood
Control District's right-of-way.
c) A local drainage study will be required for the project. Any drainage
improvements, structures or storm drains needed to mitigate downstream impacts
or protect the development shall be designed and constructed at the developer's
expense, and right-of-way dedicated as necessary.
d) The detention basin shall be designed in accordance with "Detention Basin
Design Criteria for San Bernardino County." Retention basins are not acceptable.
e) A maintenance agreement for the existing basin East of Institution Road shall be
worked out with Public Works Department prior to grading permit issuance.
f) The development is located within Zone X of the Federal Insurance Rate Maps on
booklet #06071 C7940H with year 08/28/2008.
g) All drainage from the development shall be directed to an approved public
drainage facility. If not feasible, proper drainage facilities and easements shall be
provided to the satisfaction of the City Engineer.
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h) If site drainage is to be outletted into the public street, the drainage shall be
conveyed through a parkway culvert constructed in accordance with City
Standard No. 400. Conveyance of site drainage over the Driveway approaches
will not be permitted.
i) A Final Full Categorical Water Quality Management Plan (WQMP) and a Storm
Water Pollution Prevention Plan (SWPPP) is required for this project. The
applicant is directed to the County of San Bernardino Flood Control web page for
the WQMP Technical Guidance Document and template. The Land Development
Division, prior to issuance of any permit, shall approve the WQMP and the
SWPPP. A CD copy of the approved WQMP and SWPPP are required prior to
Occupancy.
j) A "Notice of Intent (NOI)" shall be filed with the State Water Quality Control
Board for construction disturbing 1 acre or more of land (including the project
area, construction yards, storage areas, etc.). A WDID number issued by the State
of California is required prior to the issuance of grading permit.
k) The Land Development Division, prior to grading plan approval, shall approve an
Erosion Control Plan. The plan shall be designed to control erosion due to water
and wind, including blowing dust, during all phases of construction, including
graded areas which are not proposed to be immediately built upon.
20. Grading- and Landscaping,
a. The grading and on-site improvement plan shall be signed by a Registered Civil
Engineer and a grading permit will be required. The grading plan shall be
prepared in strict accordance with the City's "Grading Policies and Procedures"
and the City's "Standard Drawings", unless otherwise approved by the Building
Official.
b. If more than 5,000 cubic yards of earthwork is proposed, the grading shall be
supervised in accordance with Section 3317.2 of the California Building Code.
c. The applicant must post a grading bond prior to issuance of a grading permit. The
amount of the bond is to be determined by the Building Official.
d. If the grading plan indicates export or import, the source of the import material or
the site for the deposition of the export shall be noted on the grading plan. Permit
numbers shall be noted if the source or destination is in the City of San
Bernardino.
e. If more than 50 cubic yards of earth is to be hauled on City Streets then a special
hauling permit shall be obtained from the City Engineer. Additional conditions,
such as truck route approval, traffic controls, bonding, covering of loads, street
cleaning, etc. may be required by the City Engineer.
f. A liquefaction evaluation is required for the site. This evaluation must be
submitted and approved prior to issuance of a grading permit. Any grading
requirements recommended by the approved liquefaction evaluation shall be
incorporated in the grading plan.
10
g. Wheel stops are not permitted by the Development Code, except at designated
accessible parking spaces. Therefore, continuous 6" high curb shall be used
around planter areas and areas where head in parking is adjacent to walkways.
The parking spaces may be 16.5' deep and may overhang the Iandscaping or
walkway by 2.5'. Overhang into the setback area or into an ADA path of travel
(minimum 4' wide) is not permitted.
h. The refuse enclosure(s) shall be constructed in accordance with City Standard
Drawing No. 508 with modification to provide ADA access. The minimum size
of the refuse enclosure shall be 8 feet x 15 feet, unless the Public Services
Department, Refuse Division, approves a smaller size, in writing. Where a refuse
enclosure is proposed to be constructed adjacent to spaces for parking passenger
vehicles, a 3' wide by 6 " high concrete planter shall be provided to separate the
enclosure from the adjacent parking. The placement of the enclosure and design
of the planter shall preclude the enclosure doors from opening into drive aisles or
impacting against adjacent parked cars. The number and placement of refuse
enclosures shall conform to the location and number shown on the site plan as
approved by the Development Review Committee, Planning Commission or City
Council.
i. Retaining walls, block walls and all on-site fencing shall be designed and detailed
on the on-site improvement Plan. This work shall be part of the on-site
improvement permit issued by the Building Official. All masonry walls shall be
constructed of decorative block with architectural features acceptable to the City
Planner.
j. This project is located in the high wind zone. All walls and fences shall be
designed to meet current CBC requirements. All construction details shall be
included on the appropriate plan. Structural calculations shall be provided for
City review.
k. No construction on a site shall begin before a temporary/security fence is in place
and approved by the Building Official or his designee. Temporary/security
fencing may not be removed until approved by the Building Official or his
designee. The owner or owner's agent shall immediately remove the
temporary/security fencing upon the approval of the Building Official or his
designee. Sites that contain multiple buildings shall maintain the
temporary/security fencing around the portion of the site and buildings under
construction as determined by the Building Official or his designee. All
temporary/security fencing for construction sites shall include screening,
emergency identification and safety identification and shall be kept in neat and
undamaged condition.
1. The on-site improvement plan shall include details of on-site lighting, including
light location, type of poles and fixtures, foundation design with structural
calculations, conduit location, material and size, and Photometric plot shall be
provided which show that the proposed on-site lighting design will provide:
• 1 foot-candle of illumination uniformly distributed over the surface of the
parking lot during hours of operation, and
• 0.25 foot-candles security lighting during all other hours.
11
m. The design of on-site improvements shall also comply with all requirements of
The California Building Code, Title 24, relating to accessible parking and
accessibility, including retrofitting of existing building access points for
accessibility, if applicable.
n. An accessible path of travel shall be provided from the public way to the building
entrance. All pathways shall be paved and shall provide a minimum clear width
of 4 feet. Where parking overhangs the pathway, the minimum paved width shall
be 6.5 feet.
o. The project Landscape Plan shall be reviewed and approved by the Land
Development Division prior to issuance of a grading permit. Submit 3 copies to
the Land Development Division for Checking.
p. Prior to occupancy of any building, the developer shall post a bond to guarantee
the maintenance and survival of project landscaping for a period of one year.
q. The public right-of-way, between the property line and top of curb (also known as
"parkway") along adjoining streets shall be landscaped by the developer and
maintained in perpetuity by the property owner. Details of the parkway
landscaping shall be included in the project's on-site landscape plan.
r. All electrical transformers located outdoors on the site, shall be screened from
view with a solid wall or landscaping and shall not be located in any
setback/right-of-way area. If the transformer cannot be screened, it shall be
located in an underground vault unless approved by the City Engineer pursuant to
Section 19.30.110.
21. Utilities
a. Design and construct all public utilities to serve the site in accordance with City
Code, City Standards and requirements of the serving utility, including gas,
electric, telephone, water, sewer and cable TV (Cable TV optional for
commercial, industrial, or institutional uses).
b. Each parcel shall be provided with separate water and sewer facilities so the City
or the agency providing such services in the area can serve it.
c. Backflow preventers shall be installed for any building with the finished floor
elevation below the rim elevation of the nearest upstream manhole.
d. This project is located in the sewer service area maintained by the City of San
Bernardino. Direct connection to the existing 18" sewer main on Cajon l3oulevard
shall not be allowed. Any necessary sewer main construction to connect with the
existing 18" main line shall be designed and constructed in accordance with the
City's "Sewer Policy and Procedures" and City Standard Drawings at Developer's
expense.
e. Utility services shall be placed underground and easements provided as required.
f. All existing overhead utilities adjacent to or traversing the site on either side of
the street shall be placed underground in accordance with Section 19.20.030 of
the Development Code.
g. Existing Utilities which interfere with new construction shall be relocated at the
Developer's expense as directed by the City Engineer.
12
h. Sewers within private streets or private parking lots will not be maintained by the
City but shall be designed and constructed to City Standards and inspected under
a City On -Site Construction Permit. A private sewer plan designed by the
Developer's Engineer and approved by the City Engineer will be required. This
plan can be incorporated in the grading plan, where practical.
22. Street Improvement and Dedications
a. For the streets listed below, dedication of adequate street right-of-way (R.W.) to
provide the distance from street centerline to property line and placement of the
curb line (C.L.) in relation to the street centerline shall be as follows:
Street Name Right of Way ffeeti
Cajon Blvd.
Institution Road
b. Cajon Boulevard:
50 (5' Dedication Required)
44 (Required)
Curb Line (feet
40 (Required)
33 (May varies along
curvature)
i. Construct 8" Curb and Gutter per City Standard No. 200 adjacent to the
site. Widen pavement adjacent to the site to match new curb and gutter.
