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HomeMy WebLinkAboutMC-233 " ORDINANCE NO. MC-233 ORDINANCE OF THE CITY OF SAN BERNARDINO SETTING FORTH A DEVELOPMENT AGREEMENT WITH TRADELANDS, INC., A CALIFORNIA CORPO- RATION, FOR DEVELOPMENT OF SURFACE MINING OPERATIONS. 5 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERN- ARDINO DO ORDAIN AS FOLLmlS: 6 7 SECTION 1. Approval and Execution of Development 8 Ag reement. 9 Pursuant to the terms and conditions of Sections 65864 10 11 et seq. of the California Government Code and in the exercise of powers granted by the Charter of the City of San Bernardino and 12 the Constitution of the State of California, that certain document 13 entitled Development Agreement which is entered into by the City 14 of San Bernardino and TRADELANDS, INC., a California corporation, 15 a copy of which is attached and incorporated herein by this 16 reference, is approved, and the Mayor of the City of San Bernardino 17 is authorized to execute and deliver this Development Agreement on 18 behalf of the City. 19 SECTION 2. Effective Date of Development Agreement. 20 The effective date of the Development Agreement shall 21 be deemed to be the date of publication of this Ordinance by the 22 City Clerk in accordance with Article III, Section 33 of the 23 Charter of the City of San Bernardino. 24 SECTION 3. The City Clerk is directed within ten (10) 25 days after the effective date of the Development Agreement set 26 forth in Section 2 above to record the Development Agreement and 27 Resolution No. 82-346, in the office of the County Recorder. 28 III MC-233 , ' . . . ~ .I. . , 1 The City Clerk is further directed to forward a copy of 2 all notices which are given or received by the City which relate 3 to the Entire Property of Tradelands, Inc. or any portion thereof 4 or any development thereon in accordance with paragraph 13 of this 5 Development Agreement. 6 I HEREBY CERTIFY that the foregoing ordinance was duly 7 adopted by the Mayor and Common Council of the City of San 8 Bernardino at a regular meeting thereof, held on 9 the 20th day of December , 1982, by the following 10 vote, to wit: 11 12 13 14 15 16 17 18 day of 19 AYES: Council Members Castaneda, Reilly, Hernandez, Marks, Quiel, Strickler NAYS: None ABSENT: Council Member Hobbs ~//..M/ ~~N/ Ci ty/Clerk The foregoing dCNttJ ordinance is hereby approved this =?/~ , 1982. Bernardino 20 Approved as to form: 21 22 23 24 ~ ~.A'r'~f City torney 25 26 27 28 -2- tw: 11/29/82 #2130 A2l-22 MC.:.a33 \'. RECORDING REQUESTED BY AND WHEN RECORDED DELIVER TO: Tradelands, Inc. c/o Allen, Matkins, Leek, Gamble & Mallory 515 South Figueroa, 8th Floor Los Angeles, California 90071 Attn: O'Malley M. Miller, Esq. DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into by the CITY OF SAN BERNARDINO, a municipal corpora- tion ("City"), and TRADELA~~fr INC., ~California corporation ("Tradelands"), as of the ~ day of ueL.eKther , 1982. R E C I TAL S: A. Tradelands is the owner of that certain real property ("Entire Property"), a portion of which is located in the unincorporated area of the County of San Bernardino ("County") and portions of which are also located in the City. The Entire Property is more particularly shown on that map which is on file in the office of the City Clerk as part of Resolution No. 82-346 and is incorporated herein by this reference. The legal descrip- tion for the Entire Property is on file in the office of the City Clerk as part of Resolution No. 82-346 and is incorporated herein by this reference. . B. The City and Tradelands entered into that certain Memorandum of Understanding ("Memorandum") dated as of July 19, 1982, and adopted by the City As Resolution No. 82-346, dated August 16, 1982, for the purpose of expressing their agreements, understandings and intentions with respect to the Entire Property, a copy of which resolution is on file in the office of the City Clerk and is incorporated herein by this reference. C. Prior to the execution of the Memorandum, the City sought to annex, pursuant to LAFC 2030A of the Local Agency Formation Commission of the County of San Bernardino ("LAFCO"), that portion of the Entire Property which is identified as the MC~233 " . . "Annexation Property" on the map referred to in paragraph A above and the correct legal description of which is on file in the office of the City Clerk as part of Resolution No. 82-346 and incorporated herein by this reference. That portion of the Entire Property which is not contained within the Annexation Property shall hereinafter be referred to as the "Adjacent Property". D. The City has stated its desire to annex the Adjacent Property. The annexation of the Annexation Property and the proposed annexation of the Adjacent Property are desired by the City in order for the City to ensure comprehensive planning, maximum efficient utilization of resources, orderly reclamation and redevelopment; to increase industrial capacity; and to broaden the tax base from which the City's services and activities may be funded. E. With the cooperation of Tradelands, the City adopted Resolution No. 82-316 on August 2, 1982, annexing the Annexation Property which was approved for annexation by LAFCO Resolution No. 1765, dated August 13, 1981. F. Subsequent