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Home My WebLink AboutR31-Economic Development ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ORIGINAL DATE: August 3, 2005 SUBJECT: 2005 DISPOSITION AND DEVELOPMENT AGREEMENT WITH WATSON-WESTRIDGE, LLC (143,72-ACRE RESIDENTIAL DEVELOPMENT LOCATED NORTH OF FOOTHILL DRIVE AND EAST OF STERLING AVENUE) FROM: Maggie Pacheco Deputy Director ---------------------------------------------------------------------------------------------------------------------------------------.-----------------.---------------------------------------------------------------------.---. Synopsis of Previous Commission/Council/Committee Action(s): On July 19, 2005, Redevelopment Committee Members Estrada and McGinnis unanimously voted to recommend that the Community Development Commission consider this action for approval. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): Open/Close Public Hearing A: (Mavor and Common Council) Resolution of the Mayor and Common Council of the City of San Bernardino approving that certain Purchase and Sale Agreement by and between the City of San Bernardino ("City") and the Redevelopment Agency of the City of San Bernardino ("Agency") relating to the sale of City Property located north of Foothill Drive, east of Sterling Avenue (135.6 acres AP# 0155-361-25) in the City of San Bernardino B: Resolution of the Mayor and Common Council of the City of San Bernardino approving the 2005 Disposition and Development Agreement ("DDA") by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and Watson-Westridge, LLC ("Developer") (City and Agency Property located north of Foothill Drive, east of Sterling Avenue (AP# 0155-361-25,0155-381-11 & 45 - 143.72 acres in the City of San Bernardino) ("Property") and making certain findings thereto related to the development of the Property Recommended Motions Continued to Next Pal!e..... ------------------------------------.---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------. Project Area(s) N/A Ward(s): (909) 663-1044 4 Contact Person(s): Gary Van OsdellMaggie Pacheco Phone: Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letters See Fiscal FUNDING REQUIREMENTS Amount: $ Impact Source: Land Sale Proceeds Budget Authority: SIGNATURE: ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------. comm"!.."," Not." f~f~qn - ~. J C"'t;ql~ - . C OS - . 5- -". ~ (I/J()Pj-- (,., ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:\Agendas\Comm Dev Commission\COC 2005\05-08-15 Watson-Westridge SR.doc COMMISSION MEETING AGENDA Meeting Date: 08/1512005 Agenda Item Number: R 3/ Economic Development Agency Staff Report Watson-Westridge, LLC - 2005 DDA August 15,2005 Recommended Motion(s): Open/Close Public Hearing C: (Community Development Commission) Resolution of the Community Development Commission of the City of San Bernardino approving that certain Purchase and Sale Agreement by and between the City of San Bernardino ("City") and the Redevelopment Agency of the City of San Bernardino ("Agency") relating to the sale of City Property located north of Foothill Drive, east of Sterling Avenue (135.6 Acres: AP# 0155-361-25) in the City of San Bernardino D: Resolution of the Community Development Commission of the City of San Bernardino approving the 2005 Disposition and Development Agreement ("DDA") by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and Watson-Westridge, LLC ("Developer") and authorizing the Agency Executive Director to execute said DDA relating to the sale and development of certain City and Agency Property located north of Foothill Drive, cast of Sterling Avenue (AP# 0155-361-25, 0155-381-11 & 45 -143.72 acres in the City of San Bernardino) ("Property") and making certain findings thereto related to the development of the Property P \Agtnd&\Corrun Dev Commission\('DC 2005\05-08-15 Walson-Weslridge SR doc COMMISSION MEETING AGENDA Meeting Date: 08/15/2005 Agenda Item Number: ECONOMIC DEVELOPMENT AGENCY ST AFF REPORT 2005 DISPOSITION AND DEVELOPMENT AGREEMENT WITH WATSON-WESTRIDGE, LLC (144.52-ACRE RESIDENTIAL DEVELOPMENT LOCATED NORTH OF FOOTHILL DRIVE AND EAST OF STERLING AVENUE) BACKGROUND: On January 6, 2003, the Mayor and Common Council ("Council") and Community Development Commission ("Commission") authorized the Agency and Water Department Staff to solicit proposals for the sale and development of Agency and City property located north of Foothill Drive and east of Sterling Avenue. The City's property (APN 0155-361-25) consists of 135.6 acres and the Agency's property (APN 0155-381-11 and 45) consists of 8.12 acres for a total of 143.72 acres (the "Site"). In February 2003, the Site was surveyed and appraised. The appraised value of the City's property was $955,000 and the appraised value of the Agency's property was $203,000 (total value, $1,158,000). This appraisal was based on the value of the raw land without considering the fact that the Site is located within the Hillside Management Overlay and thus, the entire Site is not useable. On May 8, 2003, Requests for Proposals (RFP) were mailed to 30 developers and interested parties and on July 3, 2003, the Agency received two responsive proposals. On July 14, 2003, the two developers made presentations and were interviewed by a panel comprised of Agency, City Staff, and Council Member Derry. The panel agreed that J.R. Watson & Associates Development Co. (Watson- Westridge, LLC) ("Developer") had the most favorable proposal that met or exceeded the RFP parameters. On July 21, 2003, the Commission approved a Project Study and Exclusive Right to Negotiate Agreement ("2003 Study Agreement") with the Developer to study the development of approximately 107 single-family homes and to pay the Agency $1.2 million for the Site. The Developer has been in business for 25 years, has developed over 40 major residential and commercial projects, and is presently constructing the University Village project under a DDA with the Agency. Due to lapse in time, an updated appraisal was completed in May 2005 by James Smothers and Associates. The updated appraised value for the Site is $1,144,000 ($368,000 for Agency property and $776,000 for the City property). The decrease in the value is primarily related to the fact that about 55 acres of the Water Department portion of the 143.72 acres are developable for homes and streets. Since the 2003 Study Agreement was approved, the Developer has been diligently working on the preparation of the tentative track map (TTM), and numerous studies to determine the development feasibility and is now ready to move forward with the filing of the TTM and enter into a Development and Disposition Agreement with the Agency in accordance with the terms of the 2003 Study Agreement. CURRENT ISSUE: Consequently, below are the business points contemplated in the proposed Disposition and Development Agreement (DDA) (Attachment I) between the Agency and Developer: -------------------------------------------------------------------------.-- ----------------------- ---------------------------- -------------------------------------------- P\Agendas\Comm Dev CommissioIl\CD(' 2005\05-08-15 Walson-Weslndge SR doc COMMISSION MEETING AGENDA Meeting Date: 08/15/2005 Agenda Item Number: Economic Development Agency Staff Report W atson- Westridge, LLC - Disposition and Development Agreement Page 2 · The City of San Bernardino, Water Department will sell the 135.6-acre site to the Agency at the appraised value of $776,000 under a Purchase and Sale Agreement (Attachment II). · The Agency will sell the entire Site (includes City Water site of 135.6 acres and Agency site of 8.12 acres) to the Developer for the agreed purchase price of$1.2 million under the DDA. · Although the Developer had initially agreed to build 107 single-family homes, due to environmental and geological factors revealed during the study period, the Developer may be able to develop up to 77 single-family homes and appropriate on and off site improvements on an approximately 55-acre grading footprint. The homes will be built on a minimum 10,800 square feet lot with a minimum 2,500 square feet of living space, 3 and up to 7 bedrooms, up to 4 car garages, I and 2 story homes with multiple floor plans and elevations. In addition, the balance of the acreage will be developed with walking and hiking trails, monumental entry- ways, 2 gazebos, a passive park, and open space. The development will be a private and gated community and the common landscape and improvements would be maintained through the Homeowner's Association (HOA). · Developer has agreed to match City funds of up to $200,000 to improve and enha)1ce landscaping and public improvements on Del Rosa Avenue, a major thoroughfare into the proposed development Site. It is anticipated that the City has budgeted or will budget an equal sum in the City's Capital Improvement Program budget to assist with the accomplishment of the enhancement improvements, which are vital to the success of the proposed development. . The Agency will be required in the DDA to pay not more than of $56,000 for the acquisition of property from the County Flood Control District for a roadway access. This $56,000 figure represents the amount that will be paid by Watson, which is in excess of the appraised value of the Site. The Agency property and the Water Department property are not contiguous but are separated by property owned by the County Flood Control District and used for a flood control basin and the storage of excavated materials from the basin. It is anticipated that 2 lots in the Agency property will be exchanged for additional land or an easement on land of the County Flood Control District that is adjacent to the Water Department property to allow for the acquisition of the portion of the County property to thus connect the Agency property with the Water Department property by an on-site street or a street easement that will be owned and maintained by the HOA. The appraisal assumed the "as is" value of the two parcels consisting of the Agency property and the Water Department property whereas the intended use requires that these parcels be connected with an access road. To the extent that the $56,000 figure is not needed, then the Agency will retain the excess amount; if this amount is insufficient to acquire all the County property as needed, then the Developer must pay the additional amounts or cancel the DDA and the escrow for the purchase of the Site. · The Developer has committed to donate $50,000 to the Literacy Program managed by California State University at San Bernardino. P'AgendaslComm Dev Commission\CDC 2005\05-08-15 Walsol1-WesITidge SRdoc COMMISSION MEETING AGENDA Meeting nate: 08/15/2005 Agenda Item Number: Economic Development Agency Staff Report W atson- Westridge, LLC - Disposition and Development Agreement Page 3 Assuming the Agency is able to obtain the necessary easement for the access road linking the City and Agency property, and the Developer has obtained approval of the TTM, escrow may be able to close within 110 days from the approval date of the DDA, unless mutually extended by both parties. Development of the property is anticipated to occur over a period of 3 years, depending on market conditions. Prior to the proposed sale of the Site to the Developer, the Commission and Council are required to conduct a public hearing in accordance with Health and Safety Code Section 33433 (Attachment III). The Summary Report attached hereto identifies the salient points of the disposition of the Site pursuant to the DDA, the cost of the sale of the Site, the estimated value of the interests conveyed, determined at the highest and best use permitted under the DDA. Moreover, as required under the Health and Safety Code Section 33433, a public notice of this public hearing was published in the Sun Newspaper on Julyl8 and 25, 2005. ENVIRONMENTAL IMPACT: The Initial Study (IS) (Attachment IV) was prepared for the proposed project and distributed for comment to affected agencies in accordance with CEQA, and said IS determined that although the proposed project could have a significant effect on the environment, there will not be significant effects because revisions have been made to the project description to mitigate those impacts; thus it is proposed that a Mitigated Negative Declaration be prepared for the project. Based on the circulation of the IS, on July 25, 2005, the Response to Comments for the IS (Attachment V) was prepared by Environmental Consultant to the Agency and incorporated into the IS. Moreover, the Consultant has prepared the Mitigation Monitoring and Reporting Program (Monitoring Program) (Attachment VI) which outlines the responsibilities and duties of the Developer with regard to the monitoring and reporting of those measures or conditions imposed on the project to mitigate or avoid adverse effects on the environment in accordance with CEQA Section 21081.6. Because the majority of the mitigation measures deal with air quality, grading, geology, and soils, the City's Development Service Department will review, inspect and monitor the Developer's compliance with said Monitoring Pro gram. FISCAL IMPACT: As described above under current issue. RECOMMENDATION: That the Mayor and Common Council and the Community Development Commission adopt the attached Resolutions. /7) -yn !t~ Maggie Pacheco, Deputy Director P\AgendaslConun Dev Commission\CDC 2005\05-08.15 Watson-Weslridge SR doc COMMISSION MEETING AGENDA Meeting Date: 08/1512005 Agenda Item Number: RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO ("CITY") AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") RELATING TO THE SALE OF CITY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING AVENUE (135.6 ACRES AP# 0155-361-25) IN THE CITY OF SAN BERNARDINO 3 4 5 6 7 WHEREAS, the City of San Bernardino, California (the "City"), IS a municipal 8 corporation and charter city, duly organized and existing pursuant to the provisions of the 9 constitution of the State of California; and 10 WHEREAS, the City is the current owner of that certain real property consisting of 11 approximately 135.6 acres (APN: 0155-361-25) located north of Foothill Drive, east of Sterling Avenue in the City of San Bernardino (the "Property"); and 12 13 WHEREAS, the City has determined that the Property is no longer necessary for the City's use; and 14 15 WHEREAS, the City desires to sell the Property to the Redevelopment Agency of the City of San Bernardino (the "Agency") pursuant to the provisions of the Charter of the City and 16 17 the provisions of the Municipal Code, including without limitation Section 2.65.050; and 18 WHEREAS, the Agency is also the current owner of that certain real property consisting of approximately 8.12 acres (APN: 0155-381-11 and 45) located north of Foothill Drive, east of 19 20 Sterling Avenue in the City of San Bernardino, south of the City's Property, separated by property owned by the San Bernardino County Flood Control District; and 21 22 WHEREAS, an updated MAl appraisal of the Property has been completed by Smothers Appraisal (the "Appraisal") confirnling a fair market value of Seven Hundred Seventy Six Thousand Dollars ($776,000) for the City's Property and Three Hundred Sixty Eight Thousand Dollars ($368,000) for the Agency's property for a total fair market value of $1,144,000; and WHEREAS, the Agency is entering into a 2005 Disposition and Development 23 24 25 -1- P:\Ag,endu\.RnolutioDli\RtlOluliODliUllOSIOS-08-15 W.tlion-Wutridg,t Mer RUD A.do( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Agreement (the "DDA") with Watson-Westridge, LLC (the "Developer") pursuant to which the Agency will, simultaneously with its purchase of the Property from the City, sell the Property and the Agency's property to the Developer for a purchase price of One Million Two Hundred Thousand Dollars ($1,200,000) which is considered to be in excess of the fair market value of the City's Property and the Agency's property; and WHEREAS, the difference between the sales price of $1,200,000 and the appraised value of the two properties of $1,144,000 is $56,000 (the "Excess Price") which is being obligated by the Agency under the DDA for the potential acquisition of the required easement or land from the County of San Bernardino Flood Control District to connect the City Property and the Agency property, and if the Excess Price is not needed for said purchase, the Excess Price will be retained by the Agency to off-set its legal and administration expenses related to the Project; and WHEREAS, the DDA provides for the development of the Property and Ihe Agency property by the Developer as a residential neighborhood consisting of not more than 77 single family detached homes (the "Project"); and WHEREAS, the Agency is the "lead agency" for the Project, under the California Environmental Quality Act, California Public Resources Code Sections 21 000, et seq. ("CEQA"), in accordance with Public Resources Code Section 21067 and Title 14 California Code of Regulations Sections 15050 and 15051; and WHEREAS, the IS identified potentially significant effects on the environment In connection with the proposed Project; and WHEREAS, based on the potential significant affects on the environment and comments received from respective affected agencies, the Agency has prepared the "Response to Comments for the IS", dated July 25, 2005, and the Mitigation Monitoring and Reporting Program (the "Monitoring Program"), Attachments V and VI to the Staff Report, relative to the DDA between the Agency and the Developer and the proposed Project to avoid or mitigate the -2- r;\AI:~lId.u\Ro:.olulioll.\Rtlolution.\2005\05+0g..15 W.',on-We.lritl\:r MCC Ruo A.doc 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 potentially significant effects on the environment, and the Developer has agreed to implement the Monitoring Program for the Project; and WHEREAS, the Agency has prepared and the Mayor and Common Council will consider approval of the Mitigated Negative Declaration with respect to the Project in accordance with the provisions of CEQA and the CEQA Guidelines developed thereunder; and WHEREAS, a Purchase and Sale Agreement (the "Agreement") Attachment II to the Staff Report, pursuant to which the City will convey the Property to the Agency; and WHEREAS, it is appropriate for the Mayor and Common Council to take action with respect to the sale of the Property to the Agency and the subsequent disposition and development of the Property. NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: Section 1. The Mayor and Common Council hereby approve the Agreement and authorize and direct the Mayor to execute the Agreement on behalf of the City together with such technical and conforming changes as may be recommended by the General Manager of the Municipal Water Department and approved by the City Attorney. Section 2. Provided that the Agreement has been fully executed by the parties, the General Manager of the Municipal Water Department is hereby authorized and directed to take all actions set forth in the Agreement on behalf of the City to close the escrow transaction described therein. Section 3. The Mayor and Common Council hereby concur with the Agency that a Mitigated Negative Declaration and Notice of Determination shall be prepared and filed with the County Clerk for the reasons noted in the above Recitals. Section 4. This Resolution shall take effect upon its adoption and execution in the manner as required by the City Charter. /1/ -3- 1':\AconduIR..olutinn.\R..olutlonsIl005\05-08-15 War,on-Wnlril.l!:1' MCC Run A.doc 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO ("CITY") AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") RELATING TO THE SALE OF CITY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING AVENUE (135.6 ACRES AP# 0155-361-25) IN THE CITY OF SAN BERNARDINO 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a meeting thereof, held 8 on the day of 9 Council Members: Aves 10 ESTRADA 11 LONGVILLE MCGINNIS 12 DERRY 13 KELLEY 14 JOHNSON 15 Me CAMMACK 16 , 2005, by the following vote to wit: Abstain Absent Navs 17 Rachel G. Clark, City Clerk 18 19 day of ,2005. The foregoing resolution is hereby approved this 20 21 22 Judith Valles, Mayor City of San Bernardino 23 Approved as to form and Legal Content: 24 .1 /('. . 0 :'^'-'-'---. .'lity Attorney 25 By: -4- F:\Ar:endlU\Re5(JI\ltionl\~solullonf\20115\OS.Oll-15 W.uon-Westridr:e MCC Re.l.O A.dllc RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN OF SAN BERNARDINO APPROVING THE 2005 DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND WATSON-WESTRIDGE, LLC ("DEVELOPER") (CITY AND AGENCY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING AVENUE (AP# 0155-361- 25, 0155-381-11 & 45 - 143.72 ACRES IN THE CITY OF SAN BERNARDINO) ("PROPERTY") AND MAKING CERTAIN FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE PROPERTY 3 4 5 6 7 8 9 WHEREAS, the City of San Bernardino, California (the "City"), is a municipa 10 corporation and charter city, duly organized and existing pursuant to the provisions of th 11 constitution of the State of California; and 12 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") 13 is a public body, corporate and politic existing under the laws of the State of California, Healt and Safety Code 33101, and is charged with the mission of redeveloping blighted an 14 underutilized land, and the Agency desires to acquire certain land (the "Property") from the City 15 pursuant to Health and Safety Code Section 33396; and WHEREAS, the City has determined that the Property is no longer necessary for th 16 17 City's use; and 18 WHEREAS, the Property consists of approximately 135.6 acres (APN: 0155-361-25 located north of Foothill Drive, east of Sterling Avenue in the City of San Bernardino; and WHEREAS, the Agency is also the current owner of that certain real property consistin 19 20 21 of approximately 8.12 acres (APN: 0155-381-11 and 45) located north of Foothill Drive, east 0 Sterling Avenue, south of the City's Property, separated by the San Bernardino County Floo Control District (the "Agency Property") ( collectively referred to as the "Site"); and WHEREAS, an updated MAl appraisal of the Property and the Agency Property has bee completed by Smothers Appraisal (the "Appraisal"); and 22 23 24 25 -1- f':\Acendu\RelolutloRI\Resolulions\lOOS\OS.08-15 Wlllon-We.tridte MCC Re.o B.do( 2 3 4 5 6 7 8 9 10 11 12 ]3 14 15 16 17 ]8 19 20 2] 22 23 24 25 WHEREAS, said Appraisal has confirmed the fair market value of the Property and th Agency Property to be Seven Hundred Seventy Six Thousand Dollars ($776,000) for the City' Property and Three Hundred Sixty Eight Thousand Dollars ($368,000) for the Agency's Propert for a total fair market value of $1,144,000; and WHEREAS, the Agency is entering into a 2005 Disposition and Development Agreemen (the "DDA") with Watson-Westridge, LLC (the "Developer") pursuant to which the Agenc will, simultaneously with its purchase of the Property from the City, sell the Property and th Agency Property to the Developer for a purchase price of One Million Two Hundred Thousan Dollars ($1,200,000) which is considered to be in excess of the fair market value of the Site; and WHEREAS, the difference between the sales price ($1,200,000) and the curren appraised value ($1,144,000) for the Site is $56,000 (the "Excess Price") which is bein obligated by the Agency under the DDA for the potential acquisition of the required easement 0 land from the County of San Bernardino Control District to connect the City's Property and th Agency's Property and if the Excess Price is not needed for said purchase, the Excess Price wil be retained by the Agency to off-set its legal and administration expenses related to the Project' and WHEREAS, the DDA provides for the development of the Site by the Developer as residential neighborhood consisting of not more than 77 single family detached homes (th "Project"); and WHEREAS, the Agency has prepared and published a notice of joint public hearing i The San Bernardino County Sun Newspaper on July 18 and 25, 2005, regarding th consideration and approval of the DDA and also published a Notice of Intent to adopt Mitigated Negative Declaration related to the Project in accordance with Californi Environmental Quality Act ("CEQA"); and WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency ma transfer the Site to the Developer subject to the Mayor and Common Council and Communit Development Commission adopting a Resolution authorizing the Agency to transfer the Site i -2- P:\AgendnIRnoJufiom\Ruolulion.\200S\05-08-15 Wllson-Wulridge Mee Run B.doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 light of the findings set forth herein, pursuant to Health and Safety Code Section 33433; and WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safety Code Section 33433 that describes the salient points of the DDA and identifies the cost of the DDA to the Agency; and WHEREAS, the Agency is the "lead agency" for the Project, under the California Environmental Quality Act, California Public Resources Code Sections 21000, et seq. ("CEQA"), in accordance with Public Resources Code Section 21067 and Title 14 California Code of Regulations Sections I 5050 and 15051; and WHEREAS, the IS identified potentially significant effects on the environment connection with the proposed Project; and WHEREAS, based on the potential significant affects on the environment, and comment received from respective affected agencies, the Agency has prepared the "Response t Comments for the IS", dated July 25, 2005, and the Mitigation Monitoring and Reportin Program (the "Monitoring Program"), Attachments V and VI to the Staff Report relative to th DDA between the Agency and the Developer to mitigate the potentially significant affects on th environment, and the Developer has agreed to implement such mitigation measures pursuant t said Monitoring Program; and WHEREAS, the Agency has prepared the Mitigated Negative Declaration with respect t the Project in accordance with the provisions of CEQA and the CEQA Guidelines develope thereunder and the Mayor and Common Council will consider adoption thereof; and WHEREAS, it is appropriate for the Mayor and Common Council to take action wit respect to the disposition of the Site to the Developer by the Agency and to approve the DDA a set forth in this Resolution. NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: Section 1. On August 15, 2005, the Mayor and Common Council ("Council" conducted a full and fair joint public hearing with the Community Development Commission, a -3- P:\Aa::fnd..