Construct approach and departure transitions for traffic safety and
drainage as approved by the City Engineer.
ii. Construct sidewalk adjacent to the site in accordance with City Standard
No. 202; Case "A" (6' wide adjacent to curb).
iii. A radius type Driveway Approach is proposed in lieu of the standard drive
approach. A truck turning radius shall be provided to Public Works to
verify the final radius. The throat of the driveway shall be paved in
colored textured concrete.
iv. The street shall be rehabilitated and the structural street section shall be
designed on the "R" value of the subgrade as determined by soils testing
and the traffic Index.
v. Install 2' x 2' California US 66 pavers in the public sidewalk. Pavers shall
be set in the center of the sidewalk at each corner of the project and at
equal intervals not exceeding 25 feet on center along the frontage of the
project. Approved pavers are available for purchase at cost, from the City
of San Bernardino, Development Services Department, or directly from
Wausau Tile Company.
vi. Install California US 66 wall mounted plaque on the new building facing
California US Route 66 at a location approved by the Deputy
Director/City Planner. Approved wall plaques are available for purchase
13
at cost from the City of San Bernardino, Development Services
Department, or directly from Wausau Tile Company.
c. Institutional Road:
i. Construct 8" Curb and Gutter per City Standard No. 200 from Institution
Road & Palm Ave to the railroad overpass. Widen pavement adjacent to
the site to match new curb and gutter. Construct approach and departure
transitions for traffic safety and drainage as approved by the City
Engineer.
ii. A radius type Driveway Approach is proposed in lieu of the standard drive
approach. A truck turning radius shall be provided to Public Works to
verify the final radius. The throat of the driveway shall be paved in
colored textured concrete.
iii. The street shall be rehabilitated and the structural street section shall be
designed on the "R" value of the subgrade as determined by soils testing
and the traffic Index.
d. At all curb returns within and adjacent to the project site, construct accessible
curb ramps in accordance with Caltrans Standards to comply with current ADA
accessibility requirements. Dedicate sufficient right-of-way at the corner to
accommodate the ramp.
e. Street Lights are required for this project, install Street Lights adjacent to the site
in accordance with City Standard Nos. SL -1 and SL -2. Also, a separate light plan
shall be submitted in accordance with the City of San Bernardino Street Lighting
Design Policies.
f. Curb returns at the intersection of Cajon Blvd and Institutional Road shall be
constructed with a 35 -foot radius.
g. A street cut permit, issued by the City Engineer, will be required for utility cuts
into existing streets. The required method shall include a slurry coat along the
frontage of the project site to center line. If trenching crosses both sides of the
street than both sides of the street shall have a slurry coat and stripping along the
frontage of the project site.
h. A County and Railraod Permit shall be required for any work proposed within
each respective agency right-of-way.
23. Phasin
a. If the project is to proposed to be developed in phases, each individual phase shall
be designed to provide maximum public safety, convenience for public service
vehicles, and proper traffic circulation
24. Rc�ouired Eng ineerim Plans
a. A complete submittal for plan checking shall consist of:
■ street improvement plans (may include street lights or street lighting may be
separate plan),
14
■ sewer plans (Private sewers may be shown on on-site improvement plan;
public sewers must be on a separate plan with profile),
■ storm drain plans (Private storm drains may be shown on on-site improvement
plans; public storm drains must be on a separate plan with profile),
■ traffic signal plans,
■ signing and striping plan (may be on sheets included in street improvement
plan),
■ lighting (on-site lighting may be included in on-site improvement plan or may
be on a separate stand-alone plan),
■ grading (may be incorporated with on-site improvement plan),
■ on-site improvement plans and on-site landscaping and irrigation,
■ water plans (shall be submitted to San Bernardino Municipal Water
Department),
■ other plans as required. Piecemeal submittal of various types of plans for the
same project will not be allowed.
■ All required supporting calculations, studies and reports must be included in
the initial submittal (including but not limited to drainage studies, soils
reports, structural calculations)
b. All off-site improvement plans submitted for plan check shall be prepared on the
City's standard 24" x 36" sheets. A signature block satisfactory to the City
Engineer or his designee shall be provided.
c. After completion of plan checking, final mylar drawings, stamped and signed by
the Registered Civil Engineer in charge, shall be submitted to the City Engineer
and/or Building Official for approval.
d. Copies of the City's design policies and procedures and standard drawings are
available at the Public Works Counter for the cost of reproduction. They are also
available at no charge at the Public Works Web Site at hM://www.sbcit"
25. Re,::uired Engineering Permits
a. Grading permit.
b. On-site improvements construction permit (except buildings - see Development
Services -Building Division), including landscaping.
c. Off-site improvement construction permit.
26. Ar�r�licable Eneineerinu Fees
a. All plan check, permit, inspection, and impact fees are outlined on the Public
Works Fee Schedule. A deposit in the amount of 100% of the estimated
checking fee for each set of plans will be required at time of application for plan
check. The amount of the fee is subject to adjustment if the construction cost
estimate varies more than 10% from the estimate submitted with the application
for plan checking.
15
b. The current fee schedule is available at the Public Works Counter and at
hU://www.sbcity.gig
27. Traffic Requirements
a. All Traffic mitigation measures shall be implemented according to the
recommendations of the City Traffic Engineer. The project shall be conditioned to
comply with all of the mitigation measures identified in the revised Traffic Impact
Study report, November 8, 2016, and the updated evaluation letter, dated
November 14, 2016.
Building and Safety Division
28. Refer to Section 105 of the California Building Code 2013 for all required permits.
29. Address the requirements of the California Green Code 2013 for all debris. Check the
VOC forms per code.
30. Review Chapter 3 of the California Building Code 2013 for the Occupancy Requirements
and Chapter 4 for the Special Use Requirements.
31. Formal submittals to the Building Division shall include all required documents. This
includes a Soil Report per Chapter 18 of the California Building Code 2013.
32. The Building Permit plans shall include the location of all existing fire hydrants. A
separate set of plans shall be submitted to the Fire Department,
33. Refer to Chapter 11B of the California building Code 2013 for ADA requirements.
Fire Department
34. The developer shall comply with all Building, Fire Codes and Fire Department Standards
requirements based on occupancy classification.
35. Any changes to this proposal shall require new Fire Department condition letter.
36. Any changes to the approved life safety system shall require plans to be submitted to the
Fire Department prior to construction including the following: fire sprinklers, fire alarms,
underground water supply for fire protection, cooking appliances and hood protections.
37. Knox Box/Key Box is required, and shall be provided and installed in accordance with
CFC and Fire Department Standards.
38. Required fire flow for this project shall meet the minimum requirements established in
the California Fire Code.
39. An approved on-site fire protection water system, in accordance with Fire Department
Standard is required. The system is required to be in place and serviceable prior to
building construction.
40. An approved water supply system, complete with street fire hydrants complying with Fire
Department Standard, shall be in place prior to any combustible construction.
41. Provide a complete on-site fire protection plan to the FD which indicates the location of
all required fire protection appliances (FDC's, PIV's, DDC's, proposed and existing fire
hydrants, etc.).
16
42. Fencing, walls or car ports shall not obstruct Fire Department access to fire hydrants and
property.
43. Paved access from two (2) points shall be required for completion and occupancy.
44. All access gates shall require mechanical means for opening in event of power failure,
shall not impinge on required clear width when fully open, and shall be equipped with
Knox Box lock actuation devices.
45. Interior/exterior Fire Department access roadways/fire lanes shall be required per Fire
Department Standard. If gates installed, must comply with Fire Department Standards.
46. Storage containers may not block Fire Department access.
47. shall Provide the following FD notes on the site utility plan:
a. A separate permit is required by the Fire Department for installation of on-site
water systems. No work may begin until the permit has been obtained. A permit
application may be obtained from Fire Prevention.
b. All hydrants shall have a blue reflective dot placed in the drive lane adjacent to
the hydrants per Fire Department Standard.
c. Paint curbs red, 15' to either side of fire hydrant and FDC.
d. Fire Department Connection required within 50 feet of a hydrant.
e. Bollards (crash posts) may be required at time of final inspection (to protect the
fire hydrants and FDC from vehicular traffic).
f. Public fire hydrants are required along streets at intervals not to exceed 300 feet
for commercial and 500 for residential areas.
48. Paved access from two (2) points are required to be 30 feet in width 3 or more stories in
height or over 300,000 square feet.
49. Premise and Building identification and addressing shall be a minimum of 12 inch in
height.
50. All fire access roads in to this project shall meet San Bernardino County standards and
CFC codes.