to the execution of the Memorandum and with the cooperation of Tradelands, LAFCO adopted Resolution No. 1788, authorizing the City's request to expand the City's "Sphere of Influence" to include the Adjacent Property, so that the City's Sphere of Influence now encompasses the Entire Property. G. The City understands and acknowledges, and has already acknowledged in the Memorandum, that Tradelands presently intends to initially utilize almost all of the Entire Property, together with any real property adjacent thereto which Tradelands may from time to time acquire or lease, for the surface mining of sand, rock and gravel, the processing of that aggregate, the operating of concrete casting yards, the operation of plants for the production of ready-mix concrete and asphalt paving and related uses (collectively "Uses"). The Uses are also generally described in that certain memorandum from Mr. C. Ray Bass, dated December 9, 1981, a copy of which is on file in the office of the City Clerk as part of Resolution No. 82-346 and incorporated herein by this reference. The presently proposed geographical configuration of the Uses, which may be subject to change, are shown in general on the map which is on file in the office of the City Clerk as part of Resolution 82-346 and incorporated herein by this reference. H. The parties agree that in the event that the proposed geographical configuration of the Uses is changed, or if the area of the Entire Property is increased by the acquisi- tion by Tradelands of additional property, which increase in area does not exceed twenty-five percent (25%) of the current gross acreage of the Entire Property, such event(s) shall not affect the Uses permitted hereby. -2- MC-233 I. California Government Code Sections 65864 et ~ ("Statute") authorizes the City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, and the parties hereto desire to enter into such an agreement. J. The Mayor and Common Council, in exercise of powers granted by the Charter of the City of San Bernardino and the Constitution of the State of California, have enacted procedures by Resolution No. 82-301, dated July 19, 1982, ("City Enacting Resolution") consistent with the Statute authorizing the City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, and the parties hereto desire to enter into such an agreement. K. The parties acknowledge and agree that they have duly complied with all requirements regarding their entry into this Agreement, including compliance with Section 2 of the City Enacting Resolution, and have performed each and every other prior act necessary to enter into this Agreement. L. The Planning Director of the City has recommended that the City enter into a development agreement with Tradelands in the form and substance of this Agreement, relative to the Entire Property. M. It is the intent of the parties that all acts referred to in this Agreement shall be accomplished in such a way as to fully comply with California Environmental Quality Act ("CEQA"), the California Surface Mining and Reclamation Act ("Surface Mining Act"), the Statute, the City Enacting Res- olution, the San Bernardino Municipal Code ("Code") and the Charter of the City. N. This Agreement is made and entered into in con- sideration of the mutual covenants and in reliance upon the various representations and warranties contained herein. The parties acknowledge that, in reliance on the agreements, represen- tations and warranties contained herein, Tradelands will take certain actions, including making substantial investments, relative to the Entire Property and the development thereof. NOW, THEREFORE, the parties hereto further agree as follows: 1. The City hereby finds that the terms of this Agreement and the Uses to be developed within the City and its sphere of influence are consistent with the general plan, appli- cable specific plans and zoning ordinances of the City and the County which are applicable to the Entire Property. Further the -3- MC-233 .., City finds that the proposed uses are permitted by M-2 zoning, as that term is defined in the Code, which the Annexation Property has been zoned and to which the Adjacent Property shall be prezoned. The City agrees and acknowledges that it shall not amend, modify or change the applicability of the foregoing, during the term of this Agreement, in such manner as to be inconsistent with the Uses and Tradelands' development plan contemplated herein. 2. The City agrees that this Agreement, affecting the Entire Property, is of the same nature, scope and type of develop- ment agreement as is contemplated by the Statute and the City Enacting Resolution. 3. The City agrees that, as permitted by the Surface Mining Act, the County shall act, until such time as the Entire Property may be annexed into the City, as the "Lead Agency" for the purpose of evaluating and approving the Uses subject to the Surface Mining Act and establishing the conditions and issuing the permits pursuant to which such Uses will be conducted. Tradelands will devise, for approval by the County, a Surface Mining and Reclamation Plan or plans which shall satisfy all applicable governmental requirements and which will be consistent with the uses which Tradelands intends to develop. The parties agree that the City, in the event it becomes the Lead Agency, will recognize as valid and binding, and shall not materially modify, any finding, license, entitlement or permit issued by the County while it was acting as the Lead Agency. A copy of such license, entitlement or permit shall be filed in the office of the City Clerk within thirty (30) days of issuance unless waived by the City Planning Director, provided, however, that the failure to do so shall not invalidate any such license, entitlement or permit issued. 