\ReSlllutions\R",olutlonsIlOOSIOs.-08-15 Wa,.on-W.'lridgr MCC Rrso B.doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the governing board of the Agency ("Commission"), relating to the disposition of the Site fro the Agency to the Developer and the development thereof pursuant to the DDA. The minutes 0 the City Clerk for the August 15, 2005 meeting of the Council shall include a record of al communication and testimony submitted to the Council by interested persons relating to th public hearing and the approval of the DDA and the adoption of the Mitigated Negativ Declaration. Section 2. The Council hereby receives and approves the 33433 Report and the othe written materials submitted to the Council at the meeting at which this Resolution is adopted. The 33433 Report contains information required under Health and Safety Code Section 33433. Section 3. Prior to the opening of the joint public hearing at which this Resolution i adopted, the Council received the IS, Response to Comments, and the Mitigation Monitoring an Reporting Program for the Project. The Council finds and determines that there are no othe significant environmental effects or any differences in the severity of environmental effect associated with the implementation of the DDA from those assessed in the IS that would requir additional environmental review and the Council hereby adopts the Mitigated Negativ Declaration and the Mitigation Monitoring Program. Section 4. This Resolution is adopted in satisfaction of the provisions of Health an Safety Code Section 33433 relating to the disposition and the sale of the Site by the Agency t the Developer on the terms and conditions set forth in the DDA. A copy of the DDA in the fo submitted at this joint public hearing is on file with the City Clerk. The Council hereby find and determines that the disposition and redevelopment of the Site by the Developer i accordance with the DDA is consistent with the City's General Plan and that the consideratio payable by the Developer to the Agency as the purchase price for the Site, pursuant to the DDA is an amount which is not less than fair market value, and is more than the fair re-use value at it highest and best use, as set forth in the 33433 Report and the disposition of the Site to th Developer on the terms set forth in the DDA shall assist in the elimination of blight on the Site. Section 5. The Resolution shall become effective immediately upon its adoption. -4- r:\Attndu\Rnolulions\RnolutionsIl005\05-08-15 Wlllion-Wntridge MCC Reso B.doc 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN OF SAN BERNARDINO APPROVING THE 2005 DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND WATSON-WESTRIDGE, LLC ("DEVELOPER") (CITY AND AGENCY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING AVENUE (AP# 0155-361- 25, 0155-381-11 & 45 - 143.72 ACRES IN THE CITY OF SAN BERNARDINO) ("PROPERTY") AND MAKING CERTAIN FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE PROPERTY 3 4 5 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 8 Common Council of the City of San Bernardino at a meeting thereof, held 9 on the , 2005, by the following vote to wit: day of 10 Council Members: Abstain Aves Nays Absent 11 12 ESTRADA LONGVILLE MCGINNIS DERRY KELLEY JOHNSON MC CAMMACK 13 14 15 16 17 18 Rachel G. Clark, City Clerk 19 20 The foregoing resolution is hereby approved this day of ,2005. 21 22 23 Judith Valles, Mayor City of San Bernardino 24 Approved as to form and Legal Content: 25 J 1/:;) . 0 I.:::--r~____ -5- P:\Ai:endas\ResolutiOll.s\IUsolutl0Il.5\2005\OS+OIl-15 W.ISlIn-Weslrldce MCC Reso B.doc RESOLUTION NO. 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO ("CITY") AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") RELATING TO THE SALE OF CITY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING AVENUE (135.6 ACRES: AP# 0155-361-25) IN THE CITY OF SAN BERNARDINO 3 4 5 6 7 WHEREAS, the City of San Bernardino, California (the "City"), is a municipal 8 corporation and charter city, duly organized and existing pursuant to the provisions of the 9 constitution of the State of California; and 10 WHEREAS, the City is the current owner of that certain real property consisting of II approximately 135.6 acres (APN: 0155-361-25) located north of Foothill Drive, east of Sterling Avenue in the City of San Bernardino (the "Property"); and WHEREAS, the City has determined that the Property is no longer necessary for the 12 13 14 City's use; and 15 WHEREAS, the City desires to sell the Property to the Redevelopment Agency of the City of San Bernardino (the "Agency") pursuant to the provisions of the Charter of the City and 16 17 the provisions of the Municipal Code, including without limitation Section 2.65.050; and WHEREAS, the Agency is also the current owner of that certain real property consisting 18 of approximately 8.12 acres (APN: 0155-381-11 and 45) located north of Foothill Drive, east of 19 20 Sterling A venue in the City of San Bernardino, south of the City's Property, separated by property owned by the San Bernardino County Flood Control District; and 21 WHEREAS, an updated MAl appraisal of the Property has been completed by Smothers 22 Appraisal (the "Appraisal") confirming a fair market value of Seven Hundred Seventy Six 23 Thousand Dollars ($776,000) for the City's Property and Three Hundred Sixty Eight Thousand Dollars ($368,000) for the Agency's property for a total fair market value of $1,144,000; and 24 25 WHEREAS, the Agency is entering into a 2005 Disposition and Development -1- P:\Al:endn\JW50Iutions\ReJolutioRs\2005\OS-08-15 Wau,m-Wutridce CDC Ruo CI.doc r--- , 2 Agreement (the "DDA") with Watson-Westridge, LLC (the "Developer"), pursuant to which the Agency will, simultaneously with its purchase of the Property from the City, sell the Property and the Agency's property to the Developer for a purchase price of One Million Two Hundred 3 4 Thousand Dollars ($1,200,000) which is considered to be in excess of the fair market value of the City Property and the Agency property; and WHEREAS, the difference between the sales price of $1,200,000 and the appraised value of the two properties of $1,144,000 is $56,000 (the "Excess Price") which is being 5 6 7 8 obligated by the Agency under the DDA for the potential acquisition of the required easement or land from the County of San Bernardino Flood Control District to connect the City Property and the Agency property, and if the Excess Price is not needed for said purchase, the Excess Price will be retained by the Agency to off-set its legal and administration expenses related to the Project; and 9 10 11 12 WHEREAS, the DDA provides for the development of the Property and the Agency 13 property by the Developer as a residential neighborhood consisting of at not more than 77 single 14 family detached homes (the "Project"); and WHEREAS, the Agency is the "lead agency" for the Project, under the California 15 16 Environmental Quality Act, California Public Resources Code Sections 21000, et seq. 17 ("CEQA"), in accordance with Public Resources Code Section 21067 and Title 14 California 18 Code of Regulations Sections 15050 and 15051; and WHEREAS, the IS identified potentially significant effects on the environment In 19 20 connection with the proposed Project; and 21 WHEREAS, based on the potential significant affects on the environment, and 22 comments received from respective affected agencies, the Agency has prepared the "Response 23 to Comments for the IS", dated July 25, 2005, and the Mitigation Monitoring and Reporting Program (the "Monitoring Program"), Attachments V and VI to the Staff Report, relative to the 24 25 DDA between the Agency and the Developer and the proposed Project to avoid or mitigate the -2- r:\Aeendl.\RestlllltioRs\Ri'solutions\2005\OS-OS-15 Wllson-Wnlridl:i' CDC Ruo CI,doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 potentially significant effects on the environment, and the Developer has agreed to implement such proposals pursuant to said Monitoring Program; and WHEREAS, the Agency has prepared and the Mayor and Common Council will consider approval of the Mitigated Negative Declaration with respect to the Project in accordance with the provisions ofCEQA and the CEQA Guidelines developed thereunder; and WHEREAS, a Purchase and Sale Agreement (the "Agreement") Attachment II to the Staff Report, pursuant to which the City will convey the Property to the Agency; and WHEREAS, it is appropriate for the Community Development Commission of the City of San Bernardino to take action with respect to the sale of the Property to the Agency and the subsequent disposition and development of the Property. NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: Section 1. The Community Development Commission hereby approves the Agreement and authorizes and directs the Chairperson to execute the Agreement on behalf of the Agency together with such technical and conforming changes as may be recommended by the Executive Director of the Agency and approved by Agency Counsel. Section 2. Provided that the Agreement has been fully executed by the parties, the Executive Director of the Agency is hereby authorized and directed to take all actions set forth in the Agreement on behalf of the Agency to close the escrow transaction described therein. Section 3. The Community Development Commission hereby directs and authorizes that a Mitigated Negative Declaration and Notice of Determination shall be prepared and filed with the County Clerk for the reasons noted in the above Recitals. Section 4. The Resolution shall become effective immediately upon its adoption. //1 /1/ /1/ -3- P:\AJ:cudasIRuolutions\Rnolutlons\l003\05-08-15 WIlI.on-~'rSlddl:e CDC Reso CLdoc 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO ("CITY") AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") RELATING TO THE SALE OF CITY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING A VENUE (135.6 ACRES: AP# 0155-361-25) IN THE CITY OF SAN BERNARDINO 3 4 S 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Communit 7 Development Commission of the City of San Bernardino at a meeting ,2005, by the following vote to wit: Nays Abstain Absent 17 Secretary 18 The foregoing resolution is hereby approved this day of ,2005. 19 20 Judith Valles, Chairperson Community Development Commission of the City of San Bernardino 21 22 23 Approved as to form and Legal Content: 1-' / - / il'l- !,qj Agency Cd / I /(/) //~ . ) . Y . t;JI{.{~/t>;1 24 By: 2S -4- P;\AgenduIRnolulion,\R..olulioluIZOOSI05-08-15 WIIJon-\\'ellridet CDC Reso Cl.duc RESOLUTION NO. 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE 2005 DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND WATSON-WESTRIDGE, LLC ("DEVELOPER") AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO EXECUTE SAID DDA RELATING TO THE SALE AND DEVELOPMENT OF CERTAIN CITY AND AGENCY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING AVENUE (AP# 0]55-36]-25, 0]55-381-11 & 45 - ]43.72 ACRES IN THE CITY OF SAN BERNARDINO) ("PROPERTY") AND MAKING CERTAIN FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE PROPERTY 3 4 5 6 7 8 9 10 II WHEREAS, the City of San Bernardino, California (the "City"), is a municipal 12 corporation and charter city, duly organized and existing pursuant to the provisions of the constitution of the State of California; and 13 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), 14 is a public body, corporate and politic existing under the laws of the State of California, Health 15 and Safety Code 33101, and is charged with the mission of redeveloping blighted and underutilized land, and the Agency desires to acquire certain land (the "Property") from the City pursuant to Health and Safety Code Section 33396; and 16 17 18 WHEREAS, the City has determined that the Property is no longer necessary for the City's use; and 19 20 WHEREAS, the Property consists of approximately 135.6 acres (APN: 0155-361-25) 21 located north of Foothill Drive, east of Sterling Avenue in the City of San Bernardino; and WHEREAS, the Agency is also the current owner of that certain real property consisting 22 23 of approximately 8.12 acres (APN: 0155-381-11 and 45) located north of Foothill Drive, east of 24 Sterling Avenue, south of the City's Property, separated by property owned by the San Bernardino County Flood Control District (the "Agency Property"); and 25 -1- P:\A~rlldu\Resolutionl\Rnolu'ion,\200!'i\05-08-15 Wa,."n-Wntrldi:r CDC Reso D.do( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WHEREAS, an updated MAl appraisal of the Property and the Agency Property has been completed by Smothers Appraisal (the "Appraisal"); and WHEREAS, said Appraisal has confirmed the fair market value of the Property and the Agency Property to be Seven Hundred Seventy Six Thousand Dollars ($776,000) for the City's Property and Three Hundred Sixty Eight Thousand Dollars ($368,000) for the Agency's Property for a total fair market value of $1,144,000; and WHEREAS, the Agency is entering into a 2005 Disposition and Development Agreement (the "DDA") with Watson~Westridge, LLC (the "Developer"), pursuant to which the Agency will, simultaneously with its purchase of the Property from the City, sell the Property and the Agency Property to the Developer for a purchase price of One Million Two Hundred Thousand Dollars ($1,200,000) which is considered to be in excess of the fair market value of the City Property and the Agency Property (collectively referred to as the "Site"); and WHEREAS, the difference between the sales price of $1,200,000 and the current appraised value of $1,144,000 for the Site is $56,000 (the "Excess Price") which is being obligated by the Agency under the DDA for the potential acquisition of the required easement of land from the County of San Bernardino Control District to connect the City Property and the Agency Property, and if the Excess Price is not needed for said purchase, the Excess Price will be retained by the Agency to off-set its legal and administration expenses related to the Project; and WHEREAS, the DDA provides for the development of the Site by the Developer as a residential neighborhood consisting of not more than 77 single family detached homes (the "Project"); and WHEREAS, the Agency has prepared and published a notice of joint public hearing in The San Bernardino County Sun Newspaper on July 18 and 25, 2005, regarding th, consideration and approval of the DDA and also published a notice of intent to adopt a Mitigated Negative Declaration related to the Project in accordance with California Envirorunental Qualit, Act ("CEQA"); and -2- r;\.Acfndu\JUlolutionIIRnolutlons\l00510S-0&-15 W.',on-Weuridl:t CDC Re,o D.doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency ma transfer the Site to the Developer subject to the Mayor and Common Council and th Community Development Commission adopting appropriate Resolutions authorizing the Agenc to transfer the Site in accordance with the findings set forth herein, pursuant to Health and Safet Code Section 33433; and WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safet Code Section 33433 that describes the salient points of the DDA and identifies the cost of th DDA to the Agency; and WHEREAS, the Agency is the "lead agency" for the Project, under the California Environmental Quality Act, California Public Resources Code Sections 21 000, et seq. ("CEQA"), in accordance with Public Resources Code Section 21067 and Title 14 California Code of Regulations Sections 15050 and 15051; and WHEREAS, the IS identified potentially significant effects on the environment In connection with the proposed Project; and WHEREAS, based on the potential significant affects on the environment, and comments received from respective affected agencies, the Agency has prepared the "Response to Comments for the IS, dated July 25, 2005, and the Mitigation Monitoring and Reporting Program (the "Monitoring Program"), Attachments V and VI to the Staff Report relative to the DDA between the Agency and the Developer and the proposed Project to avoid or mitigate the potentially significant affects on the environment, and the Developer has agreed to implement such mitigations pursuant to said Monitoring Program; and WHEREAS, the Agency intends on adopting a Mitigated Negative Declaration with respect to the Project in accordance with the provisions of CEQA and the CEQA Guidelines developed thereunder; and WHEREAS, it is appropriate for the Community Development Commission to take action with respect to the disposition of the Site to the Developer and to approve the DDA as set forth in this Resolution. -3- P:\Al::endu\RnolulioRs\R.!iolutions\200!\05-08-15 W.tson.Wulrldee CDe RUll D.doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: Section], On August 15, 2005, the Mayor and Common Council ("Council") conducted a full and fair joint public hearing with the Community Development Commission, as the governing board of the Agency ("Commission"), relating to the disposition of the Site from the Agency to the Developer and the development thereof pursuant to the DDA. The minutes of the Agency Secretary for the August 15, 2005, meeting of the Commission and the Council shall include a record of all communication and testimony submitted to the Commission by interested persons relating to the public hearing and the approval of the DDA and the adoption of the Mitigated Negative Declaration and the Mitigation Monitoring and Reporting Program. Section 2. The Commission hereby receives and approves the 33433 Report and the other written materials submitted to the Commission at the meeting at which this Resolution is adopted. The 33433 Report contains information required under Health and Safety Code Section 33433. Section 3. This Resolution is adopted in satisfaction of the provisions of Health and Safety Code Section 33433 relating to the disposition and the sale of the Site by the Agency to the Developer on the terms and conditions set forth in the DDA. A copy of the DDA in the form submitted at this joint public hearing is on file with the Agency Secretary. The Commission hereby finds and determines that the disposition of the Site by the Agency to the Developer and the redevelopment of the Site by the Developer in accordance with the DDA is consistent with the City's General Plan and that the consideration payable by the Developer to the Agency as the purchase price for the Site, subject to the satisfaction of the terms and conditions of the DDA, is an amount which is not less than fair market value, and is more than the fair re-use value at its highest and best use, as set forth in the 33433 Report and the .4. r:\Agmdu\Ruolulion.\RuolullonsIlOOSIOS-08-IS Walson-Wnlridtt CDe Ruo D,doc disposition of the Site to the Developer on the terms set forth in the DDA shall assist in the elimination of blight on the Site. Section 4. The Commission hereby approves the DDA. The Executive Director is hereby authorized and directed to execute the DDA on behalf of the Agency together with nonsubstantive and conforming changes as may be recommended by the Executive Director and Agency Counsel. The Executive Director is hereby authorized to take all appropriate actions to as set forth in the DDA to implement the disposition and redevelopment of the Site. Section 5. Prior to the opening of the joint public hearing at which this Resolution is adopted, the Commission received the IS, Response to Comments and the Mitigation Monitoring and Reporting Program for the Project. The Commission finds and determines that there are no other significant environmental effects or any differences in the severity of environmental effects associated with the implementation of the DDA from those assessed in the IS and that the Property will not require additional environmental review, and the Commission hereby adopts the Mitigated Negative Declaration and authorizes and directs the filing of the Notice of Determination with the County Clerk. The Resolution shall become effective immediately upon its adoption. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Section 6. 16 1// 17 1// 18 1// 19 1// 20 1// 21 1// 22 /1/ 23 1// 24 1// 25 1// /1/ P:\ACtndu\R"ollllionl\RtlolllllonIIl005\1I~na.-15 Wat,oR-Wntrldc, CDC Ruo D.doe -5- 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE 2005 DISPOSITION AND DEVELOPMENT AGREEMENT ("DDN') BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND WATSON-WESTRIDGE, LLC ("DEVELOPER") AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO EXECUTE SAID DDA RELATING TO THE SALE AND DEVELOPMENT OF CERTAIN CITY AND AGENCY PROPERTY LOCATED NORTH OF FOOTHILL DRIVE, EAST OF STERLING AVENUE (AP# 0155-361-25, 0155-381-11 & 45 - 143.72 ACRES IN THE CITY OF SAN BERNARDINO) ("PROPERTY") AND MAKING CERTAIN FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE PROPERTY 3 4 5 6 7 8 9 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 10 Community Development Commission of the City of San Bernardino at a II meeting thereof, held on the day of ,2005, by the following vote to wit: 12 Abstain Absent Commission Members: Ayes Nays 13 ESTRADA LONGVILLE MCGINNIS DERRY KELLEY JOHNSON MC CAMMACK 14 15 16 17 18 19 20 Secretary 21 The foregoing resolution is hereby approved this day of ,2005. 22 23 Judith Valles, Chairperson Community Development Commission of the City of San Bernardino 24 25 -6- P:\AgenduIResolutionIIRelolutions\2005\OS-08-1S W.tson-Wntridl:e cve Rnn D,doc ATTACHMENT I RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 201 North HE" Street, Suite 301 San Bernardino, California 92401 (Space Above Line for Use By Recorder) Recording Fee Exempt Pursuant to Government Code Section 6103 2005 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND WATSON-WESTRIDGE, LLC !' Scction 1.01. Scction 1.02. Section 1.03. Scction 1.04 Section 2.01. Section 2.02. Section 2.03. Section 2.04. Section 2.05. Section 2.06. Section 2.07. Section 2.08. Section 2.09. Section 2.10. Section 2.11. Section 2.12. Section 2.13. Section 2.14. Section 2.15. Section 2.16. Section 2.17. Section 2.18. Section 2.19. Section 2.20. Section 2.21. Section 2.22. Section 223. Section 2.24. Section 2.25. TABLE OF CONTENTS Pagc Purpose of Agreement............... ...... ..... .............. ... ............... ......... ........ ......... .... I The Project ....... ............... ........ ........ ............ ............ ........ ......... .................... ......1 Parties to this Agrcement ............................................... ........................ .........2 Restrictions Against Change in Ownership, Management and Control of the Developer and Assignment of Agrecment....................................2 ARTICLE 11 DISPOSITION OF THE PROPERTY ............................................4 Purchase and Sale of the Propcrty; Purchase Pricc; Other Monetary Obligations.......................................................................................................... 4 Deposit............................................................................................................... 4 Opening and Closing of Escrow ........................................................................5 Escrow Instructions............................................................................................ 5 Conveyance of Title...... ...... ........... .......... .......... .... ........ ... ... .......... ....................6 Additional Closing Obligations of the Agency..................................................6 Closing Obligations of the Developer........... .......... ........... .... .................. .... ......7 Inspections and Review............. .................... ............ ...... ... ... .............. .... ....... ... 7 Due Diligence Investigation of the Property By the Developer ........................9 Due Diligence Certificate ................................................................................ I 0 Books and Records ..........................................................................................10 Condition of the Property-Developer's Release ..............................................10 Review and Approval of Condition of Title by the Developer........................12 RESERVED... ........... .... .... ...... ....... ......... .... ............... ..... ............... ...... ........ ...12 Extension of Due Diligence Period..................................................................12 Developer's Conditions Precedcnt to Close Escrow .......................................13 Agency's Conditions Precedent to Close Escrow............................................14 Distribution of Documents to the Developer After Closing Date by Escrow Holder .............. ....... .......... .......... ... ... ...... .... ..... ....... ................. ..... ........... ...... ..14 Satisfaction of Conditions....... ........ ............ ............ ................. ..... ......... ..15 RESERVED ........ ........... ......... ...... .............. ........ ................ ........... .... ............ ..15 Prorations, Closing Costs, Possession .............................................................15 RESERVED ....... ...... .................. ............. ........ .................................... ......... .... I 6 Breach by the Developer of Artiele 11 Liquidated Damages Payable by the Developer to thc Agency .................................................................................16 Representations and Warranties .............. ...... ..... ....... ..... .......... ....... ..... ......... ... ] 6 Damage, Destruction and Condemnation ........................................................19 Section 3.01. Section 3.02. Section 3.03. Section 3.