51. If warehouse will be used for storage the sprinkler design will comply with the
requirements of NFPA for heights and commodity. All spec buildings shall be designed
to a minimum of .6/3000 sprinkler design.
52. Fire Control Room is required all warehouse over 300,000. See standard: S1 for
construction requirements.
53. High -piled storage plans shall be submitted prior to any storage or approval of racks
within the warehouse. Contact (909) 918-2201 for information.
54. Fire extinguishers are required throughout. All spacing shall meet the California Fire
Code for spacing and size.
55. All exiting shall comply with the California Fire Code and Building Code for travel
distance, lineal feet, and width.
17
SECTION 4. DEVELOPMENT AND ENVIRONMENTAL REVIEW
COMMITTEE ACTION:
The Development and Environmental Review Committee hereby takes the following action:
1. Adoption of Development and Environmental Review Committee Resolution No. 2016-
063-D/ERC:
a. Adopts the Addendum to Final Environmental Impact Report (California State
Clearinghouse No. 90020908) for Development Permit Type -D 16-19, in accordance
with § 15074 of the California Environmental Quality Act; and
b. Approves Development Permit Type -D 16-19, subject to the aforementioned
Conditions of Approval.
PASSED, APPROVED AND ADOPTED this 81h day of December 2016.
ATTEST:
City of San Bernardino, California
18
San Bernard
and
iittee
CERTIFICATION:
I, Melina Perez -Ramirez, Recording Secretary of the Development and Environmental Review
Committee of the City of San Bernardino, California, do hereby certify that the foregoing
Resolution, No. 2016-063-D/ERC, was duly adopted by the Development and Environmental
Review Committee of the City of San Bernardino, California, at a regular meeting thereof held
on the 8th day of December 2016, by the following vote, to wit:
AYES: Johnson, Morris, Akers, Cotarigco, Sepulveda, Khodr, Brunson, Castro, and Pearson
NOES: None
ABSENT: None
ABSTAIN: None
Melina Perez-RYinirez,
City of San Bernardino,
EXHIBIT "A"
APPROVED PLANS
20
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DIF CREDIT AGREEMENT
Ridge San Bernardino One
This DIF CREDIT AGREEMENT ("Agreement") is entered into this 15th day of
November 2017, by and between the CITY OF SAN BERNARDINO,
a California municipal corporation ("CITY"), and Ridge Development Company,
LLC, ("DEVELOPER"). CITY and DEVELOPER are sometimes hereinafter referred
to individually as "Party" and collectively as "Parties."
RECITALS
WHEREAS, DEVELOPER owns approximately 38.4 acres of real property located
within the CITY which is more specifically described in the legal description set
forth in Exhibit "A", attached hereto and incorporated herein by this reference
("Property");
WHEREAS, DEVELOPER has requested from CITY certain entitlements and/or
permits for the construction of improvements on the Property, which are more
particularly described as the establishment and operation of two (2) industrial
buildings containing approximately 392,983 square feet (Building 1) and
approximately 326,199 square feet (Building 2) along with the construction of the
required on-site and off-site improvements, on two (2) separate parcels containing a
combined total of approximately 38.4 acres ("Project");
WHEREAS, CITY requires DEVELOPER to pay certain development impact fees
for the purpose of defraying all or a portion of the cost of public improvements,
public services, and community amenities related to the Project ("DIF");
WHEREAS, the estimated Local Circulation System Impact Fee under Section
3.27.050 of the Municipal Code for Building 1 is $59,733.42 and for Building 2 is
$49,975.05; and
WHEREAS, the estimated and the Regional Circulation System Impact Fee under
Section 3.27.060 of the Municipal Code for Building 1 is $625,235.95 and for
Building 2 is $523,044.16;
WHEREAS, section 3.27.140 of the San Bernardino Municipal Code authorizes the
CITY to issue DIF credits to a DEVELOPER who constructs or donates certain
public improvements to reduce their DIF obligation;
WHEREAS, section 3.27.150 of the San Bernardino Municipal Code authorizes the
CITY to reimburse a DEVELOPER who constructs public improvements that,
among other things, benefits the public generally rather than Developer's property;
1
DIF CREDIT AGREEMENT
Ridge San Bernardino One
WHEREAS, DEVELOPER desires to construct certain public improvements that
would be funded by the DIF Program ("DIF Improvements") and obtain DIF credits
or reimbursements from the CITY; and,
WHEREAS, CITY and DEVELOPER now desire to enter into this Agreement for
the following purposes: (1) to provide for the timely delivery of the DIF
Improvements, (2) to ensure that delivery of the DIF Improvements is undertaken
as if the DIF Improvements were constructed under the direction and authority of
the CITY, (3) to provide a means by which the DEVELOPER's costs for project
delivery of the DIF Improvements are offset against DEVELOPER's obligation to
pay the applicable DIF for the Project, and (4) to provide a means for DEVELOPER
to be reimbursed to the extent allowable under the San Bernardino Municipal Code.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable
consideration, the adequacy of which is hereby acknowledged, DEVELOPER and
CITY hereby agree as follows:
"M
1.0 Incorporation of Recitals. The Parties hereby affirm the facts set forth in the
Recitals above and agree to the incorporation of the Recitals as though fully set
forth herein.
2.1 Construction of DIF Improvements. DEVELOPER shall construct or have
constructed at its own cost, expense, and liability certain DIF Improvements
generally described as the construction of public improvements in the form of street,
curb and gutter, sidewalk, street light, and utility improvements along (1) the
frontage of the BNSF transcontinental mainline and (2) the frontage of the MWD
property, in proximity to the regional Palm Avenue and BNSF grade separation
project, and as shown more specifically on the plans, profiles, and specifications
which have been prepared by or on behalf of DEVELOPER and approved by CITY
and which are incorporated herein by this reference. Construction of the DIF
Improvements shall include any transitions and/or other incidental work deemed
necessary for drainage or public safety. DEVELOPER shall be responsible for the
replacement, relocation, or removal of any component of any existing public or
private improvement in conflict with the construction or installation of the DIF
Improvements. Such replacement, relocation, or removal shall be performed to the
complete satisfaction of CITY and the owner of such improvement. DEVELOPER
further promises and agrees to provide all equipment, tools, materials, labor, tests,
design work, and engineering services necessary to fully and adequately complete
the DIF Improvements.
2.2 Pre -approval of Plans and Specifications. DEVELOPER is prohibited from
commencing work on any portion of the DIF Improvements until all plans and
2
DIF CREDIT AGREEMENT
Ridge San Bernardino One
specifications for the DIF Improvements have been submitted to and approved by
CITY. Approval by CITY shall not relieve DEVELOPER from ensuring that all DIF
Improvements conform with all other requirements and standards set forth in this
Agreement.
2.3 Permits and Notices. Prior to commencing any work, DEVELOPER shall, at
its sole cost, expense, and liability, obtain all necessary permits and licenses and
give all necessary and incidental notices required for the lawful construction of the
DIF Improvements and performance of DEVELOPER's obligations under this
Agreement. DEVELOPER shall conduct the work in full compliance with the
regulations, rules, and other requirements contained in any permit or license issued
to DEVELOPER.
2.4 Public Works Requirements. In order to insure that the DIF Improvements
will be constructed as if they had been constructed under the direction and
supervision, or under the authority of, CITY, DEVELOPER shall comply with all of
the following requirements with respect to the construction of the DIF
Improvements:
(a) DEVELOPER shall obtain bids for the construction of the DIF
Improvements, in conformance with the standard procedures and
requirements of CITY with respect to its public works projects, or in a
manner which is approved by the Public Works Department.
(b) The contract or contracts for the construction of the DIF Improvements
shall be awarded to the responsible bidder(s) submitting the lowest
responsive bid(s) for the construction of the DIF Improvements.
(c) DEVELOPER shall require, and the specifications and bid and
contract documents shall require, all such contractors to pay prevailing
wages (in accordance with Articles 1 and 2 of Chapter 1, Part 7,
Division 2 of the Labor Code) and to otherwise comply with applicable
provisions of the Labor Code, the Government Code and the Public
Contract Code relating to public works projects of cities and as
required by the Charter of the City of San Bernardino, the San
Bernardino Municipal Code, and the procedures and standards of
CITY with respect to the construction of its public works projects or as
otherwise directed by the Public Works Department.
Notwithstanding the foregoing, DEVELOPER shall have the right to
request a determination from the Public Works Department that (a)
the Project is not subject to prevailing wages based on Labor Code
Section 1720(c)(3), and therefore, (b) not required to carry out the
Project as a public works project. A request for determination shall be
3
DIF CREDIT AGREEMENT
Ridge San Bernardino One
made in writing by DEVELOPER to the CITY Public Works Director
and the CITY Public Works Director, or his or her designee, shall use
his or her best efforts to make a determination within five (5) calendar
days of receipt of a written request for a determination from
DEVELOPER. In the event that the Public Works Department makes
the determinations requested by Developer, then this Subsection 2.4(c)
shall not apply to this Project.