4. By Notice of Exemption ("Notice"), dated June 22, 1982, the Mayor and City Council reviewed the Memorandum and determined that the Memorandum and the designation of the County as "Lead Agency" (as defined therein) are categorically exempt from the provisions of CEQA, pursuant to 14 Cal. Admin. Code Sections 15107 and 15120 (categorial exemptions 7 and 20). The City and Tradelands acknowledge and agree that the Uses and the development contemplated in this Agreement are not materially different from those contemplated in the Memorandum and extend no additional entitlement. 5. The parties acknowledge and agree that the density or intensity of the Uses set forth herein are consistent with the City's general plan, the applicable specific plans, if any, and the zoning ordinance, including the requirements of M-2 zoning, as set forth in the Code. The permitted maximum height and size of the buildings and improvements to be constructed for carrying out the Uses shall be sufficient to permit Tradelands to effectuate -4- 1.~c-n3. its development plan and shall be consistent with the Uses. In any event, the maximum height and size of the buildings shall be sufficient to permit buildings and improvements of like kind and nature as are currently in existence with respect to property whereon acts of a similar character as the Uses are performed. 6. The City finds that the Uses proposed are in accordance with the City's resource and management policies and that these Uses are more important to the region than alternative land uses. Further, the City recognizes that the protection of significant mineral deposits, such as are located on the Entire Property, from incompatible premature development is a matter of statewide concern. Based upon the recommendation of its Planning Director, the City concludes that the Entire Property constitutes an "area of regional significance" as that term is defined in Section 2726 of the California Public Resources Code, and hereby recommends that the Entire Property be so designated. Tradelands agrees to provide the City with all copies of maps, reports or other information which the City is required to furnish to any third party to document the determination that the Entire Property be designated an area of regional significance. 7. Tradelands intends to take all steps which are necessary andlor helpful in obtaining all permits or other govern- mental entitlements which may be required as a condition to establishing the Uses and to development of the Entire Property. The City agrees, for the term of this Agreement, not to impose any additional or more restrictive requirements on Tradelands or the Entire Property than would exist as of the execution hereof, and which would affect the obtaining of such permits. Nothing herein shall excuse nonpayment of any ordinary and usual costs, fees or charges in accordance with the schedule in effect at the time such cost, fee or charge becomes due. 8. Any permit issued by the City for any of the Uses to be conducted shall be compatible with any permit then in effect, issued by the County (or, in the case of the Annexation Property, the City, as well) and shall be valid and Tradelands' rights thereunder shall be vested for at least eight (8) years without the actual commencement of that particular activity. Notwithstanding the foregoing, the issuing by the City of condi- tional use or other permits relating to the surface mining opera- tions on the Entire Property shall be supplementary to the condi- tions imposed by the County in connection with the issuance of the surface mining permit and approval of the reclamation plan, and shall not be incompatible therewith. Any conditions imposed by the City shall not regulate nor be incompatible with activities which are otherwise regulated by the permit and reclamation plan which are issued and approved by the County. III -5- ~~33 9. an Agreement ment Agency) Agreement. The City and Tradelands shall concurrently execute with the Community Development Commission (Redevelop- of the City which will be consistent with this 10. The City agrees to cooperate with Tradelands, at no cost to the City, in effecting compliance with CEQA and any other statutes as required and in obtaining all necessary andlor helpful permits or other governmental entitlements which Tradelands may deem necessary andlor helpful in connection with the Uses. Such cooperation and assistance shall include, but not be limited to, holding all necessary hearings, giving all necessary notices, making recommendations to, consulting with, and appearing before concerned governmental agencies or entities. Tradelands will reimburse City for any costs and expenses incurred for services furnished which are not incident to ordinary City procedures or included in adopted fee schedules. 