()4. Section 3.05. Section 3.()6. Section 3.07. Section 4.01. Section 4.02. Section 4.03. Section 4.04. Section 5.01. Section 5.02. Section 5.03. Section 5.04. Section 5.05. Section 5.06. Section 6.01. Section 6.02. Section 6.03. Section 6.04. Section 6.05. Section 6.06. Section 6.07. Section 6.08. ARTICLE III DEVELOPMENT OF THE PROJECT......................................19 Development ofthe Project by the Developcr.................................................19 RESERVED.................................................................................................... .23 Taxes and Assessments................................................................................... .23 Change in Ownership Management and Control of the Developer............. Assignment and Transfer .................................................................................24 Security Financing; Right of Holders ..............................................................26 Right of the Agency to Satisfy Other Liens on the Property after Conveyance of Title.........................................................................................2 8 Certificate of Completion... ...... ................ .......... ..... ........... ..... ..................... ...28 ARTICLE IV USE OF THE SITE..........................................................29 Uses..................................................................................................................2 9 Maintenance of the Property....... ............ ............ ......................... ......... ..... ......29 Obligation to Refrain from Discrimination......................................................29 Form of Nondiscrimination and Nonsegregation Clauses ...............................30 ARTICLE V DEFAULTS, REMEDIES AND TERMINATION .................................30 Defaults - Genera] ............ ........ ..... ..................... ............. ..... ......... .................. .30 Legal Actions.... ..................... ........ ..... ................ ................... ...... ......... ...........31 Rights and Remedies are Cumulative..............................................................31 Damages.................................................................... ......................................3] Specific Performance Prior to Close of Escrow ..............................................32 Agency Rights of Termination Following Close of Escrow............................32 ARTICLE VI GENERAL PROVISIONS ....................................................33 Notices, Demands and Communications Bctween the Parties ........................33 Conflict of Interest ...... ........ ........ ........ ................ ........ ................................. ....34 Warranty Against Payment of Consideration for Agreement..........................34 Nonliability of Agency Officials and Employees ............................................34 Enforced Delay: Extension of Time ofPerformance.......................................34 Inspection of Books and Records ....................................................................34 Approvals......................................................................................................... 3 5 Real Estate Commissions.. ..... ..... ...... ........... .......... ............. ... ..... ..... ..... ........ ...35 II Section 6.09. Section 6.10. Section 6.] 1. Section 6.12. Indemni fication ................................................................................................ 3 5 Release of the Developer from Liability..........................................................37 Attorneys' Fees ................. ................... ......... ........... ........................... ......... ....3 7 Effect................................................................................................................3 7 ARTICLE Vll ENTIRE AGREEMENT; COUNTERPARTS; NO MERGER WITH GRANT DEED; WAIVERS AND AMENDMENTS ............................................37 Section 7.01. Section 7.02. Entire Agreement; Counterparts ......... ........... ............... ........... ........ ................37 No Merger; Waivers and Amendments ...........................................................37 ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION ...................................................38 Section 8.01. Execution and Recordation ....................................................................................38 EXHIBIT "A" EXHIBIT "A-I" EXHIBIT "B" EXHIBIT "C" EXHIBIT "0" EXHIBIT "E" EXHIBIT "F" LEGAL DESCRIPTION OF THE PROPERTIES REQUIRED BUILDING STANDARDS DESCRIPTION OF PROJECT AND SCOPE OF DEVELOPMENT FORM OF TENTATIVE TRACT MAP LETTER AGENCY GRANT DEED SCHEDULE OF PERFORMANCE FORM OF CERTIFICATE OF COMPLETION 111 2005 DISPOSITION AND DEVELOPMENT AGREEMENT (Watson-Westridge, LLC) This 2005 Disposition and Development Agreement (this "Agreement") is entered into as of August 15, 2005, by and between the Redevelopment Agency of the City of San Bcrnardino, a public body corporate and politic (the "Agency") and Watson-Westridge, LLC a California limited liability company (the "Developer"). The Agency and the Developer hereby agree as follows: Section 1.01. Purnose of Agreement. In accordance with Sections 33396 and 33431 of the California Health and Safety Code, the purpose of this Agreement is to provide for the sale by the Agency to the Developer of certain unimproved lands more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference (collectively and severally, the "Property"). Section 1.02. The Proiect. Promptly following the conveyance of the Property by the Agency to the Developer, the Developer shall undertake the first phase of development of the Property as a residential neighborhood consisting of single family detached homes of approximately 2,500 square feet or more (the "Residences"). Subject to any contrary requirements related to fuel modification and/or any applicable laws or regulations or requirements, the community of Residences shall be developed in accordance with and shall contain the features described in Exhibit "A- 1" (which features, as modified by the requirements of the immediately preceding sentence, shall be referred to as the "Required Building Standards") and will also include walking and hiking trails, monumental entry-ways, green areas, landscaping and open and natural undisturbed areas (collectively and severally, and as further set forth in Section 2.01(b), the "Environmental Amenities") (the Residences and the Environmental Amenities being hereinafter referred to as the "Project"). In the first phase of development of the Project, the Developer shall commence the following after receipt of relevant governmental approvals and permits: (a) Mass grade the entire Project area (as appropriate) within sixty (60) calendar days after Close of Escrow for the acquisition of the Property from the Agency and approval of a master grading plan; (b) Install drainage facilities and utilities, as appropriate for the development plan in accordance with governmental requirements; (c) Develop the Residences in an orderly fashion based upon prevailing market conditions. Notwithstanding the foregoing, it is intended that between 5 and 77 residential dwelling units comprising the Residences will be developed initially. The Project is more particularly described in Exhibit "B" attached hereto (Description of Project and Scope of Development) and in Section 3.0 I hereof and as shall be further set forth in the Tentative Tract Map (as defined below) (the Project as described in said Exhibit "B" and Section 3.01 is herein referred to as the "Scope of Development"). A tentative tract map with respect to the Property (the "Tentative Tract Map") has been submitted to the City of San Bernardino (the "City"). The draft Letter stating that the Developer has approved the final form of the Tentative Tract Map is attached hereto as Exhibit "c" in the form as shall be executed and delivered by the Developer prior to the Closing Date as provided in Section 2. I 6(7) hereof. Approval of the Tentative Tract Map by the City and the acceptance thereof by the delivery of the Letter by the Developer to the Agency in the form as set forth in Exhibit "c" may occur subsequent to the execution and delivery of this Agreement but in any event shall occur prior to the Closing Date as further provided in Sections 2.06, 2.07, 2.16 and 2.17. P;\Agendas\Agenda Attachmellts\Agm,ts-P.mend 2005\O~-()8-1S Wats::>n W"stridge 'lna: DrA.d,-)C In addition to the commitments of the Developer as contained in this Agreement, and for informational purposes only, the Developer has stated that it will provide up to Two Hundred Thousand Dollars ($200,000) in matching funds to improve landscaping in the Del Rosa area in a final to be determined amount not to exceed that amount as may be contributed by the City from (i) Capital Improvement Program Budget, Account No. SS05-05, Del Rosa Enhancement Project not to exceed S 100,000, and (ii) such additional City budget amounts as may be made available for the 2005-06 fiscal year for said purposes. Section 1.03. Parties to this Agreement. (a) The Agency is a public body, corporate and politic, exercIsing governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California (Health and Safety Code Section 33020, et seq.). The principal office of the Agency is located at 201 North "E" Street, Suite 301, San Bernardino, California 92401. (b) The Developer is a California corporation. The principal office and mailing address of the Developer for purposes of this Agreement is: Watson-Westridge, LLC Attn.: James R. Watson lOl Main Street, Suite A Seal Beach, California 90740 Telephone: (562) 430-0503 Fax: (562) 493-5860 (c) The City of San Bernardino is not a party to this Agreement. Section 1.04. Restrictions Against Change in Ownership, Management and Control of the Developer and Assignment of Agreement. The qualifications and identity of the Developer are of particular concern to the Agency. It is because of those qualifications and identity that the Agency has entered into this Agreement with the Developer. Prior to the issuance of a Certificate of Completion as set forth in Section 3.07, no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement; provided, however, that the parties hereto acknowledge and agree that the Developer may assign some or all of its right, title and interest in this Agreement (or to relevant portions or phases of the Project) to an entity or entities, which agree to build in accordance with the Required Building Standards attached hereto as Exhibit "A- I" and, which is (a) at least twenty five percent (25%) owned directly or indirectly by the Developer or an affiliate of the Developer and the managing member or manager, of which is the Developer or an affiliate of the Developer, or (b) an entity not affiliated with Watson-Westridge, LLC (which, unaffiliated entity is defined herein as a "Builder"). The Builder together with an assignee permitted pursuant to the Section 1.04, shall be individually referred to hereinafter as an "Approved Assignee") where Watson-Westridge, LLC ("Watson"), retains the following obligations and responsibilities: (i) Watson shall detennine that the Builder is suitable for undertaking the obligations required under this Agreement and for the construction of its portion of the Project (i.e., a custom home contractor intending to construct three very large homes in a cuI de sac will be evaluated differently than one or more Builders proposing different styles of housing for different neighborhoods within the Project); and 2 P:\.L.gel:das\Agenda Attachments\AgrmC"-A.'1'.",,,d 2005\85-08-15 Wa~son Westridge rinal D:JA.doc (ii) Watson shall require that the Builder, in any purchase agreement, expressly assume the obligations set forth in the Required Building Standards and such Builder shall comply with same. Such purchase agreement shall further provide that Watson shall be entitled to approve (with such approval not being unreasonably withheld) prior to the submission thereof to any governmental entity (aa) the size, floor plans, elevations, color palettes, interior finishes, features and landscaping styles, and (bb) the plotting of the houses (i.e., the relationship of particular models and elevations to other nearby models and elevations, to ensure, for example, that identical homes are not located next to each other). The purpose of Watson's approval rights shall be to determine compliance with the Required Building Standards and ensure that each Builder is performing in a manner consistent with Watson's standards for the entire Project. The Approved Assignee shall expressly assume the obligations of the Developer under this Agreement with respect to the portion or phase of the Project expressly assigned by Watson to any Approved Assignee and shall agree to be subject to the conditions and restrictions, to which the Developer is subject under this Agreement, and, upon such assumption, the Approved Assignee shall become the Developer hereunder for all purposes; provided, however, that Watson shall remain obligated to perform all duties imposed on the Developer under this Agreement until such time as the Certificate of Completion is furnished to the Developer by the Agency, as provided in Section 3.07 hereof. The Developer shall not, except as set forth above or as authorized in Section 3.04 hereof for a Transfer as a Permitted Transfer, assign all or any part of this Agreement or any rights hereunder prior to the issuance of the Certificate of Completion with respect to the Project without the prior written approval of the Executive Director of the Agency, which approval shall not be unreasonably withheld. The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the business entities and individuals either comprising or in control of the Developer, as well as any and all changes in the interest or the degree of control of the Developer by any such party, of which information the Developer or any of its officers have been notified or may otherwise have knowledge or information. This Agreement may be terminated by the Agency prior to the Close of the Escrow as set forth in Section 2.03 if there is any significant or material change, whether voluntary or involuntary, in membership, ownership, management or control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been reasonably approved by the Agency prior to the time of such change or the Agency may seek other appropriate relief in the event that at any time following the Close of Escrow and prior to issuance of the Certificate of Completion such a change in the ownership, or control of the Developer occurs with respect to the Property; provided, however, that (i) the Agency shall first notify the Developer in writing of its intention to terminate this Agreement or to exercise any other remedy, and (ii) the Developer shall have twenty (20) calendar days following receipt of such written notice to commence and thereafter diligently and continuously proceed with the cure of the default of the Developer and submit evidence of the initiation of satisfactory completion of such cure to the Agency in a form and substance deemed satisfactory to the Agency, in its reasonable discretion. In the event that Watson has assigned its rights, duties, and/or obligations to a Builder, and such Builder is in breach of this Agreement, then the Agency shall give Watson and such Builder notice thereof. In the event the Builder has failed to cure such breach after notice as provided or permitted elsewhere in this Agreement, then Watson shall have an additional period of time equal to three (3) months after the Builder has failed to cure such breach; provided, however, that so long as the Developer is diligently pursuing such cure of a Builder's breach then, the Developer shall have the right to effect cure of the Builder's breach for an additional three (3) month period of time. The Agency shall accept cure by Watson, as the Developer, for any breach caused by a Builder, the Developer or Watson. 3 p, \Aqendas\,r;genda At tachments\Aormts-A:ner.d 2 OCS\iJ',-OS-j S Wats<:Jn Westr idge Final DDA. Joe ARTICLE II DISPOSITION OF THE PROPERTY Section 2.01. Purchase and Sale of the Property; Purchase Price; Other Monetary Obligations. (a) Purchase and Sale. Subject to all of the terms, conditions and provisions of this Agreement, and in consideration of the promises and agreements of the Agency and the Developer herein set forth, the Agency hereby agrees to sell to the Developer merchantable lien free title to and the Developer hereby agrees to purchase all of the right, title and interest of the Agency in the Property. (b) Purchase Price and Other Monetary Obligations. As the purchase price of the Property, the Developer shall pay to the Agency One Million Two Hundred Thousand Dollars ($1,200,000) in cash (the "Purchase Price"). Such Purchase Price has been determined by the Agency to be sufficient consideration of a dollar amount equal to not less than the fair marker value as determined by a qualified MAl appraiser for the two (2) separate parcels comprising the Property to be sold by the Agency to the Developer. Such Purchase Price also includes an amount to be made available within the total dollar amount of the Purchase Price that is presently considered to be sufficient for the acquisition of the easement or fee interest in the property owned by the County of San Bernardino as identified and as further provided in Section 2.16(6) hereof. The Developer shall also provide such other required funds as may be necessary for the construction and improvements consisting of the Environmental Amenities which are comprised of the items set forth in Section 1.02 plus (i) in excess of one mile of walking and hiking trails,(ii) monumental entry-ways, (iii) two gazebos, and (iv) a passive park. In addition to the Purchase Price and such additional monetary obligations as are set forth in the immediately preceding sentence, the Developer shall donate Fifty Thousand Dollars ($50,000) to the Literacy Program managed by California State University at San Bernardino (the "Educational Grant"). The value of the Purchase Price plus the above set forth additional consideration items consisting of the Environmental Amenities and the Education Grant shall therefore have a value in excess of the Purchase Price. (c) Payment of Purchase Price. The Developer shall pay the Purchase Price in cash at the Close of Escrow. The Environmental Amenities shall be installed as part of the development of the Project pursuant to the Schedule of Performance and the Educational Grant shall be funded not later than the date of sale of the first of the Residences. Section 2.02. Deposit. (a) Within five (5) business days following the execution of this Agreement by both parties, the Developer shall deliver to the Escrow Holder (as hereinafter defined) Ten Thousand Dollars ($10,000). This sum upon its receipt by the Escrow Holder( plus any interest thereon), is referred to in this Agreement as the "Deposit". Upon receipt of the Deposit together with a fully executed copy of this Agreement, the Escrow Holder shall cause the Escrow (as hereinafter defined) to be opened as provided in Section 2.03, and the Escrow Holder shall place the Deposit into an interest-bearing escrow account with the interest thereon to accrue to the benefit of the Developer. At the Close of Escrow (as hereinafter defined), the Deposit shall be applied as a credit to the Purchase Price of the Property. (b) The Deposit (less an amount equal to the customary and reasonable escrow cancellation charges of the Escrow Holder) shall be returned to the Developer in the event that: (i) the Agency or the Developer terminates this Agreement pursuant to Section 2.03(b); or 4 P:\Ager.jas\Aqenda Attachments\Agrmts-A;nend 2005\05-08-15 Watson West ridge final D>:ll\.doc (ii) the Developer does not deliver its Due Diligence Certificate (as hereinafter defined) to the Escrow Holder pursuant to Section 2.03(b) and this Agreement is terminated; or (iii) the Developer's conditions precedent to the Close of Escrow described in Section 2.16 are not satisfied (unless satisfaction has been waived by the Developer) and this Agreement is terminated; or (iv) the Property is materially damaged prior to the Close of Escrow, or an action of eminent domain is commenced by a governmental entity with respect to the Property prior to the Close of Escrow, and the Developer elects to terminate this Agreement pursuant to Section 2.25. Section 2.03. Opening and Closing of Escrow. (a) The transfer and sale of the Property shall take place through an Escrow (the "Escrow") to be administered by First American Title Insurance Company or such other escrow or title insurance company mutually agreed upon by the Seller and the Agency (the "Escrow Holder"). The Escrow shall be deemed open ("Opening of Escrow") upon the receipt by the Escrow Holder of a fully executed copy of this Agreement and the Deposit. The Escrow Holder shall promptly confirm to the parties the escrow number and the title insurance order number assigned to the Escrow. (b) Subject to any extensions of time granted pursuant to Section 2.15 hereof, in the cvent that the Developer has not delivered its Due Diligence Certificate to the Agency and the Escrow Holder within ninety (90) calendar days from the Opening of Escrow for any reason, then the Agency shall provide the Developer with notice thereof and thirty (30) calendar days following the Developer's receipt thereof to provide a Due Diligence Certificate either approving the Due Diligence or conditionally approving the Due Diligence. In the event that the Developer fails to provide the Due Diligence Certificate during such thirty (30) calendar day period, then on the expiration of such thirty (30) calendar day period, this Agreement shall terminate upon written notice to the Escrow Holder from either the Agency or the Developer, whereupon the Deposit shall be returned by the Escrow Holder to the Developer (less an amount equal to the customary and reasonable escrow cancellation charges payable to the Escrow Holder) without further or separate instruction to the Escrow Holder, and the parties shall each be relieved and discharged from all further responsibility or liability under this Agreement. (c) Provided that the Developer has delivered the Due Diligence Approval Certificate within the period of time authorized in Section 2.10, then the Closing Date of the Escrow shall occur within twenty (20) calendar days thereafter, unless the Close of Escrow is extended (a) unilaterally by the Developer pursuant to Section 2.16 or (b) to a date that is more than twenty (20) calendar days thereafter by mutual agreement of the Agency and the Developer. The words "Close of Escrow", "Closing Date" and "Closing" shall mean and refer to the date when the Escrow Holder is in receipt of the Escrow documents of the parties and is in a position to comply with the final written escrow closing instructions of the parties and cause the Agency Grant Deed for the Property to be recorded and the Title Policy (as defined below) to be delivered to the Developer. Section 2.04. Escrow Instructions. This Agreement also constitutes escrow instructions of the parties to the Escrow Holder. Additionally, the Developer and the Agency each agree to execute the customary supplemental escrow instructions of the Escrow Holder in the form provided by the Escrow Holder to its clients in real property escrow transactions administered by it. In the event of a conflict between the additional terms of such customary supplemental escrow instructions of the Escrow Holder and the provisions of this Agreement, this Agreement shall supersede and be controlling. Upon any 5 P:\Agendas\Agenda Att;;chmen~s\Agrmt.s-."