(d) All such contractors shall be required to provide proof of insurance
coverage throughout the term of the construction of the DIF
Improvements which they will construct in conformance with CITY's
standard procedures and requirements.
(e) DEVELOPER and all such contractors shall comply with such other
requirements relating to the construction of the DIF Improvements
which CITY may impose by written notification delivered to
DEVELOPER and each such contractor at any time, either prior to the
receipt of bids by DEVELOPER for the construction of the DIF
Improvements, or, to the extent required as a result of changes in
applicable laws, during the progress of construction thereof.
DEVELOPER shall provide proof to CITY, at such intervals and in such form as
CITY may require that the foregoing requirements have been satisfied.
2.5 Quality of Work; Compliance With Laws and Codes. The construction plans
and specifications for the DIF Improvements shall be prepared in accordance with
all applicable federal, state and local laws, ordinances, regulations, codes,
standards, and other requirements. The DIF Improvements shall be completed in
accordance with all approved maps, plans, specifications, standard drawings, and
special amendments thereto on file with CITY, as well as all applicable federal,
state, and local laws, ordinances, regulations, codes, standards, and other
requirements applicable at the time work is actually commenced.
2.6 Standard of Performance. DEVELOPER and its contractors, if any, shall
perform all work required, constructing the DIF Improvements in a skillful and
workmanlike manner, and consistent with the standards generally recognized as
being employed by professionals in the same discipline in the State of California.
DEVELOPER represents and maintains that it or its contractors shall be skilled in
the professional calling necessary to perform the work. DEVELOPER warrants that
all of its employees and contractors shall have sufficient skill and experience to
perform the work assigned to them, and that they shall have all licenses, permits,
qualifications and approvals of whatever nature that are legally required to perform
the work, and that such licenses, permits, qualifications and approvals shall be
maintained throughout the term of this Agreement.
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2.7 Alterations to DIF Improvements. All work shall be done and the DIF
Improvements completed as shown on approved plans and specifications, and any
subsequent alterations thereto. If during the course of construction and installation
it is determined that the public interest requires alterations in the DIF
Improvements, DEVELOPER shall undertake such design and construction
changes as may be reasonably required by CITY. Any and all alterations in the
plans and specifications and the DIF Improvements to be completed may be
accomplished without first giving prior notice thereof to DEVELOPER's surety for
this Agreement.
3.0 Maintenance of DIF Improvements. CITY shall not be responsible or liable for
the maintenance or care of the DIF Improvements until CITY approves and accepts
them. CITY shall exercise no control over the DIF Improvements until accepted.
Any use by any person of the DIF Improvements, or any portion thereof, shall be at
the sole and exclusive risk of DEVELOPER at all times prior to CITY's acceptance
of the DIF Improvements. DEVELOPER shall maintain all of the DIF
Improvements in a state of good repair until they are completed by DEVELOPER
and approved and accepted by CITY, and until the security for the performance of
this Agreement is released. It shall be DEVELOPER's responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perform such
maintenance work when notified to do so by CITY. If DEVELOPER fails to properly
prosecute its maintenance obligation under this section, CITY may do all work
necessary for such maintenance and the cost thereof shall be the responsibility of
DEVELOPER and its surety under this Agreement. CITY shall not be responsible
or liable for any damages or injury of any nature in any way related to or caused by
the DIF Improvements or their condition prior to acceptance.
4.0 Fees and Charges. DEVELOPER shall, at its sole cost, expense, and liability,
pay all fees, charges, and taxes arising out of the construction of the DIF
Improvements, including, but not limited to, all plan check, design review,
engineering, inspection, sewer treatment connection fees, and other service fees
established by CITY.
5.0 CITY Inspection of DIF Improvements. DEVELOPER shall, at its sole cost,
expense, and liability, and at all times during construction of the DIF
Improvements, maintain reasonable and safe facilities and provide safe access for
inspection by CITY of the DIF Improvements and areas where construction of the
DIF Improvements is occurring or will occur.
6.0 Liens. Upon the expiration of the time for the recording of claims of liens as
prescribed by Sections 8412 and 8414 of the Civil Code with respect to the DIF
Improvements, DEVELOPER shall provide to CITY such evidence or proof as CITY
shall require that all persons, firms and corporations supplying work, labor,
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materials, supplies and equipment to the construction of the DIF Improvements,
have been paid, and that no claims of liens have been recorded by or on behalf of
any such person, firm or corporation. Rather than await the expiration of the said
time for the recording of claims of liens, DEVELOPER may elect to provide to CITY
a title insurance policy or other security acceptable to CITY guaranteeing that no
such claims of liens will be recorded or become a lien upon any of the Property.
7.0 Acceptance ' of DIF Improvements; As -Built or Record Drawings. If the DIF
Improvements are properly completed by DEVELOPER and approved by CITY, and
if they comply with all applicable federal, state and local laws, ordinances,
regulations, codes, standards, and other requirements, CITY shall be authorized to
accept the DIF Improvements. CITY may, in its sole and absolute discretion, accept
fully completed portions of the DIF Improvements prior to such time as all of the
DIF Improvements are complete, which shall not release or modify DEVELOPER's
obligation to complete the remainder of the DIF Improvements. Upon the total or
partial acceptance of the DIF Improvements by CITY, DEVELOPER shall file with
the Recorder's Office of the County of San Bernardino a notice of completion for the
accepted DIF Improvements in accordance with California Civil Code sections 8182,
8184, 9204, and 9208 ("Notice of Completion"), at which time the accepted DIF
Improvements shall become the sole and exclusive property of CITY without any
payment therefore. Notwithstanding the foregoing, CITY may not accept any DIF
Improvements unless and until DEVELOPER provides one (1) set of "as -built" or
record drawings or plans to the CITY for all such DIF Improvements. The
drawings shall be certified and shall reflect the condition of the DIF Improvements
as constructed, with all changes incorporated therein.
8.0 Warranty and Guarantee. DEVELOPER hereby warrants and guarantees all
the DIF Improvements against any defective work or labor done, or defective
materials furnished in the performance of this Agreement, including the
maintenance of the DIF Improvements, for a period of one (1) year following
completion of the work and acceptance by CITY ("Warranty"). During the Warranty,
DEVELOPER shall repair, replace, or reconstruct any defective or otherwise
unsatisfactory portion of the DIF Improvements, in accordance with the current
ordinances, resolutions, regulations, codes, standards, or other requirements of
CITY, and to the approval of CITY. All repairs, replacements, or reconstruction
during the Warranty shall be at the sole cost, expense, and liability of DEVELOPER
and its surety. As to any DIF Improvements which have been repaired, replaced, or
reconstructed during the Warranty, DEVELOPER and its surety hereby agree to
extend the Warranty for an additional one (1) year period following CITY's
acceptance of the repaired, replaced, or reconstructed DIF Improvements. Nothing
herein shall relieve DEVELOPER from any other liability it may have under
federal, state, or local law to repair, replace, or reconstruct any DIF Improvement
following expiration of the Warranty or any extension thereof. DEVELOPER's
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warranty obligation under this section shall survive the expiration or termination of
this Agreement.
9.0 Administrative Costs. If DEVELOPER fails to construct and install all or any
part of the DIF Improvements, or if DEVELOPER fails to comply with any other
obligation contained herein, DEVELOPER and its surety shall be jointly and
severally liable to CITY for all administrative expenses, fees, and costs, including
reasonable attorney's fees and costs, incurred in obtaining compliance with this
Agreement or in processing any legal action or for any other remedies permitted by
law.
10.1 Default; Notice; Remedies.
10.2 Notice. If DEVELOPER neglects, refuses, or fails to fulfill or timely complete
any obligation, term, or condition of this Agreement, or if CITY determines there is
a violation of any federal, state, or local law, ordinance, regulation, code, standard,
or other requirement, CITY may at any time thereafter declare DEVELOPER to be
in default or violation of this Agreement and make written demand upon
DEVELOPER or its surety, or both, to immediately remedy the default or violation
("Notice"). DEVELOPER shall substantially commence the work required to remedy
the default or violation within ten (10) days of the Notice. If the default or violation
constitutes an immediate threat to the public health, safety, or welfare, CITY may
provide the Notice verbally, and DEVELOPER shall substantially commence the
required work within twenty-four (24) hours thereof. Immediately upon CITY's
issuance of the Notice, DEVELOPER and its surety shall be liable to CITY for all
costs of construction and installation of the DIF Improvements and all other
administrative costs or expenses as provided for in this Section 10.0 of this
Agreement.