11. Tradelands agrees that it shall diligently perform such acts and effect such improvements and programs with respect to flood control in the river channel on the western portion of the Entire Property as shall be required, from time to time, by the United States Army Corps of Engineers or other governmental agency or authority to which responsibility for such matters has been delegated. 12. Tradelands agrees that, provided this Agreement has been enacted as an ordinance and the time for referendum has expired, in order to continue to assist the City in its stated goals with regard to annexation of the Annexation Property and the Adjacent Property, it will not oppose the annexation of the Adjacent Property by the City and will waive its rights under Section 860 of the California Code of Civil Procedure to challenge Resolution No. 1765. 13. The City shall promptly forward to Tradelands, at the addresses specified below, copies of all notices which it gives or which it receives from any governmental agency or party interested in a governmental proceeding which relate to the Entire Property or any portion thereof or any development thereon. In addition, in the event any understanding or intention of the City which is described herein ceases to be accurate, the City shall give prompt written notice of that fact to Tradelands. All notices or other communications required or permitted hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, at the following addresses: III III -6- MC-233 To City: City of San Bernardino 300 North "D" Street Room 331-E, City Hall San Bernardino, CA 92418 Attn: Frank A. Schuma With a Copy To: City Attorney City of San Bernardino 300 North "D" Street Room 668 San Bernardino, CA 92418 Attn: Ralph H. Prince, Esq. To Tradelands: Tradelands, Inc. 800 Wilshire Boulevard Suite 1300 Los Angeles, CA 90017 Attn: J. Randolph Elliott, Esq. With a Copy To: Allen, Matkins, Leek, Gamble & Mallory 515 So. Figueroa St., 8th Floor Los Angeles, CA 90071 Attn: O'Malley M. Miller, Esq. Unless sooner received, notice shall be deemed given seventy- two (72) hours following deposit in the United States mail. Notice of change of address shall be given by written notice in the manner specified in this paragraph. 14. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. The parties understand and agree that this Agreement is not intended to constitute, nor shall it be construed to consti- tute, an impermissible attempt to contract away the legislative and governmental functions of the City, and, in particular, the City's police powers. In this regard, the parties understand and agree that this Agreement shall not be deemed to constitute the surrender or abnegation of the City's governmental powers over the Annexation Property or the Adjacent Property. Notwithstanding the foregoing, in the event any provision of this Agreement is found to be unenforceable, void or voidable, the parties hereto agree that the remaining provisions shall remain in full force and effect. In the event that all or any portion of this Agreement is found to be unenforceable, this Agreement (or that portion which is found to be unenforceable) shall be deemed to be a statement of intention by the parties and the parties further agree that in such event they shall take all steps necessary to comply with such public hearing and/or notice requirements as may be necessary in order to render this Agreement (or portion hereof) valid. Notwith- standing anything to the contrary stated herein, in the event that -7- MC-233 any provision of this Agreement is found to be unenforceable, void or voidable, Tradelands may, at its sole and absolute discretion terminate this Agreement, providing written notice thereof to the City. In the event of such termination, Tradelands may seek to detach the Entire Property (or that portion which has been annexed) from the City, and the City agrees that it shall not oppose such detachment. 15. The term of this Agreement shall commence on the effective date of the ordinance approving it, and shall continue for a period of twenty (20) years from the date thereof, subject to the annual review described in Paragraphs 18 and 19 hereof and the termination provisions of Paragraph 20 hereof. The termination of this Agreement shall not curtail any rights otherwise vested in Tradelands under any permit, license or entitlement already issued. 16. By the execution hereof, the City confirms and acknowledges that it has complied in full with the requirements for public hearing, notice of intention to consider adoption and consideration of the recommendations of other advisory bodies, as required by Section 65867 of the Statute and Sections 6 and 7 of the City Enacting Resolution. Further, by the execution hereof, the City confirms and acknowledges that this Agreement has been approved by ordinance, as required by Section 65867.5 of the Statute and Section 7 of the City Enacting Resolution. 17. In order to comply with Section 65868.5 of the Statute and Section 8 of the City Enacting Resolution, the parties do hereby direct the City Clerk to record a copy of this Agreement and Resolution No. 82-346 with the County Recorder within ten (10) days after the effective date of this Agreement as set forth in the ordinance approving this Agreement. Upon termination of this Agreement for any reason, the City agrees to execute in recordable form a notice of termination of this Agreement in a form satis- factory to a title insurance company. 