[';e~J 2005\05-08-15 W~t-~on ,,"'estr;dge Flnal DDA.doc termination of this Agreement or cancellation of the Escrow, the Developer shall be solely responsible for the payment of the escrow cancellation costs of the Escrow Holder, the Escrow Holder shall forthwith return all monies (as provided in this Agreement) and documents, less only the Escrow Holder's customary and reasonable escrow cancellation fees and expenses, as set forth herein. Section 2.05. Convevance of Title. On or before 12:00 noon on the business day preceding the Closing Date, the Agency shall deliver to the Escrow Holder a grant deed in the form attached hereto as Exhibit "D" (the "Agency Grant Deed") duly executed and acknowledged by the Agency, which Agency Grant Deed shall convey all of its merchantable lien free right, title and interest of the Agency in the Property to the Developer. The Escrow Holder shall be instructed to record the Agency Grant Deed in the Official Records of San Bernardino County, California, if and when Escrow Holder holds the various instruments of the parties as set forth herein and can obtain for the Developer an AL T A owner's extended coverage policy of title insurance ("Title Policy") issued by First American Title Insurance Company or such other title insurance company mutually agreed upon by the parties ('Title Company") with liability in an amount equal to the Purchase Price, together with such endorsements to the policy as may be reasonably requested by the Developer, insuring that the Property with fee title to the Property vested in the Developer is free and clear of options, rights of first refusal or other purchase rights, leases or other possessory interests, lis pendens and monetary liens and/or encumbrances and subject only to: (I) non-delinquent real property taxes; (2) non-monetary title exceptions approved by the Developer pursuant to Section 2.13 below; (3) applicable provisions of the Tentative Tract Map; (4) the effect of any conditions imposed by the City as part of the development plan approvals for the Project accepted by the Developer; (5) the provisions of the Agency Grant Deed; (6) the applicable provisions of this Agreement; and (7) such other title exceptions, if any, resulting from documents being recorded or delivered through Escrow. Section 2.06. Additional Closing Obligations of the Agencv. On or before 12:00 noon on the business day preceding the Closing Date (unless indicated otherwise), the Agency shall deliver to the Escrow Holder (unless indicated to be delivered directly to the Developer) copies of the following documents and other items: (l) a certificate of non-foreign status executed by the Agency, in the customary form provided by the Escrow Holder, and a California Franchise Tax Board Form 590- RE executed by the Agency; (2) all soils, seismic, geologic, drainage, and environmental reports, and surveys, with respect to the Property, if any, which the Agency has in its possession and/or control to the extent that originals of such items have not been delivered previously by the Agency to the Developer pursuant to Section 2.08 below; 6 P:\A;-E",jas\ACjEnda Attachnle~.ts\Agrmts~kTlenj 2005\05-08-]5 Watson Westridge Flnal DDA.doc (3) two (2) duplicate original copies of the Closing Statement described in Section 2.21, duly executed by the Agency; (4) evidence of the existence, organization and authority of the Agency and of the authority of persons executing documents on behalf of the Agency reasonably satisfactory to the Escrow Holder and Title Company; (5) Receipt by the Agency of the Letter duly executed by the Developer with respect to the final Tentative Tract Map as prepared by the Developer and approved in final form by the City; and (6) any other documents, instruments, funds and records required to be delivered to the Developer under the terms of this Agreement, which have not been previously deli vered. Section 2.07. Closing Obligations of the Developer. On or before 12:00 noon on the business day preceding the Closing Date, the Developer shall deliver to the Escrow Holder copies of the following documents and other items: (I) an acknowledgment and acceptance of the Agency Grant Deed, duly executed and acknowledged by the Developer; (2) two (2) duplicate original copies of the Closing Statement, duly executed by the Developer; (3) evidence of the existence, organization and authority of the Developer and of the authority of persons executing documents on behalf of the Developer reasonably satisfactory to the Escrow Holder and the Title Company; (4) a certificate of the Developer dated as of the Closing Date stating that the financial condition of the Developer has not been adversely affected since the date of this Agreement that would in any manner materially impact the ability of the Developer to perform all conditions, covenants and obligations as set forth in this Agreement to provide for such items as, including, but not limited to, the commencement of the site grading and construction and installation of the public improvements and infrastructure; (5) the final form of the Letter duly executed and delivered by the Developer approving the final form of the Tentative Tract Map after such Tentative Tract Map shall have been approved in final form by the City; and (6) any other documents, instruments or funds required to be delivered by the Developer under the terms of this Agreement or as otherwise required by Escrow Holder or Title Company in order to close Escrow, which have not previously been deli vered. Section 2.08. Inspections and Review. (a) Due Diligence Items. Within five (5) business days after the execution of this Agreement, the Agency shall deliver true, correct and complete copies or originals of the following documents and items (collectively, "Due Diligence Items") to the Developer: 7 P:\Agendil.s\ArlE'ndd Att,,'-'Cl:nent,;\Agrmls-Arr,end 20C5\05-08-15 Wa:son ~"estndge !'"ina) DDA.doc (1) copies of all soils, seIsmic, geologic, drainage, engineering, environmental and similar type reports and surveys (including, but not limited to, any Property Environmental Site Assessments), surveys, relating to the Property if any, in the possession or control of the Agency. (2) notices of violations, including, but not limited to, zoning ordinances, development or building codes affecting the Property within the Agency's possession or control. (3) disclosure of any legal matters affecting the use or condition of the Property within the knowledge of the Agency. (b) Certain Definitions. For the purpose of this Agreement, the terms set forth below shall have the following meaning: (i) "environmental laws" means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability of standards of conduct concerning any hazardous substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property), occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") [42 USC Section 9601 et ~.]; the Resource Conservation and Recovery Act of 1976 CRCRA") [42 USC Section 690] et ~.]; the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33 USC Section 125] et seq.]; the Toxic Substances Control Act ("TSCA") []5 USC Section 260] et ~.]; the Hazardous Materials Transportation Act CHMTA") [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et ~.] the Clean Air Act [42 USC Section 740] et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 690] et ~.]; the Surface Mining Control and Reclamation Act [30 USC Section ]01 et ~.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C Section 25288 et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et ~.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C Section 24249.5 et ~.] the Porter-Cologne Water Quality Act [Water Code Section 13000 et ~.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. (ii) "hazardous substances" includes without limitation: those substances included within the definitions of "hazardous substance," "hazardous waste," "hazardous material," Htoxic substance," "solid waste," or "pollutant or contaminate" in CERCLA, RCRA, TSCA, HMTA, or under any other environmental law; and 8 F: \Age[]d"s\Age~da Attachments\Agrmts-Arr.e:ld 2005\05-08-13 ,Iatson Weslr.'.dge fiIlal DD.".doc those substances listed in the United States Department of Transportation (DOT)Table [49 CFR 172.101], or by the EPA, or any successor agency, as hazardous substances [40 CFR Part 302]; and other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and any material, waste, or substance that is: (I) a petroleum or refined petroleum product, (2) asbestos, (3) polychlorinated biphenyl, (4) designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317, (5) a flammable explosive, or (6) a radioactive material. Section 2.09. Due Diligence Investigation of the Propertv Bv the Developer. (a) Within ninety (90) calendar days from and after the Opening of Escrow, and subject to the extensions of time set forth below in Section 2.15 the Developer shall have the right to examine, inspect and investigate the Property (the "Due Diligence Period") to determine whether the condition of the Property is acceptable to the Developer and to obtain such development project approvals from the City for the improvement of the Project as the Developer may require in its sole and absolute discretion. (b) During the Due Diligence Period, the Agency shall permit the Developer, its engmeers, analysts, contractors and agents to conduct such physical inspections and testing of the Property as the Buyer deems prudent with respect to the physical condition of the Property, including the inspection or investigation of soil and subsurface soil geotechnical condition, drainage, seismic and other geological and topographical matters, surveys the potential presence of any hazardous substances, if any. (c) Any such investigation work on the Property may be conducted by the Developer and/or its agents during any normal business hours upon twenty -four (24) hours prior notice to the Agency, which notice will include a description of any investigation work or tests to be conducted by the Developer on the Property. Upon the Agency's request, the Developer will provide the Agency with copies of any test results. (d) During the Due Diligence Period, the Developer shall also have the right to investigate all matters relating to the zoning, use and compliance with other applicable laws, which relate to the use and development and improvement of the Property. The Developer may submit an application to the City and any other regulatory agency with jurisdiction for any and all necessary development project approvals for the Project. The Agency hereby consents to the submission of such development project approval applications by the Developer. 9 P:\Agendds\Ayenda Attachments\}\.grrnts-A,"end 200:'\05-[;8-15 Watson Westridge Flnal D:;'A.doc ( e) The Agency shall cooperate fully to assist the Developer in completing such inspections and investigations of the condition of the Property. The Agency shall have the right, but not the obligation, to accompany the Developer during such investigations and/or inspections. The Developer shall pay for all costs and expenses associated with the conduct of all such Due Diligence investigation including the cost of submitting any development project approval application as relates to the Project to any regulatory jurisdiction. (f) The Developer shall be entitled to perform such archaeological, environmental, biological and other studies as may be necessary or appropriate during the Due Diligence Period. In the event such archaeological, environmental, biological or other studies are not completed during the Due Diligence Period, then the Due Diligence Period may be extended, in the sole election of the Developer, for up to six (6) periods of two (2) months each or such longer period as may be necessary to complete such studies, so long as the Developer is diligently prosecuting such studies to completion. For example, in the event a biological study may only be undertaken during certain times in the year or a particular season, then the Developer shall be entitled to extend the Due Diligence Period for such period as may be necessary to conduct and evaluate such study. Section 2.10. Due Diligence Certificate. Within ninety (90) calendar days following the Opening of Escrow, the Developer shall complete its investigation of the Property (subject to any extensions of time as provided in Section 2.15 and elsewhere in this Agreement) and deliver a due diligence certificate signed by the Developer (the "Due Diligence Certificate") to the Escrow Holder, which either: (i) indicates that the Developer accepts the condition of the Property or; (ii) contains a description of the matters or exceptions relating to the condition of the Property, which the Developer was not able to accept or resolve to its satisfaction during the Due Diligence Period. In the event that there are matters that the Developer is unable to accept or resolve, such matters shall be deemed conditions to Closing for the benefit of the Developer and the Closing Date shall automatically be deemed extended for such period as maybe necessary to resolve such matters. Section 2.11. Books and Records. As part of the Developer's due investigations during the Due Diligence Period, the Developer shall be afforded full opportunity by the Agency to examine all books and records, which relate to the Property in the possession of the Agency and/or the Agency's agents or employees, including the reasonable right to make copies of such books and records. During the Due Diligence Period, the Agency will make sufficient staff available to assist the Developer with obtaining access to information relating to the Property, which is in the possession or control of the Agency. Section 2.12. Condition of the Propertv-Developer's Release. The Developer acknowledges and agrees that it shall be given a full opportunity under this Agreement to inspect and investigate every aspect of the Property during the Due Diligence Period. The Developer shall accept the delivery of possession to the Property on the Close of Escrow in an "AS IS", "WHERE IS" and "SUBJECT TO ALL FAULTS" condition. The Developer further agrees and represents to the Agency that by a date no later than the end of the Due Diligence Period, the Developer shall have conducted and completed (or waived the completion) of all of its independent investigation of the condition of the Property, which the Developer may believe to be indicated. The Developer hereby acknowledges that it shall rely solely upon its own investigation of the Property and its own review of such information and documentation as it deems appropriate for the purpose of accepting the condition and possession of the Property. The Developer is not relying on any statement or representation by the Agency relating to the 10 P:\Ag",r.d~5\Age[)da i'.tta::r.ments\Agrmts-A:n"nd 200:.\CS-G8-1S ~atsoll Westridge Final D:JA.doc condition of the Property unless such statement or representation is specifically contained in this Agreement. Without limiting the foregoing, the Agency makes no representations or warranties as to whether the Property presently complies with environmental laws or whether the Property contains any hazardous substance, as these terms are defined in Section 2.08 (b) hereof. Furthermore, to the extent that the Agency has provided the Developer with information relating to the condition of the Property, including information and reports prepared by or on behalf of the City of San Bernardino, the Agency makes no representation or warranty with respect to the accuracy, completeness or methodology or content of such reports or information. Without limiting the above, except to the extent covered by an express representation or warranty of the Agency set forth in this Agreement, the Developer, on behalf of itself and its successors and assigns, waives and release the Agency and its successors and assigns from any and all costs or expenses whatsoever (including, without limitation, attorneys' fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen, arising from or relating to the physical condition of the Property, the condition of the soils, the suitability of the soils for the improvement of the Project as proposed, or any law or regulation applicable thereto, including the presence or alleged presence or harmful or hazardous substances in, under or about the Property including, without limitation, any claims under or on account of (i) CERCLA and similar statutes and any regulations promulgated thereunder or (ii) any other environmental laws. The Developer expressly waives any rights or benefits available to it with respect to the foregoing release under any provision of applicable law, which generally provides that a general release does not extend to claims, which the creditor does not know of suspect to exist in his or her favor at the time the release is agreed to, which, if known to such creditor, would materially affect a settlement. By execution of this Agreement, the Developer acknowledges that it fully understands the foregoing, and with this understanding, nonetheless elects to and does assume all risk for claims known or unknown, described in this Section 2.12 without limiting the generality of the foregoing: The undersigned acknowledges that it has been advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS, WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." The undersigned, being aware of this code section, hereby expressly waives any rights it may have thereunder, as well as under any other statutes or common law principles of similar effect. Initials of the Developer: The provisions of this Section 2.12 shall survive the Close of Escrow. II P: \Agendas\Agenda A~:Q.:hrnents\Agrmts-Nnend 2005\CS-08-15 Watson Westridqe Final :lDA.doc Section 2.13. Review and Approval of Condition of Title bv the Developer. (a) Within fifteen (IS) calendar days following the Opening of Escrow, the Agency shall cause to be delivered to the Developer a preliminary title report or title commitment for an AL T A extended coverage policy of title insurance issued by the Title Company describing the state of title of the Property, together with (i) copies of all exceptions specified therein and with all easements plotted and (ii) a survey prepared in compliance with ALTAI ASCM standards and in a form acceptable to the Title Company for the deletion of the standard survey exception in the Title Policy relating to boundaries, without the addition of further exceptions unless the same are acceptable to the Developer in its sole and absolute discretion (the "Preliminary Title Report"). The Developer shall notify the Agency in writing of any objections the Developer may have to the title exceptions contained in the Preliminary Title Report ("Developer's Objection Notice") prior to the expiration of the Due Diligence Period. The Developer may condition its approval on the Agency's cure of any matters objected to by the Developer. (b) The Agency covenants not to further encumber and not to place any further liens or encumbrances on the Property, including, but not limited to, covenants, conditions, restrictions, easements, liens, options to purchase, options to lease, leases, tenancies, or other possessory interests without the prior written consent of the Developer. Upon the issuance of any amendment or supplement to the Preliminary Title Report, which adds additional exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement (provided that the period for the Developer to review such amendment or supplement shall be the later of the expiration of the Due Diligence Period or ten (10) calendar days from receipt of the amendment or supplement) and Escrow shall be deemed extended by the amount of time necessary to allow such review and approval in the time and manner set forth above. Section 2.14. RESERVED Section 2.15. Extension of Due Diligence Period. (a) In the event the Agency fails to provide to the Developer the documents and other information required by Sections 2.08 and 2.11 by the date(s) set forth therein, the Due Diligence Period for such information shall be extended by one (I) day for each day of the delay by the Agency to permit the Developer to perform an adequate due diligence review not to exceed one hundred twenty (120) calendar days. The Developer will use its best efforts to notify the Agency of any documents the Agency has failed to deliver to the Developer within the time periods provided in Sections 2.08 and 2.11. (b) The Due Diligence Period may be extended pursuant to the provisions of Section 2.09 (I). (c) In the event that the Developer certifies to the Executive Director that the Developer has undertaken substantial work to complete its investigation of the Property (including the expenditure of not less than $400,000), the Executive Director shall, upon the written request of the Developer, authorize an extension of the Due Diligence Period for up to four (4) additional periods of thirty (30) calendar days each. 12 P: \Ar;"ndd5\."ge~ja A:U;dimer.:s\Agrmts-Amend 200~\05-08-15 Watson ~'estridge Fir.al DDA.doc Section 2.16. Developer's Conditions Precedent to Close Escrow. The Developer's obligation to complete the purchase of the Property and Close the Escrow shall be conditioned upon the fulfillment of the following conditions precedent, all of which, shall be satisfied (or waived in writing pursuant to Section 2.19) prior to the Close of Escrow: (1) the Agency shall not have defaulted on any material term of this Agreement to be performed by the Agency hereunder, and each representation and warranty made by the Agency in this Agreement shall remain true and correct. For purposes of this subsection (1) only, a representation that is limited to the Agency's knowledge or notice shall be false if the factual matter that is subject to the representation is false, notwithstanding any lack of knowledge or notice to the Agency; (2) the Developer's approval (or conditional approval) of the Preliminary Title Report, within the time period specified in Sections 2.13 and cure of objectionable items by the Agency; (3) the Developer's approval of the contents of all Due Diligence Items, and the other investigations of the Property made by the Developer and/or its designees pursuant to Sections 2.08 and 2.09 herein on or before the expiration of the Due Diligence Period, or such later date as may be necessary for the cure by the Agency of those items conditionally approved by the Developer. The Developer shall be deemed to have disapproved such Due Diligence Items unless they are approved (conditionally or otherwise) on or before 5:00 p.m. on the day of the Due Diligence Period, or such later date if the Due Diligence Period is extended pursuant to Section 2.15 or any other provision hereof. In the event the Developer provides the Due Diligence Certificate to the Agency after notice as provided in Section 2.03 (b), then the Due Diligence Certificate shall be deemed timely given; (4) the Developer's approval of any notice of change in representation or warranty given by the Agency pursuant to Section 2.24(a) hereof; (5) the Title Company has committed to issue the Title Policy, In favor of the Developer in the form described in Section 2.05; (6) the Developer has received an agreement from: (a) the East Valley Water District or the San Bernardino City Water Department (or some other appropriate source of domestic water supply) with regard to the provision of water service to the Property and the location of certain water facilities; (b) those appropriate entities and/or individuals as may be required to implement the terms of any Fuel Modification Plan; (c) the City of San Bernardino, the County of San Bernardino, the Agency or other entity or individual with respect to claims to the Property and areas adjacent to the Property including, without limitation, the grant of an access easement or the fee purchase of property for roadway or other purposes necessary to link via a roadway the two non-adjoining parcels collectively compromising the Property, in a location and on terms and other conditions of use acceptable to the Developer in its sole discretion as to all of the foregoing conditions (a) through (c). The Agency shall utilize its best efforts to facilitate the foregoing agreements and hereby commits to spend an amount not to exceed $56,000 to implement the requirements of item (c), above if monetary consideration is required to be paid to any such public agencies for one or more of such agreements. The Agency also agrees to permit or cause portions of the Property to be exchanged by the Developer for other 13 P,\Agenda.s\Agenda Attachmentll\AgI"mts-Amend 2005\05-08-15 Watson Westridge Final DDA.doc land owned by other entities in order to facilitate the foregoing agreements without any cost to the Agency regardless of whether such exchange of land results in an increase or decrease in the number of developable lots on the Property. In the event that the Developer is unable to obtain such agreements, or any of them, prior to the Closing Date set forth in Section 2.03, then the Developer shall have the right to extend the time for the Close of Escrow so long as the Developer is acting diligently and in good faith, in its continuing efforts to obtain such agreements; (7) the Developer has received approval of its Tentative Tract Map respecting the Property and the Developer has delivered to the Agency the duly executed Letter of the Developer pursuant to Section 1.02 and in the form as attached hereto as Exhibit "C"; and (8) the Developer shall have obtained such consents as may be deemed appropriate by the Developer to provide for the development on the Property from the U.S. Army Corps of Engineers, the State of California Department of Fish & Game, U.S. Fish & Wildlife Service and the Santa Ana Regional Water Quality Control Board. Section 2.17. Agency's Conditions Precedent to Close Escrow. The Agency's obligation to convey the Property to the Developer shall be conditioned upon the fulfillment of the following conditions precedent, all of which, shall be satisfied (or waived in writing pursuant to Section 2.19) prior to the Close of Escrow: (I) the Developer has accepted the condition of the Property and submitted its Due Diligence Approval Certification to the Escrow Holder within the time period set forth in Section 2.03 of this Agreement, as such time period may be extended pursuant to Section 2.15 or any other provision hereof; (2) the Developer has accepted the condition of title of the Property on or before the date set forth in Section 2.13; (3) the final form of the Tentative Tract Map has been approved by the City and accepted by the Developer as evidenced by the Letter duly executed by the Developer in the form as attached hereto as Exhibit "C" and as required by Section 1.02 hereof; (4) the Developer shall not be in default of any material term of this Agreement to be performed by the Developer hereunder and each representation and warranty of the Developer made in this Agreement shall remain true and correct; and (5) the Developer shall be satisfied (or waive satisfaction) of each of the conditions precedent set forth in Section 2.16 and the Escrow is in a condition to close within sixty (60) following the expiration of the Due Diligence Period (as the Due Diligence Period or Close of Escrow may be extended pursuant to Section 2.15 or 2.16 respectively or any other provision of this Agreement). Section 2.18. Distribution of Documents to the Developer After Closing Date by Escrow Holder. The Escrow Holder shall deliver to the Developer within the (3) business days following the Closing Date a conformed copy of the Agency Grant Deed, as recorded and the policy of title insurance issued by the Title Company in favor of the Developer. 14 P: \l\ger:das\.'