10.3 Failure to Remedy; CITY Action. If the work required to remedy the noticed
default or violation is not diligently prosecuted to a completion acceptable to CITY
within the time frame contained in the Notice, CITY may complete all remaining
work, arrange for the completion of all remaining work, and/or conduct such
remedial activity as in its sole and absolute discretion it believes is required to
remedy the default or violation. All such work or remedial activity shall be at the
sole and absolute cost, expense, and liability of DEVELOPER and its surety,
without the necessity of giving any further notice to DEVELOPER or surety. CITY's
right to take such actions shall in no way be limited by the fact that DEVELOPER
or its surety may have constructed any of the DIF Improvements at the time of
CITY's demand for performance. In the event CITY elects to complete or arrange for
completion of the remaining work and the DIF Improvements, CITY may require all
work by DEVELOPER or its surety to cease in order to allow adequate coordination
by CITY.
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10.4 Other Remedies. No action by CITY pursuant to this Section 10.0 et seq. of
this Agreement shall prohibit CITY from exercising any other right or pursuing any
other legal or equitable remedy available under this Agreement or any federal,
state, or local law. CITY may exercise its rights and remedies independently or
cumulatively, and CITY may pursue inconsistent remedies. CITY may institute an
action for damages, injunctive relief, or specific performance.
11.1 Security; Surety Bonds. Prior to the commencement of any work on the DIF
Improvements, DEVELOPER or its contractor shall provide CITY with surety
bonds in the amounts and under the terms set forth below ("Security"). The amount
of the Security shall be based on the estimated actual costs to construct the DIF
Improvements, as determined by CITY after DEVELOPER has awarded a contract
for construction of the DIF Improvements to the lowest responsive and responsible
bidder in accordance with this Agreement ("Estimated Costs"). If CITY determines,
in its sole and absolute discretion, that the Estimated Costs have changed,
DEVELOPER or its contractor shall adjust the Security in the amount requested by
CITY. DEVELOPER's compliance with this Section 11.0 et seq. of this Agreement
shall in no way limit or modify DEVELOPER's indemnification obligation provided
in Section 12.0 of this Agreement.
11.2 Performance Bond. To guarantee the faithful performance of the DIF
Improvements and all the provisions of this Agreement, to protect CITY if
DEVELOPER is in default as set forth in Section 10.0 et seq. of this Agreement, and
to secure the one-year guarantee and warranty of the DIF Improvements,
DEVELOPER or its contractor shall provide CITY a faithful performance bond in
an amount which sum shall be not less than one hundred percent (100%) of the
Estimated Costs. The CITY may, in its sole and absolute discretion, partially
release a portion or portions of the security provided under this section as the DIF
Improvements are accepted by CITY, provided that DEVELOPER is not in default
on any provision of this Agreement and the total remaining security is not less than
fifty percent (50%) of the Estimated Costs. All security provided under this section
shall be released at the end of the Warranty period, or any extension thereof as
provided in Section 11.0 of this Agreement, provided that DEVELOPER is not in
default on any provision of this Agreement.
11.3 Labor & Material Bond. To secure payment to the contractors,
subcontractors, laborers, materialmen, and other persons furnishing labor,
materials, or equipment for performance of the DIF Improvements and this
Agreement, DEVELOPER or its contractor shall provide CITY a labor and
materials bond in an amount which sum shall not be less than one hundred percent
(100%) of the Estimated Costs. The security provided under this section may be
released by written authorization of CITY after six (6) months from the date CITY
accepts the DIF Improvements. The amount of such security shall be reduced by the
total of all stop notice or mechanic's lien claims of which CITY is aware, plus an
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amount equal to twenty percent (20%) of such claims for reimbursement of CITY's
anticipated administrative and legal expenses arising out of such claims.
11.4 Additional Requirements. The surety for any surety bonds provided as
Security shall have a current A.M. Best rating of at least "A" and FSC -VIII, shall be
licensed to do business in California, shall have a physical office within one hundred
(100) miles of the city limits, and shall be satisfactory to CITY. As part of the
obligation secured by the Security and in addition to the face amount of the
Security, DEVELOPER, its contractor or the surety shall secure the costs and
reasonable expenses and fees, including reasonable attorney's fees and costs,
incurred by CITY in enforcing the obligations of this Agreement. DEVELOPER, its
contractor and the surety shall stipulate and agree that no change, extension of
time, alteration, or addition to the terms of this Agreement, the DIF Improvements,
or the plans and specifications for the DIF Improvements shall in any way affect its
obligation on the Security.
11.5 Evidence and Incorporation of Security. Evidence of the Security shall be
provided on the forms set forth in Exhibit `B", unless other forms are deemed
acceptable by the CITY, and when such forms are completed to the satisfaction of
CITY, the forms and evidence of the Security shall be attached hereto as Exhibit "B"
and incorporated herein by this reference.
12.0 Indemnification. The DEVELOPER agrees to defend, indemnify, and hold
harmless the CITY, its officers, elected and appointed officials, employees, agents,
and volunteers (each, an "Indemnified Party") from and against any and all claims,
damages, losses, expenses, fines, penalties, judgments, demands, and actual, direct,
documented and reasonable out -of pocket defense costs and expenses (including,
without limitation, amounts paid in compromise or settlement and reasonable
outside legal fees arising from litigation of every nature or liability of any kind or
nature including civil, criminal, administrative or investigative) arising out of or in
any way related to or caused by the DIF Improvements or their condition prior to
CITY's approval and acceptance of the DIF Improvements, except as to such loss or
damage which was caused by the sole negligence or willful misconduct of an
Indemnified Party. DEVELOPER hereby waives any and all rights to any types of
express or implied indemnity against any of the Indemnified Parties arising out of
the above referenced conduct. The policy limits of any insurance of the
DEVELOPER, its affiliates or other parties are not a limitation upon the obligation
of the DEVELOPER, including without limitation, the amount of indemnification to
be provided by the DEVELOPER. The provisions of this section shall survive the
termination of this Agreement.
13.1 Insurance.
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13.2 Types; Amounts. DEVELOPER shall procure and maintain, and shall require
its contractors to procure and maintain, during performance of this Agreement,
insurance of the types and in the amounts described below ("Required Insurance").
If any of the Required Insurance contains a general aggregate limit, such insurance
shall apply separately to this Agreement or be no less than two times the specified
occurrence limit.
(a) General Liability. Occurrence version general liability insurance, or
equivalent form, with a combined single limit of not less than Two
Million Dollars ($2,000,000) per occurrence for bodily injury, personal
injury, and property damage.
(b) Automobile Liability. Automobile liability insurance with a combined
single limit of not less than One Million Dollars ($1,000,000) per
occurrence. Such insurance shall include coverage for the ownership,
operation, maintenance, use, loading, or unloading of any auto owned,
leased, hired, or borrowed by the insured or for which the insured is
responsible.
(c) Workers' Compensation. Workers' compensation insurance with limits
as required by the Labor Code of the State of California and employers'
liability insurance with limits of not less than One Million Dollars
($1,000,000) per occurrence, at all times during which insured retains
employees.
(d) Professional Liability. For any consultant or other professional who
will engineer or design the DIF Improvements, liability insurance for
errors and omissions with limits not less than Two Million Dollars
($2,000,000) per occurrence, shall be procured and maintained for a
period of five (5) years following completion of the DIF Improvements.
Such insurance shall be endorsed to include contractual liability.
13.3 Deductibles. Any deductibles or self-insured retentions must be declared to
and approved by CITY. At the option of CITY, either: (a) the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects CITY, its
elected officials, officers, employees, agents, and volunteers; or (b) DEVELOPER
and its contractors shall provide a financial guarantee satisfactory to CITY
guaranteeing payment of losses and related investigation costs, claims, and
administrative and defense expenses.
13.4 Additional Insured; Separation of Insureds. The Required Insurance shall
name CITY, its elected officials, officers, employees, and agents as additional
insureds with respect to work performed by or on behalf of DEVELOPER or its
contractors, including any materials, parts, or equipment furnished in connection
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therewith. The Required Insurance shall contain standard separation of insureds
provisions, and shall contain no special limitations on the scope of its protection to
CITY, its elected officials, officers, employees, or agents.
13.5 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be
primary with respect to any insurance or self-insurance programs covering CITY,
its elected officials, officers, employees, or agents. The policy required for workers'
compensation insurance shall provide that the insurance company waives all right
of recovery by way of subrogation against CITY in connection with any damage or
harm covered by such policy.