18. It is understood and agreed by Tradelands and the City that the City will review the compliance by Tradelands with the terms of this Agreement and discuss development plans on an annual basis in the month during which the annual anniversary of the execution hereof occurs, throughout the term of this Agreement. The annual meetings of the parties hereto shall be held in the office of the City Planning Director at 9:00 A.M. on the fifteenth (15th) day of each designated month (or, in the event such date falls on a weekend or holiday, the next available business day), or at such other places or times which are mutually agreed upon by the parties. The City and Tradelands shall each have no more than three (3) representatives at each such meeting. The Mayor shall designate such representatives on behalf of the City and the President of Tradelands shall designate its representatives. No -8- '. KC-233 other persons or entities shall be entitled to representation at such meetings unless otherwise agreed by mutual consent of the parties hereto. All actions taken at such meeting shall require the mutual consent of the parties hereto. 19. Notwithstanding the provisions of Paragraph 18 hereof, pursuant to the provisions of Section 65865.1 of the Statute, the parties hereto shall review, at each regularly scheduled annual meeting, the good faith compliance with the terms of this Agreement by Tradelands, with respect to the Uses. If as a result of such review City determines, on the basis of the preponderance of the evidence, that Tradelands or its successor(s) in interest to the Entire Property has not complied in good faith with the terms and conditions hereof, the City may terminate this Agreement, subject to the provisions of Section 20 hereof. 20. In the event the City finds, following one of the annual reviews described in Paragraphs 17 and 18 hereof and on the basis of the preponderance of the evidence, that Tradelands has not complied with the terms of this Agreement, the City shall provide written notice thereof ("Notice of Noncompliance"), specifying in reasonable detail the specific reasons for such finding. After the City delivers the Notice of Noncompliance, Tradelands shall have the right to cure such noncompliance within One Hundred Eighty (180) days ("Cure Period"). In the event such noncompliance is not reasonably susceptible of being cured within the Cure Period and provided Tradelands exercises its best efforts to effect a cure, then the Cure Period shall be extended for such period of time as may be necessary to cure the non- compliance. In the event that Tradelands does not elect to cure the noncompliance after a Notice of Noncompliance is delivered by the City, or if, after the Cure Period, Tradelands ceases to use its best efforts to pursue such cure, the City may terminate this Agreement upon ten (10) days' prior written notice to Trade- lands, and a Notice of Intention to terminate shall be given by the City in the manner provided in Section 65867 of the Statute. 21. Except for matters left herein to the future mutual agreement of the parties, this Agreement may be amended or cancelled, in whole or in part, by mutual consent, in writing, of the parties or their successors in interest, confirmed by ordinance of the Mayor and Common Council of the City, at a public hearing for which notice has been given as required by law for the specific actions being taken, including, without limitation, Section 65867 of the Statute. 22. Nothing herein shall prevent Tradelands from conveying all or a part of its interest in the Entire Property which is the subject of this Agreement, subject to the covenants described herein. Development rights under this Agreement shall not be assigned or conveyed by operation of law, nor except: (1) -9- . KC-2J3 by an amendment as doscribed in paragraph 21 hereof or (2) to any which owns or acquires a controlling interest in Tradelands or any entity in which Tradelands is a partner or owns an interest. 23. The headings and numbering of paragLaphs herein are used for convenience only and shall not affect the meaning or interpretation of the contents hereof. 24. The laws of the State of California shall govern the interpretation and enforcement hereof, and the conduct of the parties hereunder. 25. For purposes hereof and for other purposes, the date of execution of this Agreement is hereby deemed by the parties to be the date upon which the ).Iayor and Common Council of the City adopt the ordinance to approve entering into this Agreement. 26. Time is expressly declared to be of the essence in this Agreement and all of the terms, covenants, agreements, obligations and conditions expressed herein. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. ATTEST: CITY OF SAN a municipal hff/J;?/~1~ / TRADELANDS, INC., a California corporation By_~\IJ~ - M. A. Mo phy Its President Approved and agreed: APPROVED AS TO FORM: COMMUNITY DEVELOPMENT OF THE CITY OF SAN ISSION INO ~~ ~.,,/? City A torney / tw: 11/29/82 #2130 Al-10 -10-