\genda At tacLmer.ts\Agrmts-Menrl 200S\OS- 08-1 S ,,'atsar. I'es~ridge Flnal DDA. doc Section 2.19. Satisfaction of Conditions. Where satisfaction of any of the foregoing conditions requires action by the Developer or by the Agency, each party shall use its diligent best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the foregoing conditions requires the approval of a party, such approval shall be in such party's sole and absolute discretion. Either party may waive any of the conditions set forth in this Agreement, but any such waiver shall be effective only if contained in a writing signed by the applicable party and delivered to the Escrow Holder. Section 2.20. RESERVED Section 2.21. Prorations, Closing Costs, Possession. (a) Real and personal property taxes for the Property shall be prorated by the parties to the Closing Date on the basis of a three hundred sixty-five (365) day year on the basis that the Agency is responsible for (i) all such taxes (if any) for the fiscal year of the applicable taxing authority occurring prior to the Current Tax Period (as defined below) and (ii) that portion of such taxes for the Current Tax Period to 11 :59 p.m. on the Closing Date, whether or not the same shall be payable prior to the Closing Date. The phrase "Current Tax Period" refers to the fiscal year of the applicable taxing authority in which the Closing occurs. All tax prorations shall be based upon the latest available tax statement. If the tax statements for the fiscal tax year during which Escrow closes do not become available until after the Closing Date, then the rates and assessed values of the previous year, with known changes, shall be used, and the parties shall re-prorate said taxes outside of Escrow following the Closing Date when such tax statements become available. The Agency shall be responsible for and shall payor reimburse the Developer upon demand for any real or personal property taxes payable following the Closing Date applicable to any period of time prior to the Closing Date as a result of any change in the tax assessment by reason of reassessment, changes in use of the Property, changes in ownership, errors by the Assessor or otherwise. (b) The Developer shall be entitled to exclusive possessIOn of the Property immediately upon the Close of Escrow. (c) The Agency shall pay that portion of the cost of the premium for the Title Policy equal to the cost of a CL T A owner's extended coverage policy of title insurance on the Property in the amount of the Purchase Price (a "CL T A policy of title insurance"), together with all title charges (including endorsements reasonably requested by the Developer to remove disapproved items shown on the Preliminary Title Report pursuant to Sections 2.13 and 2.14 above). The Agency shall pay one-half (Y2) of the customary and reasonable escrow fees, which may be charged by the Escrow Holder in connection with the Close of Escrow. The Developer shall be responsible for paying the difference in cost between a CL T A policy of title insurance and the AL T A policy of title insurance that is to be delivered to the Developer at the Close of Escrow, plus the cost of recording the Agency Grant Deed, together with one-half (Y2) of the cost of the customary and reasonable escrow fees charged by Escrow Holder in connection with the Close of Escrow. Any other Escrow-related transaction expenses or escrow closing costs incurred by the Escrow Holder in connection with this transaction shall be apportioned and paid for by the parties to this Agreement in the manner customary in San Bernardino County, California. 15 P:\Agendas\Agenda Attachments\Agrmts-Arnend 2005\05-08-15 Watson Westridge final DDA.doc No later than three (3) business days prior to the Closing Date, the Escrow Holder shall prepare for approval by the Developer and the Agency a closing statement ("Closing Statement") on the Escrow Holder's standard form indicating, among other things, the Escrow Holder's estimate of all closing costs, pay-off amounts for the release and reconveyance of all liens secured by the Property and prorations made pursuant to this Agreement. The Developer and the Agency shall assist the Escrow Holder in determining the amount of all prorations. Section 2.22. RESERVED Section 2.23. Breach bv the Developer of Article II Liquidated Damages Payable by the Developer to the Agency. IN THE EVENT THAT THE DEVELOPER COMMITS A MATERIAL BREACH OF ITS OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW OR FAILS TO CLOSE ESCROW, THE DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE DEVELOPER HAVE AGREED THAT SUCH DAMAMGES SHALL BE IN THE AMOUNT OF TEN THOUSAND DOLLARS ($10,000) AS LIQUIDATED DAMAGES SUCH SUM SHALL BE PAID TO THE AGENCY IN THE EVENT OF DEFAULT BY THE DEVELOPER AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE AGENCY'S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE DEVELOPER. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH THE AGENCY WAIVES ANY AND ALL RIGHTS, WHICH THE AGENCY WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. THE AGENCY AND THE DEVELOPER ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS. Initials of the Develop'er's Representative Initials of the Agency's Representative Section 2.24. Representations and Warranties. (a) Warranties and Representations by the Agency. The Agency hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by the Developer made and the acquisition by the Developer of the Property will be made in material reliance by the Developer on such covenants, representations and warranties: (1) Warranties True. Each and every undertaking and obligation of the Agency under this Agreement shall be performed by the Agency timely when due; and that all representations and warranties of the Agency under this Agreement and its exhibits shall be true in all material respects at the Closing as though they were made at the time of Closing. (2) Due Organization. The Agency is a community redevelopment agency, duly formed and operating under the laws of California. The Agency has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby. 16 P:\AgendilS\Agenda Attachments\AgrmtS-Amend 2005\05.08-15 Watson West ridge Final DDA.doc (3) Requisite Action. The Agency has taken all requlSlte action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (4) Enforceability of Agreement. The persons executing any instruments for or on behalf of the Agency have been authorized to act on behalf of the Agency and that this Agreement is valid and enforceable against the Agency in accordance with its terms and each instrument to be executed by the Agency pursuant hereto or in connection therewith will, when executed, be valid and enforceable against the Agency in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by the Agency. (5) Title. Prior to the Closing, the Agency will be the owner of (and the Developer will acquire hereunder) the entire right, title and interest in the Property to effectively vest in the Developer good and marketable fee simple title to the Property, that the Developer will acquire the Property free and clear of all liens, encumbrances, claims, rights, demands, easements, leases or other possessory interests, agreements, covenants, conditions, and restrictions of any kind or character (including, without limiting the generality of the foregoing, liens or claims for taxes, mortgages, conditional sales contracts, or other title retention agreement, deeds of trust, security agreements and pledges and mechanics lien) except: (i)the matters described in Section 2.05, and (ii) the exceptions to title approved by the Buyer pursuant to Section 2.13. (6) No Litigation. There are no pending or, to the best of the Agency's knowledge, threatened claims, actions, allegations or lawsuits of any kind, whether for personal injury, property damage, property taxes or otherwise, that could materially and adversely affect the value or use of the Property or prohibit the sale thereof, nor to the best of the Agency's knowledge, is there any governmental investigation of any type or nature pending or threatened against or relating to the Property or the transactions contemplated hereby. (7) Operation and Condition Pending Closing. Between the date of this Agreement and the Close of Escrow, the Agency will continue to manage, operate and maintain the Property in the same manner as existed prior to the execution of this Agreement. (8) Contracts. There are no contracts or agreements to which the Agency is a party relating to the operation, maintenance, development, improvement or ownership of either of the Property, which will survive the Close of Escrow except as may be set forth in the Agency Grant Deed. (9) Development of Proiect. Although the Agency makes no representation or warranty that the Property is suitable for the development or operation of the Project, the Agency has no present knowledge of any condition of the Property, which would prevent its development in accordance with the Scope of Development. 17 P,\Ac:,,[]d~~\lqendil },ctacr,ments\Agr-mts-Amer,d 2005\05-08-1:' Watson Westridge Final DDA.doc (10) Special Studies Zone. The Property is not located within a designated earthquake fault zone pursuant to California Public Resources Code Section 2621.9 and a designated area that is particularly susceptible to ground shaking, liquefaction, landslides or other ground failure during an earthquake pursuant to California Public Resources Code Section 2694. (II) The Agency's Knowledge. For purposes of this Section 2.24, the terms "to the best of the Agency's knowledge" or "to the Agency's knowledge" shall mean the actual knowledge of the Executive Director. If the Agency becomes aware of any act or circumstance, which would change or render incorrect, in whole or in part, any representation or warranty made by the Agency under this Agreement, whether as of the date given or any time thereafter through the Closing Date and whether or not such representation or warranty was based upon the Agency's knowledge and/or belief as of a certain date, the Agency will give immediate written notice of such changed fact or circumstance to the Developer, but such notice shall not release the Agency of its liabilities or obligations with respect thereto. All representations and warranties contained in this Section 2.24(a) are true and correct on the date hereof and on the Closing Date and the Agency's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Close of Escrow. (b) Warranties and Representations by the Developer. The Developer makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by the Agency made in material reliance by the Agency on such covenants, representations and warranties: (I) The Developer is a duly organized and validly existing California corporation. The Developer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. (2) The Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (3) This Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Agreement shall be, duly executed by and are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. (4) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument or other obligation, to which the Developer is a party, or by which the Developer may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Property. 18 P:V\CJendas\r,genda ';~t"chm"nts\"'grrr,ts-Amend 200~\OS-08-1o, W",son Wf'stridge Final ~}~A.do(; (5) The Developer shall comply with all obligations imposed under State law in connection with the development of the Project in accordance the requirements of any supervisory agency having jurisdiction over the Project. The Developer acknowledges that it is not the responsibility of the Agency to monitor or enforce any such requirements and the Developer agrees to hold harmless from and indemnify the Agency against any liability, cost or claim resulting from the Developer's breach of the requirements of any such supervisory agency, as such requirements may be amended or interpreted from time to time as applicable to the Project. Such obligations to be assumed by the Developer include, but are not limited to, compliance with the mitigation monitoring plan approved by the Agency as part of the environmental review and approval in connection with the approval of this Agreement by the governing body of the Agency. All representations and warranties contained in this Section 2.24(b) are true and correct on the date hereof and on the Closing Date and the Developer's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. SectIOn 2.25. Damage. DestructIon and Condemnation. Prior to the Agency's delivery of possession of the Property to the Developer at the Close of Escrow, the risk of loss or damage to the Property shall remain upon the Agency. If the Property suffers damages as a result of any casualty prior to the Close of Escrow, which may materially diminish its value, then the Agency shall give written notice thereof to the Developer promptly after the occurrence of the casualty. The Developer can elect to either: (i) accept the Property in its damaged condition or (ii) the Developer may ternlinate this Agreement and recover the Deposit as set forth in Section 2.02. The Developer shall confirnl the exercise of its clection under subparagraph (i) or (ii) of the preceding sentence within ninety (90) calendar days of its receipt of notice from the Agency. In the event that, prior to the Close of Escrow, any governmental entity shall commence any actions of eminent domain or similar type proceedings to take any portion of the Property, the Agency shall give prompt written notice thereof to the Developer, and the Developer shall have the option either: (i) to elect not to acquire the Property, terminate this Agreement and recover the Deposit as set forth in Section 2.02; or (ii) the Developer may complete the acquisition of the Property under this Agreement, in which case the Developer shall be entitled to all the proceeds of such taking; provided however, that the Agency agrees that it shall not settle or compromise the proceedings before the Close of Escrow without the Developer's prior written consent, which consent will not be unreasonably withheld or delayed). The Developer shall confirm the exercise of its election under subparagraph (i) or (ii) of the preceding sentence within ninety (90) calendar days of its receipt of notice from the Agency. ARTICLE III DEVELOPMENT OF THE PROJECT Section 3.0 I. Development of the Proiect bv the Developer. (a) Scope of Development; Schedule of Performance. It is the intent of the parties that promptly following the Close of Escrow, the Developer shall commence the first phase of development of the Project on the Property. The Project consists of the elements set forth in the Scope of Development as attached hereto as Exhibit "8". The development of the Project shall occur within the time frame established therefore in the schedule of performance attached as Exhibit "E" (the "Schedule of Performance"). 19 .. lIgendas\Ac;enda At:ac:hrnents\Agrmts-luner.d 2005\05-08-15 Watson Westndge Flna~ DDILdoc (b) The City's zoning ordinance and the City's building requirements will be applicable to the use and development of the Property. The Developer acknowledges that any change in the plans for development of the Property as set forth in the Scope of Development shall be subject to the City's zoning ordinance and building requirements. No action by the Agency or the City with reference to this Agreement or related documents shall be deemed to constitute a waiver of any City requirements, which are applicable to the Property or to the Developer, any successor in interest of the Developer or any successor in interest pertaining to the Property, except by modification or variance approved by the City consistent with this Agreement. (c) The Scope of Development is hereby approved by the Agency upon its execution of this Agreement. The Project shall be developed and completed in conformance with the approved Scope of Development and any and all other plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and between the Developer and the Agency. (d) The approval of the Scope of Development by the Agency hereunder shall not be binding upon the City Councilor the Planning Commission of the City with respect to any approvals of the Project required by such other bodies. If any revisions of the Scope of Development as approved by the Agency shall be required by another government official, agency, department or bureau having jurisdiction over the development of the Property, the Developer and the Agency shall cooperate in efforts to obtain waivers of such revisions, or to obtain approvals of any such revisions, which have been made by the Developer and have thereafter been approved by the Agency. The Agency shall not unreasonably withhold approval of such revisions. (e) Notwithstanding any provision to the contrary in this Agreement, the Developer agrees to accept and comply fully with any and all reasonable conditions of approval applicable to all permits and other governmental actions affecting the development of the Property and consistent with this Agreement. (f) The Developer shall cause landscaping plans in connection with development of the Property to be prepared by a licensed landscape architect. The Developer shall prepare and submit to the City for its approval, preliminary and landscaping plans for the Property, which are consistent with City Code requirements. These plans shall be prepared, submitted and approved within the times respectively established therefore in the Schedule of Performance and shall be consistent with the Scope of Development. (g) The Developer shall prepare and submit development plans, construction drawings and related documents for the development of the Property consistent with the Scope of Development to the City. The development plans, construction drawings and related documents shall be in the form of drawings, plans and specifications. Drawings, plans and specifications are hereby defined as those which contain sufficient detail necessary to obtain a building permit from the City. (h) During the preparation of all drawings and plans in connection with the development of the Property, the Developer shall provide to the Agency regular progress reports to advise the Agency of the status of the preparation by the Developer, and the submission to and review by the City of construction plans and related documents. The Developer shall communicate and consult with the Agency as frequently as is necessary to ensure that any such plans and related documents submitted by the Developer to the City are being processed in a timely fashion. 20 P:\l\gendas\Agenda Attachr.1en:s\Agrmts-Amend 2005\05-08-15 Watson Westridge rir.al DDA.doc (i) The Agency shall have the right of reasonable architectural review and approval of building exteriors and design of the structures to be constructed on the Property to determine if they are consistent with the Required Building Standards. The Agency shall also have the right to review all plans, drawings and related documents pertinent to the development of the Property in order to ensure that they are consistent with this Agreement and with the Scope of Development. If the Agency shall determine that plans, drawings or related document are not consistent with this Agreement and with the Scope of Development, it shall notify the Developer in writing of such determination. The Developer, upon receipt of such notice from the Agency, shall promptly revise the applicable plans, drawings or related documents in a manner that addresses the inconsistency with the Scope of Development and shall resubmit such revised plans, drawings or related documents to the Agency no later than thirty (30) calendar days after its receipt of such notice from the Agency. (j) The Developer shall timely submit to the City for its review and approval any and all plans, drawings and related documents pertinent to the development of the Property, as required by the City. Any failure by the City to approve any of such plans or to issue necessary permits for the development of the Property within thirty (30) calendar days of receipt thereof shall constitute an enforced delay hereunder, and the Schedule of Performance shall be extended by that period of time beyond said thirty (30) calendar day period in which the City approves said plans; provided, however, that in the event that the City disapproves of any of such plans, the Developer shall within thirty (30) calendar days after receipt of such disapproval reasonably revise and resubmit such plans in accordance with the City's requirements and in such form and substance so as to obtain the City's approval thereof. (k) The Agency shall in good faith use its best efforts to cause the City to approve in a timely fashion any and all plans, drawings and documents submitted by the Developer, which are consistent with the Scope of Development and Required Building Standards. (I) If the Developer desires to make any change in the plans, drawings and related documents after their review by the Agency for consistency with the Scope of Development, the Developer shall submit the proposed change in writing to the Agency for its review for consistency with the Scope of Development. The Agency shall notify the Developer in writing of any determination that the change is not consistent with the Scope of Development within thirty (30) calendar days after submission to the Agency. If the Developer desires to make any change in the plans, drawings and related documents after their approval by the City, the Developer shall submit the proposed change to the City for approval. The Agency shall use its best efforts to cause the City to review and approve or disapprove any such change as provided in Section 3.01(b) hereof. (m) The Developer shall have the right during the course of construction to make changes in construction of structures and "minor field changes" without seeking the approval of the Agency; provided, however, that such changes do not affect the type of use to be conducted within all or any portion of a structure. Said "minor field changes" shall be defined as those changes from the approved construction drawings, plans and specifications, which have no substantial effect on the improvements and are made in order to expedite the work of construction in response to field conditions. Nothing contained in this Section shall be deemed to constitute a waiver of or change in the City's Building Code requirements governing such "minor field changes" or in any and all approvals by the City otherwise required for such "minor field changes." (n) The cost of constructing the Project, including all off-site public improvements shall be borne by the Developer. 