13.6 Certificates; Verification. DEVELOPER and its contractors shall furnish
CITY with original certificates of insurance and endorsements effecting coverage for
the Required Insurance. The certificates and endorsements for each insurance
policy shall be signed by a person authorized by that insurer to bind coverage on its
behalf. All certificates and endorsements must be received and approved by CITY
before work pursuant to this Agreement can begin. CITY reserves the right to
require complete, certified copies of all required insurance policies, at any time.
13.7 Term; Cancellation Notice. DEVELOPER and its contractors shall maintain
the Required Insurance for the term of this Agreement and shall replace any
certificate, policy, or endorsement which will expire prior to that date. All policies
shall be endorsed to provide that the Required Insurance shall not be suspended,
voided, reduced, canceled, or allowed to expire except on thirty (30) days' prior
written notice to CITY.
13.8 Insurer Rating. Unless approved in writing by CITY, all Required Insurance
shall be placed with insurers licensed to do business in the State of California and
with a current A.M. Best rating of at least "A" and FSC -VIII.
14 DIF Credits.
14.1 DEVELOPER's DIF Obligation. DEVELOPER hereby agrees and accepts
that as of the date of this Agreement, the amount DEVELOPER is obligated to pay
to CITY as part of the DIF Program for the Local Circulation DIF and Regional
Circulation DIF is ONE MILLION TWO HUNDRED FIFTY SEVEN NINE
HUNDRED EIGHTY EIGHT DOLLARS AND FIFTY EIGHT CENTS
($1,257,988.58) ("DIF Obligation"). This DIF Obligation has been initially
determined under the nexus study and fee schedule in effect for the CITY at the
time of this Agreement. This DIF Obligation does not have to be paid until the
Certificate of Occupancy is obtained.
In the event that the amount of the DIF Credit has not been determined at the time
DEVELOPER requests a Certificate of Occupancy, the Parties agree to determine in
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good faith an estimate of the DIF Credit and the DIF Obligation will offset
accordingly, based on the estimated DIF Credit. Once the actual DIF Credit is
determined, the CITY will reconcile it with the estimated DIF Credit used in
determining the DEVELOPER'S DIF Obligation and either the CITY will reimburse
the DEVELOPER or the DEVELOPER will reimburse the CITY, as the case may
be, for any overage or underage in the payment DEVELOPER made against the
DIF Obligation. Notwithstanding the foregoing, DEVELOPER agrees that this
Agreement shall not estop CITY from adjusting the DIF.
14.2 Credit Offset Against DIF Obligation. Pursuant to section 3.27.140 of the San
Bernardino Municipal Code and in consideration for DEVELOPER's obligation
under this Agreement for the delivery of DIF Improvements, credit shall be applied
by CITY to offset the DIF Obligation subject to adjustment and reconciliation under
Section 14.4 of this Agreement ("DIF Credit"). DEVELOPER agrees that the dollar
amount of the DIF Credit shall be equal to the lesser of (A) the total actual costs
incurred by DEVELOPER in securing the DIF Improvements covered under this
Agreement ("DIF Verified Costs"); or (B) the estimated cost of the DIF
Improvements as identified in the DIF study in effect at the time of the issuance of
a building permit for the project ("DIF Unit Cost Assumptions").
The DIF Verified Costs and the DIF Unit Cost Assumptions shall hereafter be
collectively referred to as "DIF Estimated Credit". At no time will the DIF Credit
exceed the DEVELOPER's DIF Obligation. If the dollar amount of the DIF
Estimated Credit exceeds the dollar amount of the DIF Obligation, DEVELOPER
will be deemed to have completely satisfied its DIF Obligation for the Project and
may apply for a reimbursement agreement, to the extent applicable, as provided in
Section 14.5 of this Agreement. CITY shall provide DEVELOPER written notice of
the determinations that CITY makes pursuant to this section, including how the
DIF Credit is applied to offset the DIF Obligation as described above.
14.3 Verified Cost of the DIF Improvements. Upon recordation of the Notice of
Completion for the DIF Improvements and acceptance of the DIF Improvements by
CITY, DEVELOPER shall submit to the CITY Public Works Director the applicable
information set forth in the attached Exhibit "C". The CITY Public Works Director,
or his or her designee, shall use the information provided by DEVELOPER to
calculate the DIF Verified Costs. The CITY Public Works Director will use his or
her best efforts to determine the amount of the DIF Verified Costs and provide
DEVELOPER written notice thereof within thirty (30) calendar days of receipt of all
the required information from DEVELOPER.
14.4 Reconciliation, Final Credit Offset Against DIF Obligations. The
DEVELOPER is aware of and accepts the fact that credits are speculative and
conceptual in nature. The actual amount of DIF Credit that shall be applied by
CITY to offset the DIF Obligation shall be equal to the lesser of. (A) the DIF
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Verified Costs or (B) the DIF Unit Cost Assumptions as determined in accordance
with Section 14.2 of this Agreement ("Actual DIF Credit"). No Actual DIF Credit
will be awarded until the DIF Verified Costs are determined through the
reconciliation process. Please be advised that while a DEVELOPER may use an
engineer's estimate in order to estimate DIF Credits for project planning purposes,
the Actual DIF Credit awarded will only be determined by the reconciliation
process.
(a) DIF Balance. If the dollar amount of the Actual DIF Credit is less than
the dollar amount of the DIF Obligation, the CITY Public Works
Director shall provide written notice to DEVELOPER of the amount of
the difference owed ("DIF Balance") and DEVELOPER shall pay the
DIF Balance to fully satisfy the DIF Obligation.
(b) DIF Reimbursement. If the dollar amount of the Actual DIF Credit
exceeds the DIF Obligation, DEVELOPER will be deemed to have fully
satisfied the DIF Obligation for the Project and may apply for a
reimbursement agreement, to the extent applicable, as provided in
Section 14.5 of this Agreement. CITY shall provide DEVELOPER
written notice of the determinations that CITY makes pursuant to this
section.
(c) DIF Overpayment. If the dollar amount of the Actual DIF Credit
exceeds the Estimated Credit, but is less than the DIF Obligation, but
the Actual Credit plus additional monies collected by CITY from
DEVELOPER for the DIF Obligation exceed the DIF Obligation ("DIF
Overpayment"), DEVELOPER will be deemed to have fully satisfied
the DIF Obligation for the Project and may be entitled to a refund.
14.5 Reimbursement Agreement. If authorized under either Section 14.2 or
Section 14.4 DEVELOPER may apply to CITY for a reimbursement agreement for
the amount by which the Actual DIF Credit exceeds the DIF Obligation, as
determined pursuant to Section 14.4 of this Agreement, section 3.27.150 of the San
Bernardino Municipal Code, and any policies adopted by the CITY's regarding
development impact fee credits or reimbursement ("Reimbursement Agreement"). If
CITY agrees, in its reasonable discretion, to a Reimbursement Agreement with
DEVELOPER, the Reimbursement Agreement shall be executed on the form set
forth in Exhibit "D," and shall contain the terms and conditions set forth therein.
The Parties agree that the Reimbursement Agreement shall be subject to all terms
and conditions of this Agreement, and that upon execution, an executed copy of the
Reimbursement Agreement shall be attached hereto and shall be incorporated
herein as a material part of this Agreement as though fully set forth herein.
15.1 Miscellaneous.
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15.2 Assignment. DEVELOPER may assign all or a portion of its rights pursuant
to this Agreement to a purchaser of a portion or portions of the Property
("Assignment"). DEVELOPER and such purchaser and assignee ("Assignee") shall
provide to CITY such reasonable proof as it may require that Assignee is the
purchaser of such portions of the Property. Any assignment pursuant to this section
shall not be effective unless and until DEVELOPER and Assignee have executed an
assignment agreement with CITY in a form reasonably acceptable to CITY,
whereby DEVELOPER and Assignee agree, except as may be otherwise specifically
provided therein, to the following: (1) that Assignee shall receive all or a portion of
DEVELOPER's rights pursuant to this Agreement, including such credit as is
determined to be applicable to the portion of the Property purchased by Assignee
pursuant to Section 14.0 et seq. of this Agreement, and (2) that Assignee shall be
bound by all applicable provisions of this Agreement.
15.3 Relationship Between the Parties. The Parties hereby mutually agree that
this Agreement shall not operate to create the relationship of partnership, joint
venture, or CITY between CITY and DEVELOPER. DEVELOPER's contractors are
exclusively and solely under the control and dominion of DEVELOPER. Nothing
herein shall be deemed to make DEVELOPER or its contractors an agent or
contractor of CITY.
15.4 Warranty as to Property Ownership; Authority to Enter Agreement.
DEVELOPER hereby warrants that it owns fee title to the Property and that it has
the legal capacity to enter into this Agreement. Each Party warrants that the
individuals who have signed this Agreement have the legal power, right, and
authority make this Agreement and bind each respective Party.