21 P:\Ager.da,,\Agenda Attachme;lts\Agrmts-Arnend 200~\05-0B-15 Watson Westridge Final DDA.doc (0) The Developer shall at its expense cause to be prepared, and shall pay any and all fees pertaining to the review and approval of the development project approvals by the City, including the cost and preparation of all required construction, planning and other documents reasonably required by governmental bodies pertinent to the development of the Property hereunder including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications and design review documents. (p) The Developer shall pay for any and all costs, including but not limited to the costs of design, construction, relocation and securing of permits for utility improvements and connections, which may be required in developing the Property. The Developer shall obtain any and all necessary approvals prior to the commencement of applicable portions of said construction, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction. (q) All construction and development obligations and responsibilities of the Developer as related to the Project shall be initiated and completed within the times specified in the Schedule of Performance, or within such reasonable extensions of such times as may be granted by the Agency or as otherwise provided for in this Agreement. The Schedule of Performance shall be subject to revision from time to time as mutually agreed upon in writing by and between the Developer and the Agency. Any and all deadlines for performance by the parties shall be extended for any times attributable to delays which are not the fault of the performing party and are caused by the other party, other than periods for review and approval or reasonable disapprovals of plans, drawings and related documents, specifications or applications for permits as provided in this Agreement. (r) During the period of construction of the Project, the Developer shall submit to the Agency written progress reports when and as reasonably requested by the Agency but in no event more frequently than every four (4) weeks. The reports shall be in such form and detail as may reasonably be required by the Agency, and shall include a reasonable number of construction photographs taken since the last such report submitted by the Developer. In addition, the Developer will attend Agency meetings when requested to do so by Agency Staff. (s) Prior to the commencement of any construction, the Developer shall furnish, or shall cause to be furnished, to the Agency duplicate originals or appropriate certificates of public indemnity and liability insurance in the amount of One Million Dollars ($1,000,000.00) combined single limit, naming the Agency and the City and the elected officials, officers, employees, attorneys and agents of each of them as additional insureds. Said insurance shall cover comprehensive general liability including, but not limited to, contractual liability; acts of subcontractors; premises-operations; explosion, collapse and underground hazards, if applicable; broad form property damage, and personal injury including libel, slander and false atTest. In addition, the Developer shall provide to the Agency adequate proof of comprehensive automobile liability insurance covering owned, non-owned and hired vehicles, combined single limit in the amount of One Million Dollars ($1,000,000.00) each occurrence; and proof of workers' compensation insurance. Any and all insurance policies required hereunder shall be obtained from insurance companies admitted in the State of California and rated at least B+: XII in Best's Insurance Guide. All said insurance policies shall provide that they may not be canceled unless the Agency and the City receive written notice of cancellation at least thirty (30) calendar days prior to the effective date of cancellation. Any and all insurance obtained by the Developer hereunder shall be primary to any and all insurance, which the Agency and/or City may otherwise carry, including self insurance, which for all purposes of this Agreement shall be separate and apart from the requirements of this Agreement. Any insurance policies governing the Property as obtained by the Agency shall not be transferred from the Agency to the Developer. Appropriate insurance means those insurance policies approved by Agency Counsel consistent with the foregoing. Any and all insurance required hereunder 22 P:\r,gendas\Agenda At'~achment.s\Agrmts-A::Lend 20C5\CS-08-1S '''",tsan WesU:-idqe rinal DUA.doc shall be maintained and kept in force until the Agency has issued a Certificate of Completion in substantially the form set forth in Exhibit "F" hereof (the "Certificate of Completion") in connection with the development of the Property. The Developer waives subrogation and agrees that the Developer and the Agency are co-insured. The Developer will use its best reasonable efforts to cause each insurance carrier obtained by it to waive any subrogation claim. (t) The Developer for itself and its successors and assigns agrees that in the construction of the Project, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry. Notwithstanding the foregoing, the Developer will use best efforts to offer employment opportunities to local residents and will seek to acquire goods and services from local vendors. (u) The Developer shall carry out its construction of the Project in confonnity with all applicable laws, including all applicable state labor standards, requirements and prevailing wage laws. (v) The Developer shall, at its own expense, secure or shall cause to be secured, any and all permits, which may be required for such construction, development or work by the City or any other governmental agency having jurisdiction thereof. The Agency shall cooperate in good faith with the Developer in the Developer's efforts to obtain from the City or any other appropriate governmental agency any and all such permits and, upon applicable to the development of the Property. (w) Officers, employees, agents or representatives of the Agency shall have the right of reasonable access to the Property, without the payment of charges or fees, during normal construction hours during the period of construction of the Project for the purpose of verifying compliance by the Developer within the terms of this Agreement. Such officers, employees, agents or representatives of the Agency shall be those persons who are so identified by the Executive Director. Any and all officers, employees, agents or representatives of the Agency who enter the Property pursuant hereto shall identify themselves at the job site office upon their entrance on to the Property and shall at all times be accompanied by a representative of the Developer while on the Property; provided, however, that the Developer shall make a representative of the Developer available for this purpose at all times during normal construction hours upon reasonable notice from the Agency. The Agency shall indemnify and hold the Developer harmless from injury, property damage or liability arising out of the exercise by the Agency and/or the City of this right of access, other than injury, property damage or liability relating to the negligence of the Developer or its officers, agents or employees. (x) The Agency shall inspect relevant portions of the construction site prior to issuing any written statements reflecting adversely on the Developer's compliance with the terms and conditions of this Agreement pertaining to development of the Property. Section 3.02. RESERVED Section 3.03. Taxes and Assessments. The Developer shall pay prior to delinquency all real property taxes and assessments assessed and levied on or against the Property subsequent to the Close of Escrow. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax assessment, encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto. 23 P:\Agendas\Agenda At:achments\Agrmts-Amend 2G05\05-08-1:, Watson We~tr~dge Fin,ll D:JA.ctQC Section 3.04. Change in Ownership Management and Control of the Developer-- Assignment and Transfer. (a) As used in this Section 3.04, the term "Transfer" means: (l) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, by the Developer of more than a 49% interest (or series of such sales, assignments and the like, which in the aggregate exceed a disposition of more than a 49% interest) with respect to its interest in this Agreement, the Property, or the Project, or any part thereof or any interest therein or of the improvements constructed thereon, or any contract or agreement to do any of the same; or (2) Any merger, consolidation, sale or lease of all or substantially all of the assets of the Developer (or series of such sales, assignments and the like, which in the aggregate exceeded a disposition of more than a 49% interest). (b) This Agreement is entered into solely for the purpose of the development of the Project on the Property by the Developer in accordance with the terms hereof. The Developer recognizes that the qualifications and identity of the Developer and the Developer's assurances that the Required Building Standards will be utilized in the construction of the Residences are of particular concern to the Agency, in view of: (l) The importance of the development of the Property to the general welfare of the community; and (2) The fact that a Transfer (except as provided in Section 1.04) is for all practical purposes a transfer or disposition of the responsibilities of the Developer, as applicable, with respect to the development of the Project on the Property. The Developer further recognizes and acknowledges that it is because of the qualifications and identity of the Developer that the Agency is entering into this Agreement with the Developer, and, as a consequence, Transfers are permitted only as provided in this Agreement. The Developer shall be entitled to assign its rights and obligations under this Agreement to an Approved Assignee (as described in Section 1.04, above) subject to Watson's continued obligation to review and require compliance of any Approved Assignee with the Required Building Standards as described therein; provided, however, that Watson shall remain obligated to perform all duties imposed upon the Developer under this Agreement until such time as the Certificate of Completion is provided by the Agency to the Developer pursuant to Section 3.07. (c) The limitations on a Transfer as set forth in this Section 3.04 shall apply until such time as a Certificate of Completion is approved by the Agency and filed for recordation as provided in Section 3.07. Except as expressly permitted in this Agreement, the Developer represents and agrees that it has not made nor shall it create or suffer to be made or created, any Transfer, either voluntarily or by operation of law without the prior written approval of the Agency until such time as a Certificate of Completion has been recorded. After the date of recordation of a Certificate of Completion, certain other provisions of this Agreement shall nonetheless be applicable to subsequent conveyances of interest in the Property, or portions thereof, as provided in Article IV of this Agreement. Any Transfer made in contravention of this Section 3.04 shall be voidable at the election of the Agency and shall then be deemed to be a default under this Agreement. 24 P:\!\gendas\Agerlda Att~ac:hments\Agrm~s-Arr,er.ci 200'0\05-08-15 Watson West ridge Flnal DDA.doc (d) The following types of a Transfer shall be permitted and approved by the Agency and are referred to herein as a "Permitted Transfer": (I) The Transfer by the Developer of all its right, title and interest in this Agreement to an entity at least twenty five percent (25%), of which is owned directly or indirectly by the Developer or an affiliate of the Developer and the managing member or manager, of which is the Developer or an affiliate of the Developer; (2) Any Transfer by the Developer creating a "Security Financing Interest" 111 the Property, which conforms to the provisions of Section 3.05; (3) Any Transfer directly resulting from the foreclosure of a Security Financing Interest created by the Developer in the Property or the granting of a deed in lieu of foreclosure of a Security Financing Interest; (4) Any Transfer of stock or equity of the Developer, which does not change management or operational control of the Property or the Project; (5) Any Transfer of any interest in the Developer irrespective of the percentage of ownership to any affiliate of or other entity controlled by the Developer, or in which the Developer directly or indirectly owns a controlling interest; (6) Any Transfer to an Approved Assignee (as described in Section 1.04, above) subject to Watson's continued obligation to review and require compliance of any Approved Assignee with the Required Building Standards as described therein (e) No Permitted Transfer of this Agreement or any interest in the Property or the Project, by the Developer (other than a Pennitted Transfer created pursuant to a Security Financing Interest) shall be effective unless, at the time of the Permitted Transfer, the person or entity, to which such Transfer is made shall expressly assume the obligations of the Developer under this Agreement and such person also agrees to be subject to the conditions and restrictions, to which the Developer is subject under this Agreement. Such an assumption of obligation shall be evidenced by a written instrument delivered to the Agency. (f) Provided the particular transaction satisfies the applicable provisions of Section 3.04(d), the Developer is not required to give the Agency advance notice of such a Permitted Transfer. The Agency may, in its reasonable discretion, approve in writing any other Transfer as requested by the Developer, provided such proposed transferee can demonstrate successful and satisfactory experience in the ownership, operation, and management of an operation similar to the Project. Any such transferee for itself and its successors and assigns, and for the benefit of the Agency shall expressly assume all of the obligations of the Developer to the Agency under this Agreement. There shall be submitted to the Agency for review all instruments and other legal documents proposed to effect any such other Transfer; and the approval or disapproval of the Agency shall be provided to the Developer, in writing within thirty (30) calendar days of receipt by the Agency of the request therefore, and the Agency approval of a transfer and shall not be unreasonably withheld or delayed. (g) Following the issuance of a Certificate of Completion, the Developer shall be released by the Agency from any liability under this Agreement, which may arise from a default of a successor in interest occurring after the date of such a Transfer; provided, however, that the covenants of the Developer as set forth in Article IV of this Agreement shall run with the land for the term as provided in Article IV. 25 P,\Age:lc::as\Jl.genda Attachments\Agrmt>>-Amend 2000\[15-08-15 Watson I'estrldge ,:na1 D;J;\.doc Section 3.05. Securitv Financing; Right of Holders. (a) Notwithstanding any provision of Section 3.04 to the contrary, mortgages, deeds of trust, or any other form of lien required for any reasonable method of financing the construction and improvement of the Property ("Construction Financing") and one or more mortgages, deeds of trust, or other forms of lien required for any reasonable financing that takes out the construction financing (collectively, the "Permanent Financing") is permitted. The Developer shall notify the Agency in writing in advance of any mortgage, deed of trust, or other form of lien for Construction Financing or for Permanent Financing. The Developer shall not enter into any such conveyance for Permanent Financing without the prior written approval of the Agency, which approval the Agency shall grant if any such conveyance is given to a responsible financial or lending institution including, without limitation, banks, savings and loan institutions, insurance companies, real estate investment trusts, pension programs and similar entities and financial institutions. (b) The Developer shall promptly notify the Agency of any mortgage, deed of trust or other refinancing, encumbrance or lien that has been created with respect to the Property whether by voluntary act of the Developer or otherwise; provided, however, that no notice of filing of preliminary notices or mechanic's liens need be given by the Developer to the Agency prior to suit being filed to foreclose such mechanic's lien. (c) include all other development. The words "mortgage" and "deed of trust" as used herein shall be deemed to customary and appropriate modes of financing real estate construction and land (d) The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no manner be obligated by the provisions of this Agreement to construct or complete the improvement of the Property or to guarantee such construction or completion. (e) Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in the completion of construction of the improvements, or any breach or default of any other obligations which, if not cured by the Developer, entitle the Agency to terminate this Agreement or exercise its right to re-enter the Property, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, to commence the cure or remedy of any such default and to diligently and continuously proceed with such cure or remedy, within one hundred twenty (120) calendar days after the receipt of the notice; and to add the cost thereofto the security interest debt and the lien of its security interest. If such default shall be a default, which can only be remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within one hundred twenty (120) calendar days after obtaining possession; provided that in the case of a default, which cannot with diligence be remedied or cured, or the remedy or cure, of which cannot be commenced, within such one hundred twenty (120) calendar day period, such holder shall have such additional time as is reasonably necessary to remedy or cure such default of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) or to operate the Project without first having expressly assumed the Developer's obligations by written agreement satisfactory to the Agency. The holder in that event must submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder that undertakes and completes construction of the 26 P:\Agenda,s\Agenda A~tachnlents\lqnnts-AJr,end 2005\05-08-15 v,',-,tson Westndge Final DDA.doc improvements on the Property in accordance herewith shall be entitled, upon written request made to the Agency, to be issued the Certificate of Completion by the Agency. (f) In any case where, one hundred eighty (180) calendar days after default by the Developer the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon the Property or any portion thereof has not exercised the option to construct the applicable portions of the Project or to operate the Project following completion of construction, or has exercised the option but has not proceeded diligently and continuously with construction or operation of the Project, as the case may be, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the holder by the Developer under the loan documents between holder and the Developer. If the ownership of the Property has vested in the holder, the Agency may at its option (but does not have an obligation to) seek a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (I) The unpaid mortgage, deed of trust or other security interest debt, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the holder by the Developer under the loan documents between the holder and the Developer, at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings). (2) All expenses, if any, incurred by the holder with respect to foreclosure. (3) The net expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Property or the Property, such as insurance premiums and real estate taxes. (4) The cost of any improvements made by such holder. (5) An amount equivalent to the interest that would have accrued on the aggregate on such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. (6) After expiration of the aforesaid one hundred eighty (180) calendar day period, the holder of any mortgage, deed of trust or other security affected by the option created by this Section, may demand, in writing, that the Agency act pursuant to the option granted hereby. If the Agency fails to exercise the right herein granted within sixty (60) calendar days from the date of such written demand, the Agency shall be conclusively deemed to have waived such right of purchase of the or the mortgage, deed of trust or other security interest. (g) In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to the Property (or any portion thereof), where the holder has not exercised its option to complete the development or to operate the Project, the Agency may cure the default but is under no obligation to do so prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be deemed to have a lien of the Agency as may arise under this Section 3.05(g) upon the Property (or any portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds of trust or other 27 P:\Agendas\.ll.genrla Attachmer.t.s\Agrmts-Amend ~oO:,\OS-(JB-1S Watson Westrldge Final DDA.doc security instruments executed by the Developer for the purpose of obtaining the funds to construct and improve the Property or for the purpose of obtaining the Permanent Financing as authorized herein. Section 3.06. Right of the Agencv to Satisfv Other Liens on the Propertv after Convevance of Title. After the conveyance of title to the Property by the Agency to the Developer and after the Developer has had a reasonable time to challenge, cure or satisfy any unauthorized liens or encumbrances on the Property, the Agency shall after one hundred twenty (120) calendar days prior written notice to the Developer have the right to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall requirc the Developer to payor make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Property, or any portion thereof, to forfeiture or sale. Section 3.07. Certificate of Completion. (a) Following the written request therefore by the Developer and the completion of construction of each or any appropriate phase of the Project, excluding any normal and minor building "punch-list" items to be completed by the Developer, the Agency shall furnish the Developer with a Certificate of Completion for the Property in whole or the appropriate phase of the Project in the form set forth in Exhibit "F". (b) The Agency shall not unreasonably withhold the issuance of a Certificate of Completion. A Certificate of Completion shall be, and shall so state, that it is a conclusive determination of satisfactory completion of construction of the applicable phase of the Project. After the recordation of the Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Property shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that such party shall be bound by any covenants contained in the grant deed or other instrument of transfer, which grant deed or other instrument of transfer shall include the provisions of Section 4.01 through 4.04, inclusive, of this Agreement. (c) Any Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of the County where the Property is located. (d) If the Agency refuses or fails to furnish a Certificate of Completion after written request from the Developer, the Agency shall, within fifteen (15) calendar days of the written request or within three (3) business days after the next regular meeting of the Agency, whichever date occurs later, provide to the Developer a written statement setting forth the reasons with respect to the Agency's refusal or failure to furnish a Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to the Developer or other minor building "punch-list" items, the Agency may issue its Certificate of Completion upon the posting of a bond or irrevocable letter of credit, reasonably approved as to form and substance by the Agency Counsel and obtained by the Developer in an amount representing a fair value of the work not yet completed as reasonably determined by the Agency. If the Agency shall have failed to provide such written statement within the foregoing period, the Developer shall be deemed conclusively and without further action of the Agency to have satisfied the requirements of this Agreement with respect to the Property as if a Certificate of Completion had been issued therefore. (e) A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage 28 P:\Aqendas\Agenda Attachments\Agrrr,ts-Amend 2005\nS-Q8-15 \'.',3.\50n West ridge Flnal DDA.doc securing money loaned to finance the improvements described herein, or any part thereof. A Certificate of Completion shall not be deemed to constitute a notice of completion as referred to in Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants or conditions subsequent contained in the Agency Grant Deed attached hereto as Exhibit "D". ARTICLE IV USE OF THE SITE Section 4.01. Uses. (a) The Developer covenants and agrees for itself, its successors, and assigns that upon completion of development of the Project, there shall exist on the Property a residential neighborhood consisting of single family detached homes and more than twenty (20) acres of walking trails, green areas, landscaping and natural undisturbed land. The covenant of this Section 4.01(a) shall run with the land for the terms as set forth in the Agency Grant Deed. (b) The Developer further covenants and agrees for itself, its successors and assigns that the Property shall be improved and developed in accordance with the Scope of Development and the Required Building Standards. The Developer covenants to develop the Property in conformity with all applicable laws. The covenants of this Section 4.0 I (b) shall also run with the land until the date, on which the Certificate of Completion is recorded or the fifth (5th) anniversary date of recordation of the Agency Grant Deed. (c) Excluding any Home Owners Association or other association set up to administer common areas, park or lands dedicated to public use, or a Landscape Maintenance District it is understood and agreed by the Developer that neither the Developer, nor its assigns or successors shall use or otherwise selL transfer, convey, assign, lease, leaseback or hypothecate the Property or any portion thereof to any entity or party, or for any use of the Property, that is partially or wholly exempt from the payment of real property taxes pertinent to the Property, or any portion thereof, or which would cause the exemption of the payment of all or any portion of such real property taxes. The covenant of this Section 4.01(c) shall run with the land for the term as set forth in the Agency Grant Deed. Section 4.02. Maintenance of the Property. The Developer covenants and agrees that prior to retail sale for itself, its successors, and assigns to maintain the Property in a good condition free from any accumulation of debris or waste material, subject to normal construction job-site conditions, and shall maintain in a neat, orderly, healthy and good condition the landscaping required to be planted in accordance with the Scope of Development. In the event the Developer, or its successors or assigns, fails to perform the maintenance as required herein, the Agency shall have the right, but not the obligation, to enter the Property and undertake, such maintenance activities. In such event, the Developer (or such successor as may then own the property) shall reimburse the Agency for all reasonable sums incurred by it for such maintenance activities as set forth in the Agency Grant Deed. The covenant of this Section 4.02 shall run with the land for the term as set forth in the Agency Grant Deed. Section 4.03. Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property; nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of 29 P,\Agenda5\Agenda Attilchments\Aglrr.ts-Amend 20G5\Oc,-08-15 Watson Westridge L.na" eLlA.doc tenants, lessees, subtenants, sublessee or vendees of the Property. The covenant of this Section 4.03 shall run with the land for the term as set forth in the Agency Grant Deed. Section 4.04. Form of Nondiscrimination and Nonsegregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property, or any part thereof, that the Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any part thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining thereto shall contain or be subject to substantially the following nondiscrimination or non segregation clauses: (I) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." (2) In leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sublessee, subtenants, or vendees in the premises herein leased." (3) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the premises herein transferred." The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. The covenant of this Section 4.04 shall run with the land in perpetuity. ARTICLE V DEF AUL TS. REMEDIES AND TERMINATION Section 5.01. Defaults - General. (a) In the event that a breach or default may occur prior to the Close of Escrow, the remedies of the parties shall be as set forth in Article II of this Agreement. 30 P: \Age~,da5\Agenda At tachrnents\Agrmts-Arnend 200S\O~-08-: 5 WiltSQr. v.'estr idge FInal DDA. doc (b) From and after the Close of Escrow and subject to the extensions of time set forth in Section 6.05 hereof, failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if a party otherwise in default commences to cure, correct or remedy such default within thirty (30) calendar days after receipt of written notice specifying such default and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits), such party shall not be deemed to be in default hereunder. (c) The injured party shall give written notice of default to the party in default, specifying the default complained of by the nondefaulting party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (d) Any failure or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings, which it may deem necessary to protect, assert or enforce any such rights or remedies. Section 5.02. Legal Actions. (a) In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, in any other appropriate court in that County, or in the Federal District Court in the Central District of California. (b) of this Agreement. The laws of the State of California shall govern the interpretation and enforcement (c) In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or the Chair of the Agency, or in such other manner as may be provided by law. (d) In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service on Charles Shumaker at the address set forth in Section 1.03(b) (or such other Agent for service of process and at such address as may be specified in written notice to the Agency), or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. Section 5.03. Rights and Remedies are Cumulative. Except with respect to any rights and remedies expressly declared to be exclusive in Article II of this Agreement as relates to a default or breach occurring before the Close of Escrow, the rights and remedies of the parties as set forth in this Article V following the Close of Escrow are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Section 5.04. Damages; Specific Performance. If either party defaults with regard to any provision of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the defaulting party does not diligently commence to cure such default after service of the notice of default and promptly complete the cure of such default within a reasonable time, not to 31 ~:\Aqendas\f,genda Att.ac!-tme"ts\Ag'rmts-A.'uend 2005\05-08-1.5 ",'atson \'.'estridqe Flnal D~A.doc exceed ninety (90) calendar days (or such shorter period as may otherwise be specified in this Agreement for default) after the service of written notice of such a default, then the non-defaulting party shall be entitled to maintain an action for damages or an action for specific performance in addition to such other remedies as it may have at law or in equity; provided, however, that in the event of a breach by the Developer of its obligations under Article II of this Agreement prior to the Close of Escrow, the Agency shall not be entitled to bring an action against the Developer for specific performance and shall be entitled only to the liquidated damages set forth in Section 2.23 hereof. Section 5.05. RESERVED Section 5.06. Agencv Rights of Termination Following Close of Escrow. (a) Unless otherwise permitted pursuant to the terms of this Agreement and subject to written notice of default, which shall spe,ify the Developer's default and the action required to commence cure of same and upon ninety (90) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if the Developer in breach of this Agreement assigns or attempts to assign this Agreement, or any right therein, or attempts to make any total or partial sale, lease or leaseback, transfer or conveyance of the Property other than the sale of lots, on which Residences havc been constructed to purchasers of such Residences or a Builder in violation of the terms of this Agreement, and the Developer does not correct such violation within sixty (60) calendar days from the date of receipt of such notice. (b) Subject to written notice of default, which shall specify the Developer's default and the action required to commence cure of same and upon ninety (90) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if the Developer: (a) does not within the time limits set forth in this Agreement or as specifically provided in the Schedule of Performance, subject to extensions authorized by this Agreement due to force majeure or otherwise, submit development plans, construction drawings and related documents acceptable to the Planning Department and Building Division of the City for plan check purposes and in order to obtain building permits for the Project, together with applicable fees therefore, all prepared to the minimum acceptable standards as required by the Planning Department and Building Division of the City for commencement of formal review of such documents and as required by this Agreement. or (b) does not carry out its other responsibilities under this Agreement or in accordance with any modification or variance, precise plan, design review and other environmental or governmental approvals and such default is not cured or the Developer does not commence and diligently and continuously proceed with such cure within sixty (60) calendar days after the date of receipt of written demand therefore from the Agency. (c) Subject to written notice of default, which shall specify the Developer's default and the action required to commence cure of same and upon ninety (90) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if upon satisfaction of all conditions precedent and concurrent therefore under this Agreement, the Developer does not take title to the Property under tender of conveyance by the Agency, and such breach is not cured within sixty (60) calendar days after the date of receipt by the Developer of written demand therefore from the Agency. 32 F: \.n.gendas\Agenda ;,ttachments\Agrrnts-Amend 2005\05-08-15 ,,'atson Westridge Flnal DDA.doc ARTICLE VI GENERAL PROVISIONS Section 6.01. Notices. Demands and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by any party to another party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the principal office of the Agency and the Developer, as applicable, as designated in Section 1.03(a) and Section 1.03(b) hereof. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, or two (2) business days after it is placed in the United States mail as heretofore provided. (b) In addition to the submission of notices, demands or communications to the parties as set forth above, copies of all notices shall also be delivered by facsimile as follows: to the Developer: Watson-Westridge, LLC Attn.: James R. Watson 101 Main Street, Suite A Seal Beach, California 90740 Telephone: (562) 430-0503 Fax: (562) 493-5860 with copy to: Shumaker Steckbauer Weinhart LLP Attn.: Charles M. Shumaker 333 South Hope Street, 36th Floor Los Angeles, California 90071 Telephone: (213) 229-2868 Fax: (213) 229-2870 the Agency: Redevelopment Agency of the City of San Bernardino Attn.: Gary Van Osdel 20 I North "E" Street, Suite 30 I San Bernardino, California 9240 I Telephone: (909) 663- I 044 Fax: (909) 384-5135 with copies to: Lewis Brisbois Bisgaard & Smith LLP Attn.: Timothy 1. Sabo 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Telephone: (909) 387-1 130 Fax: (909) 387-1138 City Attorney, City Hall Attn.: James F. Penman, Esq. 300 North "0" Street, 6th Floor San Bernardino, California 92418 Telephone: (909) 384-5355 Fax: (909) 384-5278 33 P:\Agendas\Agellda Attachments\-'\qrmts-Amend 200:'\05-08-]5 ~IH~,)D y,'estridge Flnal DDA.doc: Section 6.02. Conflict of Interest. No member, official or employee of the Agency having any conflict of interest, direct or indirect, related to this Agreement and the development of the Property shall participate in any decision relating to this Agreement. The parties represent and warrant that they do not have knowledge of any such conflict of interest. Section 6.03. Warrantv Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not payor give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section, shall not include persons to whom fees are paid for professional services if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by the Developer. Section 6.04. Nonliabilitv of Agencv Officials and Emplovees. No member, official or employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount, which may become due to the Developer or to its silccessor, or on any obligations under the terms of this Agreement, except for gross negligence or willful acts of such member, officer or employee. Section 6.05. Enforced Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to the force majeure including, without limitation, events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather-caused delays, inability to secure necessary labor, materials or tools, delays of any contractors, subcontractor or supplier, which are not attributable to the fault of the party claiming an extension of time to prepare or acts or failure to act of any public or governmental agency or entity. An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the party seeking to invoke such force majeure provision has duly given written notice to the other party within thirty (30) calendar days of the date that the force majeure event has occurred specifying (i) the date, from which, the enforced delay shall commence and the actual or the expected final date, as applicable, for which an enforced delay extension of time of performance is then being sought, and (ii) the detailed description of the particular circumstances, events, facts or occurrences, which have give rise to the force majeure. The inability of the Developer to obtain a satisfactory commitment from a construction lender for the improvement of the Property or to satisfy any other condition of this Agreement relating to the redevelopment of the Property shall not be deemed to be a force majeure event or otherwise provide grounds for the assertion of the existence of a delay under this Section 6.05. The parties hereto expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of any of them, which may have provided a basis for entering into this Agreement, and which occur at any time after the execution of this Agreement, are not force majeure events and do not provide any party with grounds for asserting the existence of a delay in the performance of any covenant or undertaking, which may arise under this Agreement. Each party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such party under this Agreement, but that such inconvenience or hardship is not a force majeure event and does not excuse the performance by such party of its obligations under this Agreement. Section 6.06. Inspection of Books and Records. The Agency shall have the right at all reasonable times at the Agency's cost and expense to inspect the books and records of the Developer pertaining to the Property and/or the development thereof as necessary for the Agency, in its reasonable 34 P:\Agenda5\Agenda At~achments\Agrtr,ts-All1end 200S\05-08-1S Watson Westridge Final DDA.ooc discretion, to enforce its rights under this Agreement; provided, however, the Agency shall not have the right to review the financial records of the Developer. Matters discovered by the Agency shall not be disclosed to third parties unless required by law or unless otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of the Agency hereunder. The Developer shall also have the right at all reasonable times to inspect the books and records of the Agency pertaining to the Property and/or the development thereof as pertinent to the purposes of this Agreement. Section 6.07. Approvals. (a) Approvals required of the Agency or the Developer, or any officers, agents or employees of either the Agency or the Developer, shall not be unreasonably withheld and approval or disapproval shall be given within the time set forth in the Schedule of Performance or, if no time is given, within a reasonable time. (b) The Executive Director of the Agency is authorized to sign on his or her own authority amendments to this Agreement, which are of routine or technical nature, including minor adjustments to the Schedule of Performance. Section 6.08. Real Estate Commissions. The Agency shall not be liable for any other real estate commissions, brokerage fees or finder fees, which may arise from or related to this Agreement. Section 6.09. Indemnification. (a) The Developer agrees to indemnify, defend, and hold harmless the Agency, its board members, officers, directors, employees, agents and attorneys (individually and collectively, the "Agency Indemnities") from and against any and all third party suits, demands, claims, causes of action, losses, liabilities, penalties, charges, costs and expenses, including reasonable investigation costs, attorneys' fees and disbursements, consultants and expert witness fees (collectively, a "Third Party Claim") that may be imposed on, incurred by or asserted against the Agency Indemnities by reason of, on account of or in connection with: (b) Any negligence, willful misconduct or failure to act (when legally or contractually obligated to do so) by the Developer, a Developer Affiliate or their respective agents, contractors or employees; or (c) Any accident, injury, death or damage to any person or property occurring (I) on any portion of the Property owned by or leased to the Developer or a Developer Affiliate, or (2) on the Agency property, on which the Developer or a Developer Affiliate has entered pursuant to rights under this Agreement or under any separate license agreement, to the extent any such accident, injury, death or damage is directly caused by the Developer, a Developer Affiliate or their respective agents, contractors or employees. (d) The Agency agrees to indemnify and hold harmless the Developer and Developer Affiliates (that own or lease a portion of the Property), their respective members, partners, officers, directors, employees, agents and attorneys (individually and collectively, the "Developer Indemnities") from and against any Third Party Claim that may be imposed on, incurred by or asserted against the Developer Indemnities by reason of, on account of or in connection with: (e) Any negligence, willful misconduct or failure to act (when legally or contractually obligated to do so) by the Agency or its agents, contractors or employees; or 35 ,,:\Agendas\Agenda Altd::llments\F,grmts-A.""e~,d 2005\85-08-15 v,'atson WestrH.lge F1Dill DDA.doc (f) Any accident, injury, death or damage to any person or property occurring on any portion of the Property owned by the Agency or leased to the Agency (unless either the Agency owned or the Agency leased property is leased to the Developer or a Developer Affiliate), except to the extent such is directly caused by the Developer, a Developer Affiliate or their agents, contractors or employees as described in subsection (a) above. (g) As used herein, "Indemnitee" shall mean any Developer Indemnitee or any Agency Indemnitee, as the case may be. Notwithstanding anything to the contrary contained in this Agreement, no indemnity obligations under this Agreement shall be owed by the Agency to any Developer Indemnity relative to Third Party Claims resulting from the fraud, criminal behavior, willful misconduct, negligence, breach of duties, covenants or obligations hereunder or by other acts of any Developer Indemnitee except to the extent that negligence may be apportioned between the Agency and the Developer by a judge or jury after trial or binding arbitration. Notwithstanding anything to the contrary contained in this Agreement, no indemnity obligations under this Agreement shall be owed by the Developer to any Agency Indemnitee relative to Third Party Claims resulting from the fraud, criminal behavior, willful misconduct, negligence, breach of duties, covenants or obligations hereunder or by other acts of any Agency Indemnitee except to the extent that negligence may be apportioned between the Agency and the Developer by a judge or jury after trial or binding arbitration. (h) The indemnity and defense obligations undcr this Agreement shall not be affected by the absence or unavailability of insurance covering the same or by failure or refusal by any insurance carrier to perform any obligation on its part under any such policy of insurance. (i) If an Indemnitee is entitled to defense or indemnification under this Agreement (each, an "Indemnification Claim") the Dcveloper or the Agency, as the case may be ("Indemnitor") shall not be obligated to defend, indemnify or hold harmless Indemnitee unless and until Indemnitee provides written notice to Indemnitor promptly after such Indemnitee has actual knowledge of the facts or circumstances of the Third Party Claim, on which such Indemnification Claim is based, describing in reasonable detail such facts and circumstances of the Third Party Claim with respect to such Indemnification Claim and a request for such indemnification (the "Indemnification Claim Notice"). Indemnitee shall not be entitled to indemnification or defense to the extent Indemnitee's failure to notify or delay notifying Indemnitor materially prejudices Indemnitor's ability to defend against any Third Party Claim, on which such Indemnification Claim is based, or materially increases the amount of damages or losses incurred in respect of such indemnification obligation of Indemnitor. (j) Indemnitor shall have the obligation to assume the defense of an Indemnification Claim if Indemnitor's insurance carrier refuses to defend any such claim, and shall use good faith efforts consistent with prudent business judgment to defend such Indemnification Claim, provided that (a) the counsel for Indemnitor who shall conduct the defense of the Indemnification Claim shall be reasonably satisfactory to Indemnitee (unless required by Indemnitor's insurance company), (b) Indemnitee may participate (at Indemnitee's expense) in, but shall not control, the defense of such Indemnification Claim, and (c) without Indemnitee's prior written consent, which consent may be given or withheld in Indemnitor's sole and absolute discretion, Indemnitor shall not enter into any settlement or other agreement, which requires any performance by Indemnitee, other than the payment of money, which shall be paid by Indemnitor. Indemnitee shall cooperate as reasonably requested by Indemnitor in the defense of such Indemnification Claim and shall not take any action that prejudices the defense of such Indemnification Claim. Provided that Indemnitor is in compliance with the provisions of this subsection (vi), Indemnitee shall not enter into any settlement agreement with respect to any Indemnification Claim without Indemnitor's prior written consent, which consent may be given or withheld in Indemnitor's sole and absolute discretion. If Indemnitor does not assume or withdraws from the defense of such Indemnification Claim, Indemnitee shall have the right without waiving any of its Indemnification Claims 36 P: \Agendas\Age~lda Attachmer.ts\Agrmts-Amer.d 2GOS\OS-08-j S v.'at~Qn e,'estr idqe fifHl DDA. dcc hereunder, to control the defense of such Indemnification Claim and shall use good faith efforts consistent with prudent business judgment to defend such Indemnification Claim, and Indemnitor shall pay all reasonable defense costs of Indemnitee, in such instance, within thirty (30) calendar days after receipt of any invoice therefore. (k) The indemnity obligations in this Agreement shall survive the termination of this Agreement but only to the extent based upon events or circumstances occurring between the Effective Date and the termination date. Section 6.10. Release of the Developer from Liability. Notwithstanding any provision herein to the contrary, the Developer shall be relieved of any and all liability for the obligations of the Developer hereunder with regard to the Property and the Project or any appropriate phase thereof), other than any covenants and obligations contained in the grant deed by which the Property is conveyed to the Developer, upon the issuance by the Agency of the Certificate of Completion. Section 6.11. Attorneys' Fees. If either party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, seeks the resolution of disputes pursuant to Section 5.02 hereof, or is made a party to any action or proceeding brought by the Escrow Holder, then as between the Developer and the Agency, the prevailing party shall be entitled to recover as an element of its costs of suit or resolution of disputes pursuant to Section 5.02 hereof, and not as damages, its reasonable attorneys' fees as fixed by the Court or other forum for resolution in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys' fees" for purposes of this Section. Section 6.12. Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. ARTICLE VII ENTIRE AGREEMENT; COUNTERPARTS; NO MERGER WITH GRANT DEED; WAIVERS AND AMENDMENTS Section 7.01. Entire Agreement: Counterparts. (a) This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any portion of the Property and the development thereof. (b) This Agreement shall be executed in four (4) duplicate originals each, of which is deemed to be an original. Section 7.02. No Merger: Waivers and Amendments. (a) None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the grant deed conveying title to the Property, and this Agreement shall continue in full force and effect before and after such conveyance. (b) All waivers of the provisions of this Agreement and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. 37 l'; \Ager.das\Agenda A: :a:::h;ner.~.s\Agrmt5-.'ill,end 2CC:\OS-08-1 5 ..'atso~l 'Nestr ldge FlTLal DDA. dce ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION Section 8.01. Execution and Recordation. (a) Following its execution by the Developer and prompt delivery thereafter to the Agency, this Agreement shall be subject to the review and approval by the governing board of the Agency in its sole and absolute discretion within ninety (90) calendar days after the date of signature by the Developer. In the event that the Agency has not approved, executed and delivered this Agreement to the Developer within the foregoing period, then no provision of this Agreement shall be of any force or effect for any purpose. The date of this Agreement shall be the date when this Agreement shall have been approved by the Agency. (b) The Developer and the Agency agree to permit recordation of this Agreement, or a notice of agreement in customary form, concurrently upon the Close of Escrow in the Office of the County Recorder for San Bernardino County. 38 P,\Agencias\Ager:da A~:dch",ents\l'.grmts-AllLend 20C5\05~~fi-15 ,,'atson Westrldge final DDA.doc IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the dates set forth below. AGENCY Redevelopment Agency of the City of San Bernardino Date: By: Gary Van Osdel, Executive Director APPROVED AS TO FORM: ,j . ~I /Ut /1 /(;(dtiLf? j ( ili//&J- Agency Co~sel DEVELOPER Watson-Westridge, LLC a California limited liability company By: Its: [ALL SIGNATURES MUST BE NOTARIZED] 39 P,\l\gendas\i\gerlda Atta<;:hmenLS\Agrmts-Amend ?GOS\G:,-O!J-1S ~'dtSJJ1 Westri.dqe final DOA.doc lN W1TNESS WHEREOf, the pm1ies hereto have duly executed this Ab'feement as of the datcs sct forth below. AGENCY Redcvelopmcnt Agcncy of the City of San Bcrnardino Datc: By: Gary Van Osdel, Executive Director DEVELOPER W atson- W estridge, LLC a California limitcd liability company By: Its: [ALL SIGNATURES MUST BE NOTARIZED] 39 ~': \Aq<:,nda,; \Agenda 1\: t.a.:cr,mf'nt s\,'.]rTr': s-A.ll~nd JOG':." G'> C'8-]" e.'"t 5C)n W,,~t r i j"e ,,,,,,1 L'DA _ dGCC IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the dates set forth hclow. AGENCY Redevelopment Agency of the City of San Bernardino Date: By:. Gary Van Osdel, Executive Director APPROVED AS TO FO~M: ,(,.. ! ,,/11//"/ .\ ! r2iiLi ;'.f /.' ...... .11 Ag~n~; c~~~s~et if C 1.( it' il C.~. DEVELOPER Watson-Westridge, LLC a Califomia limited liability company By: Its: [ALL SIGNATURES MUST BE NOTARIZED] 39 ?:\,\~",r;ddc.\l,gCr1d" A:~d.~hn,cr.ts\r,qr_.".ts-'.'vr,end 2CG~.