15.5 Prohibited Interests. DEVELOPER warrants that it has not employed or
retained any company or person, other than a bona fide employee working solely for
DEVELOPER, to solicit or secure this Agreement. DEVELOPER also warrants that
it has not paid or agreed to pay any company or person, other than a bona fide
employee working solely for DEVELOPER, any fee, commission, percentage,
brokerage fee, gift, or other consideration contingent upon the making of this
Agreement. For breach of this warranty, CITY shall have the right to rescind this
Agreement without liability.
15.6 Notices. All notices, demands, invoices, and written communications shall be
in writing and delivered to the following addresses or such other addresses as the
Parties may designate by written notice:
To CITY: City of San Bernardino
Attn: Public Works Director
290 North "D" Street
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San Bernardino, CA 92401
To DEVELOPER: Ridge Development Company, LLC
Attn: Dennis Rice, Executive Vice President
7777 Center Avenue, Suite 690
Huntington Beach, CA 92647
Depending upon the method of transmittal, notice shall be deemed received as
follows: by messenger, as of the date delivered; and by U.S. Mail first class postage
prepaid, as of 72 hours after deposit in the U.S. Mail.
15.7 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as
may be necessary, appropriate, or convenient to attain the purposes of this
Agreement.
15.8 Construction; References; Captions. It being agreed the Parties or their
agents have participated in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly
for or against any Party. Any term referencing time, days, or period for performance
shall be deemed calendar days and not work days. All references to DEVELOPER
include all personnel, employees, agents, and contractors of DEVELOPER, except
as otherwise specified in this Agreement. All references to CITY include its elected
officials, officers, employees, agents, and volunteers except as otherwise specified in
this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or
describe the scope, content, or intent of this Agreement.
15.9 Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both
Parties.
15.10 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual right by custom, estoppel, or otherwise.
15.11 Binding Effect. Each and all of the covenants and conditions shall be binding
on and shall inure to the benefit of the Parties, and their successors, heirs, personal
representatives, or assigns. This section shall not be construed as an authorization
for any Party to assign any right or obligation.
15.12 No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
15
DIF CREDIT AGREEMENT
Ridge San Bernardino One
15.13 Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
15.14 Consent to Jurisdiction and Venue. This Agreement shall be construed in
accordance with and governed by the laws of the State of California. Any legal
action or proceeding brought to interpret or enforce this Agreement, or which in any
way arises out of the Parties' activities undertaken pursuant to this Agreement,
shall be filed and prosecuted in the appropriate California State Court in the
County of San Bernardino, California. Each Party waives the benefit of any
provision of state or federal law providing for a change of venue to any other court
or jurisdiction including, without limitation, a change of venue based on the fact
that a governmental entity is a party to the action or proceeding, or that a federal
right or question is involved or alleged to be involved in the action or proceeding.
Without limiting the generality of the foregoing waiver, DEVELOPER expressly
waives any right to have venue transferred pursuant to California Code of Civil
Procedure Section 394.
15.15 Time is of the Essence. Time is of the essence in this Agreement, and the
Parties agree to execute all documents and proceed with due diligence to complete
all covenants and conditions.
15.16 Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original and which collectively shall constitute one instrument.
15.17 Entire Agreement. This Agreement contains the entire agreement between
CITY and DEVELOPER and supersedes any prior oral or written statements or
agreements between CITY and DEVELOPER.
[Signature Page Follows]
16
DIF CREDIT AGREEMENT
Ridge San Bernardino One
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
CITY OF SAN BERNARDINO
Andrea M. Miller, City Manager
Approved as to Legal Form=
Gary D. Saenz, City Attorney
By,,
A1'1'E. T
Georgeann Hanna, CMC, City Clerk:
DEVELOPER
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By: <
17
DIF CREDIT AGREEMENT
Ridge San Bernardino One
EXHIBIT "A'
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT A-1
R896-000 -- 3069579.3
EXHIBIT " W
FORMS FOR SECURITY
EXHIBIT B-1
R896-000 -- 3069579.3
i•1I •
INITIAL PREMIUM:
SUBJECT TO RENEWAL
PERFORMANCE BOND
WHEREAS, the City of San Bernardino ("CITY") has executed an agreement
with [Developer] (hereinafter "DEVELOPER"), requiring DEVELOPER to perform
certain work consisting of but not limited to, furnishing all labor, materials, tools,
equipment, services, and incidentals for the construction of street and
transportation system improvements (hereinafter the "Work");
WHEREAS, the Work to be performed by DEVELOPER is more particularly
set forth in that certain DIF Credit Agreement dated [date] (hereinafter the
"Agreement"); and
WHEREAS, the Agreement is hereby referred to and incorporated herein by
this reference; and
WHEREAS, DEVELOPER or its contractor is required by the Agreement to
provide a good and sufficient bond for performance of the Agreement, and to
guarantee and warranty the Work constructed thereunder.
NOW, THEREFORE, we the undersigned, [Developer], as Principal and
[Surety], a corporation organized and existing under the laws of the State of [state]
and duly authorized to transact business under the laws of the State of California,
as Surety, are held and firmly bound unto the CITYin the sum of [Amount] W, said
sum being not less than one hundred percent (100%) of the total cost of the Work
as set forth in the Agreement, we bind ourselves, our heirs, executors and
administrators, successors and assigns, jointly and severally, firmly by these
presents.
THE CONDITION OF THIS OBLIGATION is such, that if DEVELOPER and
its contractors, or their heirs, executors, administrators, successors or assigns, shall
in all things stand to and abide by, and well and truly keep and perform the
covenants, conditions, agreements, guarantees, and warranties in the Agreement
and any alteration thereof made as therein provided, to be kept and performed at
the time and in the manner therein specified and in all respects according to their
intent and meaning, and to indemnify and save harmless CITY, its officers,
employees, and agents, as stipulated in the Agreement, then this obligation shall
become null and void; otherwise it shall be and remain in full force and effect.
EXHIBIT B-2
R896-000 -- 3069579.3
As part of the obligation secured hereby, and in addition to the face amount
specified therefor, there shall be included costs and reasonable expenses and fees,
including reasonable attorney's fees, incurred by CITY in successfully enforcing
such obligation, all to be taxed as costs and included in any judgment rendered.
The said Surety, for value received, hereby stipulates and agrees that no
change, extension of time, alteration or additions to the terms of the said
Agreement or to the Work to be performed thereunder or the specification
accompanying the same shall in any way affect its obligations on this bond, and it
does hereby waive notice of any such change, extension of time, alteration or
addition to the terms of the Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this
[number] day of [month], 2017.
Principal
By:
Its:
Surety
Attorney- in- Fact
EXHIBIT B-3
R896-000 -- 3069579.3
BOND NO.
INITIAL PREMIUM
SUBJECT TO RENEWAL
LABOR & MATERIAL BOND
WHEREAS, the City of San Bernardino ("CITY") has executed an agreement
with [Developer] (hereinafter "DEVELOPER"), requiring DEVELOPER to perform
certain work consisting of but not limited to, furnishing all labor, materials, tools,
equipment, services, and incidentals for the construction of street and
transportation system improvements (hereinafter "Work");
WHEREAS, the Work to be performed by DEVELOPER is more particularly
set forth in that certain DIF Credit Agreement dated [date] (hereinafter the
"Agreement"); and
WHEREAS, DEVELOPER or its contractor is required to furnish a bond in
connection with the Agreement providing that if DEVELOPER or any of his or its
contractors shall fail to pay for any materials, provisions, or other supplies, or terms
used in, upon, for or about the performance of the Work contracted to be done, or for
any work or labor done thereon of any kind, or for amounts due under the
provisions of 3248 of the California Civil Code, with respect to such work or labor,
that the Surety on this bond will pay the same together with a reasonable attorney's
fee in case suit is brought on the bond.
NOW, THEREFORE, we the undersigned, [Developer], as Principal and
[Surety], a corporation organized and existing under the laws of the State of [State]
and duly authorized to transact business under the laws of the State of California,
as Surety, are held and firmly bound unto the CITY and to any and all material
men, persons, companies or corporations furnishing materials, provisions, and other
supplies used in, upon, for or about the performance of the said Work, and all
persons, companies or corporations renting or hiring teams, or implements or
machinery, for or contributing to said Work to be done, and all persons performing
work or labor upon the same and all persons supplying both work and materials as
aforesaid, the sum of [amount] ($), said sum being not less than 100% of the
total amount payable by DEVELOPER under the terms of the Agreement, for
which payment well and truly to be made, we bind ourselves, our heirs, executors
and administrators, successors and assigns jointly and severally, firmly by these
presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if DEVELOPER or
its contractors, or their heirs, executors, administrators, successors, or assigns,
EXHIBIT B-4
R896-000 -- 3069579.3
shall fail to pay for any materials, provisions, or other supplies or machinery used
in, upon, for or about the performance of the Work contracted to be done, or for work
or labor thereon of any kind, or fail to pay any of the persons named in California
Civil Code Section 9100, or amounts due under the Unemployment Insurance Code
with respect to work or labor performed by any such claimant, or for any amounts
required to be deducted, withheld, and paid over to the Employment Development
Department from the wages of employees of the contractor and his subcontractors
pursuant to Section 13020 of the Unemployment Insurance Code with respect to
such work and labor, and all other applicable laws of the State of California and
rules and regulations of its agencies, then said Surety will pay the same in or to an
amount not exceeding the sum specified herein.
In case legal action is required to enforce the provisions of this bond, the
prevailing party shall be entitled to recover reasonable attorneys' fees in addition to
court costs, necessary disbursements and other consequential damages. In addition
to the provisions hereinabove, it is agreed that this bond will inure to the benefit of
any and all persons, companies and corporations entitled to make claims under
Sections 8024, 8400, 8402, 8404, 8430, 9100 of the California Civil Code, so as to
give a right of action to them or their assigns in any suit brought upon this bond.
The said Surety, for value received, hereby stipulates and agrees that no
change, extension of time, alteration or additions to the terms of the Agreement or
to the Work to be performed thereunder or the specification accompanying the same
shall in any way affect its obligations on this bond, and it does hereby waive notice
of any such change, extension of time, alteration or addition to the terms of the
Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this
[number] day of [month], 2017.
Principal
By:
Its:
Surety
Attorney- in- Fact
EXHIBIT B-5
R896-000 - 3069579.3
EXHIBIT "C"
DOCUMENTATION TO BE PROVIDED TO CITY BY DEVELOPER FOR
DETERMINATION OF CONSTRUCTION COSTS
To assist CITY in determining the Construction Costs for a completed DIF
Improvement, DEVELOPER shall provide the following documents to CITY=
1. Plans, specifications and DEVELOPER's civil engineer's cost estimate;
2. List of bidders from whom bids were requested;
3. Construction schedules and progress reports;
4. Contracts, insurance certificates and change orders with each contractor or
vendor;
5. Invoices received from all vendors;
6. Canceled checks for payments made to contractors and vendors (copy both
front and back of canceled checks);
7. Spreadsheet showing total costs incurred in and related to the construction of
each DIF Improvement and the check number for each item of cost and invoice;
8. Final lien releases from each contractor and vendor; and
9. Such further documentation as may be reasonably required by CITY to
evidence the completion of construction and the payment of each item of cost and
invoice.
EXHIBIT C-1
8896-000 -- 3069579.3
EXHIBIT "D"
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT ("Agreement") is entered into this
[day] day of [month], 2017, by and between the CITY OF SAN BERNARDINO,
a California municipal corporation ("CITY"), and [Entity], a California [INSERT
TYPE OF ENTITY - corporation, partnership, sole proprietorship or other legal
entity], ("DEVELOPER"). CITY and DEVELOPER are sometimes hereinafter
referred to individually as "Party" and collectively as "Parties."
RECITALS
WHEREAS, CITY and DEVELOPER are parties to an agreement dated
[date], entitled "DIF Credit Agreement" (hereinafter "Credit Agreement");
WHEREAS, Sections 14.1 through 14.4 of the Credit Agreement provide that
DEVELOPER is obligated to pay CITY the DIF Obligation, as defined therein, but
shall receive credit to offset the DIF Obligation if DEVELOPER constructs and
CITY accepts the DIF Improvements in accordance with the Credit Agreement;
WHEREAS, Section 14.5 of the Credit Agreement provides that if the dollar
amount of the DIF credit to which DEVELOPER is entitled under the Credit
Agreement exceeds the dollar amount of the DIF Obligation, DEVELOPER may
apply to CITY for a reimbursement agreement for the amount by which the DIF
credit exceeds the DIF Obligation;
WHEREAS, Section 14.5 additionally provides that a reimbursement
agreement executed pursuant to the Credit Agreement (i) shall be executed on the
form attached to the Credit Agreement, (ii) shall contain the terms and conditions
set forth therein, (iii) shall be subject to all terms and conditions of the Credit
Agreement, and (iv) shall be attached upon execution to the Credit Agreement and
incorporated therein as a material part of the Credit Agreement as though fully set
forth therein.
NOW, THEREFORE, for the purposes set forth herein, and for good and
valuable consideration, the adequacy of which is hereby acknowledged, the Parties
hereby agree as follows:
TERMS
1.0 Incorporation of Recitals. The Parties hereby affirm the facts set forth in the
Recitals above and agree to the incorporation of the Recitals as though fully set
forth herein.
EXHIBIT D-1
R896-000 -- 3069579.3
2.0 Effectiveness. This Agreement shall not be effective unless and until the
Credit Agreement is effective and in full force in accordance with its terms.
3.0 Definitions. Terms not otherwise expressly defined in this Agreement, shall
have the meaning and intent set forth in the Credit Agreement.
4.0 Amount of DIF Reimbursement. Subject to the terms, conditions, and
limitations set forth in this Agreement, the Parties hereby agree that DEVELOPER
is entitled to receive the dollar amount by which the Actual DIF Credit exceeds the
dollar amount of the DIF Obligation as determined pursuant to the Credit
Agreement, section 3.27.150 of the San Bernardino Municipal Code, and CITY
policies related to DIF credits and reimbursements ("DIF Reimbursement"). The
DIF Reimbursement shall be subject to verification by CITY and DEVELOPER
shall provide any and all documentation reasonably necessary for CITY to verify the
amount of the DIF Reimbursement. The DIF Reimbursement shall be in an
amount not exceeding [INSERT DOLLAR AMOUNT] ($) ("DIF Reimbursement
Amount"). In no event shall the dollar amount of the DIF Reimbursement exceed
the difference between the dollar amount of all credit applied to offset the DIF
Obligation pursuant to Sections 15.2, 15.3, and 15.4 of the Credit Agreement, and
one hundred (100%) of the construction costs of the DIF Improvement identified in
the DIF Study in effect at the time of the issuance of a building permit for the
Project.
5.1 Payment of DIF Reimbursement; Funding Contingency. The payment of the
DIF Reimbursement Amount shall be subject to the following conditions:
5.2 DEVELOPER shall have no right to receive payment of the DIF
Reimbursement unless and until (i) the DIF Improvements are
completed and accepted by CITY in accordance with the Credit
Agreement, and (ii) CITY has funds available and appropriated for
payment of the DIF Reimbursement Amount.
5.3 DEVELOPER shall not be entitled to any interest or other cost
adjustment for any delay between the time when the dollar amount of
the DIF Reimbursement is determined and the time when payment of
the DIF Reimbursement is made to DEVELOPER by CITY.
The DIF Reimbursement shall be due and payable within ten (10) days following (a)
execution of this Agreement and (b) satisfaction of the conditions in Section 5.2.
6.0 Affirmation of Credit Agreement. CITY and DEVELOPER represent and
warrant to each other that there have been no written or oral modifications or
amendments of the Credit Agreement, except by this Agreement. CITY and
EXHIBIT D-2
R896-000 -- 3069579.3
DEVELOPER ratify and reaffirm each and every one of their respective rights and
obligations arising under the Credit Agreement. CITY and DEVELOPER represent
and warrant that the Credit Agreement is currently an effective, valid, and binding
obligation.
7.0 Incorporation Into Credit Agreement. Upon execution of this Agreement, an
executed original of this Agreement shall be attached as Exhibit "D" to the Credit
Agreement and shall be incorporated therein as a material part of the Credit
Agreement as though fully set forth therein.
8.0 Terms of Credit Agreement Controlling. Each Party hereby affirms that all
provisions of the Credit Agreement are in full force and effect and shall govern the
actions of the Parties under this Agreement as though fully set forth herein and
made specifically applicable hereto, including without limitation, the following
sections of the Credit Agreement: Sections 10.0 through 10.3, Section 12.0, Sections
13.0 through 13.7, and Sections 14.0 through 14.5.
[Signature Page Follows]
EXHIBIT D-3
R896-000 -- 30695793
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
CITY OF SAN BERNARDINO DEVELOPER
Andrea M. Miller, City Manager
Approved as to Legal Form:
Gary D. Saenz, City Attorney
LON
ATTEST
Georgeann Hanna, CMC, City Clerk:
Ra
By:
Its:
EXHIBIT D-4
R996-000 -- 3069579.3