\O~-De :s ';.I"',50n vJ"slrldqe F~nill DDA.d,x EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTIES PARCEL 2 APN: 0155-361-25 Lots 5 and 6 and the East L12 of the Northwest 1/4 of Section 19, Township 1 North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, according to the Official Plat of said land on file in the District Land Office. Excepting therefrom that portion conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument No. 81-010575, Official Records. Also excepting therefrom any portion lying within Tract 11857 per plat recorded in Book 185 of Maps, Pages 42 to 49, inclusive, records of said County. Also excepting that portion lying southeast of that property conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument no. 81 -01 0575, Official Records. Also excepting therefrom any portion lying within Sterling Avenue. Also excepting therefrom those portions of Lots 5 and 6 of Section 19, Township 1 North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, According to the Official Plat of said land on file in the District Land Office, more particularly described as follows: Commencing at the northerly centerline intersection of Foothill Drive and Sterling Avenue as shown on Tract Map. No. 11857, recorded in Map Book 185, pages 42 to 49 inclusive, records of said County; thence North 00005'45" West, a distancc of 47.31 fcet; thence North 00004 '33" West, a distance of 111.20 feet to a point on the east boundary line of said Tract Map No. 11857, said point being the Point of Beginning; thence continuing north along said east boundary line, North 00004'33", a distance of 921.65 feet; thence North 13058'00" East, a distance of21 0.75 feet to the bcginning of a tangcnt 1030.00 foot radius curve, concave to.the west; thence northerly along said curve, through a central angle of 07054 '00" a distance of 142.02 feet; thence South 89051 '03" East, a distance of94.95 fcct; thence South 59013'24" East, a distance of295.00 feet; thence South 08016' 49" East, a distance of 50 1.06 feet; - thence South 51013'00" West, a distance of 199.58 feet; thence South 00002'25" West, a distance of357.41 feet; thence South 46031 '49" West, a distance of289.87 feet; thence South 00022'58" West, a distance of 114.73 feet; thence South 39025'02" East, a distance of 59.76 fect; thence South 49041 '34" West, a distance of50.87 fect to a point on the northeasterly Right-of- Way of Foothill Boulevard (40 fcet widc) as shown on said tract Map No. 11857; thence along said northerly Right-of-Way of Foothill Boulevard, North 45002')3" West, a distance 83.10 feet to llP9inU}ll th~~~1e!!Y QQli!lQill}' of Silid Trilct No. 11857, said pojI1.!jJ~il1g -. the beginning ora 230.00 foot radius non-tangent curve, concave to the west, a radial to said point bears South 820 IT 34" East; thence along said easterly boundary of said Tract No.1 1857, northerly, along said curve, through a central angle of 48016'26", a distance of 1 93.78 fcet; thence tangent to said curve, North 40034'00" West, a distance of23.21 feet to the Point of Beginning. Containing 135.60 acrci'more or less. And reserving and excepting therein in favor of the City of San Bernardino and the City of San Bernardino Water Department the following interests as set forth in Lot B below: Lot B Reserving and excepting all rights to use or appropriate water for public or private purposes of any water now or hereafter existing upon or flowing unto, over or across, or contained, and any portion thereof, and the Redevelopment Agency of the City of San Bernardino, and its successors in interest, or any portion thereof, shall not acquire any right, title or interest in or to the waters which shall fall on or flow on, in, over or across lot. EXHIBIT "A-I" REQUIRED BUILDING STANDARDS STREETSCAPE o Mixture of one and two-story homes, with no two identical homes being contiguous o All 2 story homes will have at least 4 or 5 bedrooms o All homes will have at least 2 Y2 baths o All one story homes will have at least 3 or 4 bedrooms o The mixture of one and two story homes will produce multiple floor plans and a variety of elevations o Homes will contain a minimum of2,500 square feet of floor area (excluding garage) o Perimeter walls on homes bordering main public thorough fares o Brick and stone accents on a minimum of 60% of selected elevations o Complete front yard landscaping including automatic sprinklers o Two I %" caliber trees (trees at least I % inches in diameter 6 inches from the base) per home site to be located in the Parkway on lots with 60' frontage or more o Varied front set-backs o All roofs will have vertical and horizontal articulation o Articulation and massing of structures will be balanced throughout the community o Careful attention will be paid to ensure that material changes will only occur at changes in plane o Reverse building plans will be employed o Underground utilities DISTINCTIVE EXTERIOR FEATURES o Fire-resistant concrete tile roofs in multiple styles and colors o Sectional roll-up garage doors consistent with architectural style of home o Garage interior will be finished with dry wall o Multiple panel front entry door with security viewer o Brass front door hardware o Gas stub outlet in backyard for barbecue o Eave-mounted power receptacle o Designer lighting at entry and garage o Garage doors will appear to be set into the walls and will vary with architectural style INTERIOR DETAILING o Rounded drywall corners throughout o Ceramic tile (or better) entries o Plush carpeting throughout living areas, bedrooms, closets, hallways, and dressing areas o Family room with fireplace o Family room media niche o Minimum 9 foot ceilings in entry way and living room. o Decorator-selected light fixtures o Interior raised panel doors o Inside laundry rooms o Decorative framing baseboards where appropriate o Contemporary recessed lights in varying locations o Wiring for cable TV in family room and master bedroom o Interior fire sprinklers o Whisper light switches o Crown molding in family room and/or den o All homes will have intercoms o Pre wired for Security CONTEMPORARY KITCHEN FEATURES o Wood cabinetry with white laminate interiors o Smooth glide adjustable shelves and recessed panel doors o Under- cabinet lighting o Each kitchen will have a breakfast nook o Hand-set 6" tile countertops (or better) with 6" backsplash near cook top o Built-in appliances including: Self-cleaning double-oven Food waste processor Built-in microwave/hood combo Energy-saving multi-cycle Dishwasher o Large walk-in pantry LUXURIOUS MASTER SUITES o Volume ceiling in master bedroom o Cultured marble countertops or better o Lavish master bath with double sinks, separate shower and designer tub o Spacious walk-in closet with shelving o Private water closet SECONDARY BATHROOMS iJ Cultured marble countertops or better o Designer bathroom fixtures iJ Dual sinks (upstairs) with shower areas iJ Private water closet ENERGY-SAVING FEATURES o Central heating and air conditioning iJ Energy-efficient thermostats o Dual-paned, vinyl framed windows with energy efficient Low E glass o Energy-saving weather stripping on all exterior doors iJ Time-controlled thermostat for each home o Pilot-less ignition on all gas appliances OFFERED IN SOME MODELS o Master Suite with fireplace and seating area o Balcony or viewing deck o Executive Retreat o Private Guest Suite EXHIBIT "B" DESCRIPTION OF PROJECT AND SCOPE OF DEVELOPMENT The Project consists of a phased residential development with approximately 75 detached single- family homes, each with a minimum lot size of 10,800 square feet. The development will also include a park, more than a mile of trails and natural areas. Initially, the entire Project site will be graded and drainage systems (as appropriate to the development strategy) will be established. Thereafter, homes will be constructed in groups of 5 to 50 homes until the Project is completed. EXHIBIT "c" FORM OF TENTATIVE TRACT MAP LETTER August ,2005 Ms. Valerie Ross, Deputy Director/CityPlanncr Development Services Department City of San Bernardino 300 North "D" Street San Bernardino, California 92418 RE: WATSON-WESTRIDGE TENTATIVE TRACT MAP NUMBER Dear Ms. Ross: On , 2005 after a public hearing, the Mayor and Common Council of the City of San Bemardino approved Tentative Tract Map Number ~_.____~._ _.. at its regularly scheduled and duly noticed meeting as set forth in Resolution Number ~_' Watson-Westridge, LLC, a Califomia limited liability company, hereby acknowledges, accepts and consents to the approval of Tentative Tract Map Number (including all conditions of approval) by the Mayor and Common Council of the City of San Bernardino as set forth in Resolution Number Very truly yours, Watson-Westriclge, LLC EXHIBIT "0" AGENCY GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: W atson- Westridge, LLC c/o l.R. Watson & Associates 101 Main Street, Suite A Seal Beach, California 90740 GRANT DEED II Space above this line for Recorder's Use THE UNDERSIGNED GRANTOR DECLARES: Documentary Transfer Tax is: o unincorporated area J:;l City of San Bernardino Assessor's Parcel No. 0155-361-25. 0155-381-11 and 45 o computed on full value of interest or property conveyed, or o computed on full value ofliens or encumbrances remaining at time of sale; FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic ("Grantor"), hereby GRANTS to WATSON-WESTRIDGE, LLC, a California limited liability company ("Grantee"), the following described real property (the "Property") in the City of San Bernardino, County of San Bernardino, State of California: See Attached Exhibit "A". SUBJECT TO: 1. Nondelinquent general, special and supplemental real property taxes and assessments which are a lien not yet payable. 2. Covenants, conditions, restrictions, easements, reservations, rights, rights-of-way and other matters ofrecord or discoverable by inspection or survey. 3. The following covenants, conditions and restrictions: 3.1. Covenants Appurtenant. Grantee, by acceptance and recordation of this Grant Deed, expressly accepts, covenants and agrees, on behalf of itself, its lessees, mortgagees, successors and assigns, to be bound by, and to assume performance of, all of the provisions and requirements set forth in this Grant Deed to be performed by Grantee, all of which provisions and requirements are acknowledged to be reasonable. Every person or entity which now or hereafter acquires any right, title, estate or interest in the Property shall be conclusively deemed to have consented and agreed to every covenant, condition and restriction contained herein to be performed by Grantee, whether or not reference to these restrictions is contained in the instrument by which such person or entity acquired an interest in the Property. All such covenants, conditions and restrictions shall run with the Property; shall be binding upon and inure to the benefit of Grantor, Grantee and any person or entity having or acquiring any interest in any portion of the Property; shall be binding upon and inure to the benefit of the Property and, any portion thereof or interest therein. 4828-2466.3296.1 I P \Agendas\Agcnda Anachmem5\bhibils\2005\05-08-15 Watson Grall! Deed (Exhibit D).doc 3.2. Use of Property. The Grantee herein covenants and agrees for itself, its successors and assigns that upon completion of construction, the Grantee shall cause to be opened on the Property structures suitable for single-family residential homes. 3.3. Scope of Development. The Grantee herein covenants and agrees for itself, its successors and assigns that the Property shall be improved and developed in accordance with the Scope of Development as set forth in that certain Disposition and Development Agreement by and between the Grantor and Grantee dated August 15,2005, (the "Agreement"). The covenant set forth in this section 3.3 shall run with the land until the earlier to occur of (i) the recordation of a Certificate of Completion (as defined in the Agreement) or, (ii) the fifth (5th) anniversary of the recordation of this Grant Deed. 3.4. Mortgagees. A breach of any of the covenants, conditions or restrictions herein shall not defeat nor render invalid the lien or charge of any mortgage or deed of trust made in good faith and for value covering the Property or any part thereof; however, such covenants, conditions and restrictions shall be binding upon and effective against any new owner of the Property, or any portion thereof, whose title thereto is acquired by foreclosure, trustee's sale or otherwise. No mortgagee shall be subject to any reimbursement obligation, which accrues prior to the date such mortgagee takes title to the property. 3.5. Nondiscrimination. The Grantee herein covenants by and for itself, its successors and assign, and all person claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the Grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation withy reference to the selection, location, number, use or occupancy of tenant lessees, subtenants, sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land. 3.6 Form of Nondiscrimination and Nonsegregation Clauses. The Grantee covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property, or any part thereof, that the Grantee, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any part thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining thereto shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (1) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." 4828-2466-3296.1 p IAgendas\Agcnda AUacnmems\Exhibits\2005\05_08_15 Watson Grant Deed (Exhibit OJ doc 2 (2) In leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sublessee, subtenants, or vendees in the premises herein leased." (3) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the premises herein transferred." The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. The covenant of this Section 3.6 shall run with the land in perpetuity. 3.7. Maintenance. The Grantee herein covenants and agrees for itself, its successors, and assigns to maintain the Property in a good condition free from any accumulation of debris or waste material, subject to normal construction job-site conditions, and shall maintain in a neat, orderly, healthy and good condition the landscaping required to be planted. In the event the Grantee or its successors or assigns, fails to perform the maintenance as required herein, the Grantor shall have the right, but not the obligation, to enter the Property and undertake such maintenance activities. In such event, Grantee shall reimburse the Grantor for all reasonable sums incurred by it for such maintenance activities. Notwithstanding the foregoing, Grantee, its successors and assigns shall have no maintenance obligation as described herein with respect to the Property or any portion thereof that shall be incorporated into a Landscape Maintenance Assessment District from and after the date of formation of and/or date the Property or relevant portions thereof becomes subject to such Landscape Maintenance Assessment District. 3.8 Property Taxes. The Grantee covenants and agrees for itself, its successors, and assigns that neither the Grantee nor its successors and assigns shall use or otherwise sell, transfer, convey, assign, lease, leaseback, or hypothecate the Property or any portion thereof to any entity or party, or for any use of the Property, that is partially or wholly exempt from the payment of real property taxes pertinent to the Property, or any portion thereof, or which could cause the exemption of the payment of all or any portion of such real property taxes. 3.9. Severability. Invalidation of any provision contained herein by judgment of court or otherwise shall in no way affect any of the other provisions, which shall remain in full force and effect. 4828-2466-3296.1 P \Agendas\Agenda Anachmenls\E\hibiIS\2005\05-08-15 Watson Gran! Deed (E,hib,( OJ doc 3 ENFORCEMENT Grantor shall have the right to enforce the covenants, conditions and restrictions contained in this Grant Deed notwithstanding any transfer of the Property or any portion thereof. Grantor has caused this Grant Deed to be duly executed on ,2005. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic GRANTOR: By: Judith Valles, Chairperson Community Development Commission of the City of San Bernardino, its governing body By: (NOTARY ACKNOWLEDGEMENT) Gary Van Osdel, Executive Director 4828-2466-3296.1 P\Ag~ndas\.Agenda Allachmenls\E~hib;IS\2005\05_08_15 Watson Gram Deed (ExhIbit D) doc 4 Exhibit "A" Legal Description PARCEL 2 APN: 0155-361-25 Lots 5 and 6 and the East 1/2 of the Northwest 1/4 of Section 19, Township 1 North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, according to the Official Plat of said land on file in the District Land Office. Excepting therefrom that portion conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument No. 81-010575, Official Records. Also excepting therefrom any portion lying within Tract 11857 per plat recorded in Book 185 of Maps, Pages 42 to 49, inclusive, records of said County. Also excepting that portion lying southeast of that property conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument no. 81-0 I 0575, Official Records. Also excepting therefrom any portion lying within Sterling A venue. Also excepting therefrom those portions of Lots 5 and 6 of Section 19, Township I North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, According to the Official Plat of said land on file in the District Land Office, more particularly described as follows: Commencing at the northerly centerline intersection of Foothill Drive and Sterling Avenue as shown on Tract Map. No. 11857, recorded ittMap Book 185, pages 42 to 49 inclusive, records of said County; thence North 00005'45" West, a distance of 47.31 feet; thence North 00004'33" West, a distance of 111.20 feet to a point on the east boundary line of said Tract Map No. 11857, said point being the Point of Beginning; thence continuing north along said east boundary line, North 00004'33", a distance of 921.65 feet; thence North 13058'00" East, a distance of21 0.75 feet to the beginning of a tangent 1030.00 foot radius curve, eoncave to .the west; thence nortJlerly along said curve, through a central angle of Or54 '00" a distance of 142.02 feet; thence South 89051 '03" East, a distance of94.95 feet; thence South 59013 '24" East, a distance of 295.00 feet; thence South 08016'49" East, a distance of 501.06 feet; thence South 51013 '00" West, a distanee of 199.58 feet; thence South 00002'25" West, a distance of 357.41 feet; thence South 46031 '49" West, a distance of289.87 feet; thence South 00022'58" West, a distance of 114.73 feet; thence South 39025'02" East, a distance of 59.76 feet; thence South 49041 '34" West, a distance of 50.87 feet to a point on the northeasterly Right-of- Way of Foothill Boulevard (40 feet wide) as shown on said tract Map No. 11857; thence along said northerly Right-of-Way of Foothill Boulevard, North 45002'33" West, a distance 83.10 feet to a point OIl the easterly boundary of said Tract No. 11857, said poirlt beil1g the beginning of a 230.00 foot radius non-tangent curve, concave to the west, a radial to said point bears South 820 IT 34" East; thence along said easterly boundary of said Tract No. 11857, northerly, along said curve, through a central angle of 48016'26", a distance of 193.78 feet; thence tangent to said curve, North 40034'00" West, a distance of23.21 feet to the Point of Beginning. Containing 135.60 acreS-more or less. And reserving and excepting therein in favor of the City of San Bernardino and the City of San Bernardino Water Department the following interests as set forth in Lot B below: LotS Reserving and excepting all rights to usc or appropriate water for public or private purposes of any water now or hereafter existing upon or flowing unto, over or across, or contained in Lot A, and any portion thereof, and the Redevelopmcnt Agency of the City of San Bernardino, and its successors in interest to Lot A, or any portion thereof, shall not acquire any right, title or intercst in or to the watcrs which shall fall on or flow on, in, over or across lot. APN: 0155-381-11 and 45 PARCEL NO. L I POATION or LOT 5, 1.5 PER KAt' OF SUBDIVISIONS Of FRACTIONAL SOUT~EST 1/4 OF SECTION 19, TOWNSHIP 1 NORTH, RANGE 3 WEST, SAN BERNARDINO BASE AND KERIOIAN. KNOWN 1.5 ZIHlaRMN SUBDIVIS ION , IN TaE COUNTY OF SAN B~RNARDINO, STAT! or CALIFORNIA, AS PER PLAT RI:CORDI:D IN BOOII: 8 OF !tA.PS, t'AGIl 80, RECORDS OF SArD COUNTY, DESCRIBED AS FOLLOWS. CO!l/!ENCIHG AT A POINT NORTH 45 DIm. WEST 135 PEE:T ,ROM THE SOUTHEAST CORNIlR OF LOT 5, 01' SAID SUBDIVISION, THI:NCE NORTH 45 O~G. WEST ALO!IG THIl NORTHERLY LIlIIl 01' THE IlU5CUPlABE RANCHO 225 FEETl THENCIl NOR'l'H 71 DEG. EAST, 165 FEET, THENCE SOUTH 56 OEG. t:AST, 50 l!ETI THElICE NORTH 36 DEG. 30' EAST, 1:10.12 FeET I THENCB SOU'l'll 13 DIlG. 36' EAST, 55.10 FEST, THIlNCE SO'JTK 36 DEG. 43' W~ST. 331 F8ET TO THIl POINT OF BEGINNING. EXCEPTING THERZFROK ANT PORTION THAT KIGHT BIl INCLUDED IN PROfllRTY GRAN'l'IlD A. E. STERLING TRUSTEE, BY D~ED RECORDED JANUARY 13, 189B. tN BOOlC 248. PAGE 124, OF DEEDS, DESCRIBED Al POLLOWS. BtING A STRIP OF LAND Olflf THE SOU'l'HEAST CORNER 01" LOT 5. ACCORDING TO A !lAP 01" A SUBDIVISION OF TN! tRACTIONJ,!, SOUTHWEST 1/ 4 01" SECTIOIf a, TOWNlllIIP 1 I/ORTH, RANGE 3 WEST, SAN BERNARDINO BAS~ AND MERIDIAN. IN THE COUNTY 01" SAN BI:RNARDIlIO, STATE or CAI.lrORNIA. AS PER SURVEY MAIlS BY J. M. PARSONS. JANUARY 16, 1892, SAID !lAP BEING RECORDED III Boo~ 8 OF MAPS, PAGE 80 AND MORE FARTICULARLY DESCRIBED AS r~owsl COlU!8NCIlIG AT THE INTERSECTION OF TIm 1:...51' LINE 01' SAID LOT 5 WI'I'I{ THIl NORTH 1.10 or THIl RANCHO MUSCUPIABE, TIlENCE ALONG SAID RANCHO LINll 135 pEn, THIlNCIl NORTlmRLY 331 FEET TO TrlE DITCH 01' TH! BEAR VALLaT IRRIGATION COKPANY, THENCE ALONG SAID DITCH 36 FEET TO TH! EAST t.INIl OP SAID LOT 5, '1'1lIlNCl! BOU'I'KERLY .380 FEET 'l'O Pt.ACl! or BEGINNING. AI.SO EXCEPTING =ru:l'ROIl AN UllDIVIDED 28/3 O'I'HS IN'l'ER!B'.i~ III AND TO T!lAT POlt'UON (CALLED 1IIlt.I. BIT!!) Olf LOT 5 OF TH.'.T CERTAIN SUBDIVISIOH KNOll)( AS ZI)OIEIUIAN SUBDIVISION, 1.5 PER PLJ,T RECORDEO IN BOOII: 801f /!.U'S. PAGE 80, MCOReS OF SAID COUNTY OtS(RIBED AS. COIUlENCING AT 'I'Hl! NOR'l'HIIl!S'l' CORmR 0," LOT 4, BLOClt I". 01" WEST HIGlU.ANDS, AS PER PLAT RECORDED IN BOO" 5 01' IUrs. PAOE 17. RECORDS OF SAID COOHTT. SAID POINT BIlING IN THE KUSCUPIABE RANCHO LIIllIi, THENCE ALONG SAID RANCHO LIllI NOftTl! 45 DBG. 00' WEST, 221.12 FEET I THIlNell NORTl! 40 DEG. 2S' BAST TO orra NORT:nRLY LINE OF FOOTHILL DRIV!! 1.5 1/011 IoOCATED. 40 PI!:E"1' WIDII, FOR THE TRU! POINT OF BEGINNING, SAID TRUE POINT 01" BEGINNING BUNG IN TIlE tABor LIHB or A PARCIIL 01' LAIlll COllVl!:YED TO BODIIl IfIT~ AND IlIPE, REcolIOED FEBP-UUT 20. 1945. IX BOOIt IBSS. PAGE 281, OPPICIAL RECORDS, THENC! NOft'1'll 40 DIlG. 25' EAST. 40 reST, THEIIC11: SOUTIl 45 DBG. 00' EAST 25 1f!.ITI TNllllca SOllTH 40 DEG. 25' WHST. ',0 FSJ;'I' TO THE NOR'I'HBlILY' LIHB Olf FOOTHIt.L ORlve, TIlJ!NC! NORTH 45 [lEG. WEST, 2S FEET TO THE TRUE POINT OP BEGINNING. ~ + .' y PARCEL NO. 2 I At.!. OF LOT 5, OF SUBDIVISrON OF THE FRACTIONAL SOUTHWES'l' 1/4 OE' SEC'l'ION 19, TOWNSHIP 1 NORtH, RANGB J WBST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COl1N't'Y OP SAN BI!RNAIUHNO, STATE OF CALIFORNIA, AS PER PLAT RI!COllDED IN BOO'; 9 01." IlAPS, PAGE ao, RECORDS or SAID COUNTY. EXCEPTING THEReFROM THAT PORTION TaEREOI." DESCRIBED AS FOLLOWS. COH.lreIlCIlIG AT TIn: HOST SOtlTHERLY CORl/ER OF SAID LOT, I/llERE TilE CAS'l'IRLY LINI OP SAID toT rN'URS!CTS WITII THIl Il0R':.~I!:AST!RLY LIIIE OF llUSCtlPXA8It 1WIC1l01 TlUllCI NORTH 45 DEG. WI~ST ALOllG THE NORTHEASTIlRLY LINE or SAID RANCHO. J60 FEETI THENell: NORTH 71 DEC;. EAST, 165 FllI!TI THEIlC! SOUTH 55 OEG. EAST 50 PEE~, THENCE NORTI! 36 OEG. 30' EAST, 130.12 FEET, THENCE SOU'l'll 73 flEG. 36' EAST, eS.70 FEET TO A POINT ON THIl: OITeR, JClIOllN AS BE"" VALLEY DITCH; THEIlCI!: EAS'1'!RLY ALOllO SAIC DI'l'CH, 35 PUT TO THI!: EII,STERLY LINE OF' SAID LO't' 5 I TKl3IlC:Z SOUTlfERLY 3ao FEE'!' ALONG 'l'M EI,STERLY LINE OF SAID LOT 5 TO THE POINT OF e~GINllIHG. ~so EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS. BEGIlI!IING AT A POUlT IN THS NORTKV!:S'rERLY LIN~ olr SAID LOT 5. OISTANT SOUTI!Il2S'l'IlRLY ALONG SAID IlDR'l'!I\'!:STIRLY LINt:, 260.00 FEET FaOK TH!: NORTlIWEST COIUfIR or SAID LOTI THEIlC. SOtJ'IH 55 DBG. 2Z' OO'EAST, ALONG ~ LIKI THAT IS KllASURID A'1: RIGIl'1' ANGUS TO THAT CERTAIN COURSE HAVING A S!:ARIlIG or NOII'l'J{ 23 DEG. 39' 00. EAST, AND A DISTAllCE or 250.87 PI!:ET, AS DBSCIltBIlC IN DOCt'H!:ll'I' RECORDED IN BOOX 1369, PAG!! 274, OPFICIAL RECORDS OF SAID COllN'n', A DISTANCE 0' 528 FElT, HORl OR LIlS!. TO THB POINT or TERHINATION IN THE EASTERLY LIN! or SAID LOT 5. + ACCEPTANCE OF GRANT DEED BY W A TSON- WESTRIDGE, LLC The undersigned, on behalf of Watson-Westridge, LLC hereby acknowledges the delivery of the subject property from the Redevelopment Agency of the City of San Bernardino. WATSON-WESTRIDGE, LLC, a California limited liability company Date: By: Its: (NOTARY ACKNOWLEDGEMENT) 4828-2466-3296] 5 P \Agendas\Agenda AuachrYlC'nls\Exh,b'IS\2ClO5\05_08.15 Watson Gram Deed (Exhibit D) doc EXHIBIT "E" SCHEDULE OF PERFORMANCE (Days shall be calendar days, and all dates herein are subject to change due to foree majeure in accordance with Section 7.05 of the Agreement) Agency approval of DDA - August 15, 2005 The Developer shall commence the following after receipt of the relevant governmental approvals and permits: (a) Mass grade the entire Property area (as appropriate) within ninety (90) days after approval of the DDA. (b) The offsite water shall commence within ninety (90) days after grading starts. (c) Storm drain improvements will commence upon completion of the grading. (d) In-tract sewer and water installation will commence upon the completion of the storm drain. The development of in-tract sewer and water will be based upon construction phasing, to be determined, based upon market conditions. (e) Street improvements will commence upon completion of the in-tract sewer and water. The development of street improvements will be based upon construction phasing, to be determined, based upon market conditions. (I) Landscaping and fuel modification zones will commence upon completion of the street improvements. (g) Installation of dry utilities, as appropriate, for the development plan. (h) Develop residences in an orderly fashion based on prevailing market conditions. It is intended that 5 to 50 residences will be developed initially. (i) Complete Project within four (4) years (August 15, 2009) of the approved DDA and market conditions. EXHIBIT "F" FORM OF CERTIFICA TE OF COMPLETION We, , the Executive Director and the Assistant Secretary of the Redevelopment Agency of the City of San Bernardino (the "Agency") hereby certify as follows: Section I. The improvements required to be constructed in accordance with that certain Disposition and Development Agreement (the "Agreement") dated , by and between the Agency and Jr. Watson-Westridge, LLC, a California limited liability company or its Approved Assignee as defined in the Agreement (the "Developer") on that certain real property more fully described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"), have been completed in accordance with the provisions of said Agreement. Section 2. This Certificate of Completion shall constitute a conclusive determination of satisfaction of the agreements and covenants contained in the Agreement with respect to the obligations of the Developer, and its successors and assigns, to construct and develop the improvements on the Property (or the phase described as follows: ), excluding any normal and customary tenant improvements and minor building "punch-list" items, and including any and all buildings and any and all parking, landscaping and related improvements necessary to support, or which meet the requirements applicable to the buildings and their use and occupancy on the Property, all as described in the Agreement, and to otherwise comply with the Developer's obligations under the Agreement with respect to the Property and the dates for the beginning and completion of construction of improvements thereon under the Agreement; provided, however, that the Agency may enforce any covenant surviving this Certificate of Completion in accordance with the terms and conditions of the Agreement and the grant deed pursuant to which the property containing the Property was conveyed under the Agreement. Said Agreement is an official record of the Agency and a copy of said Agreement may be inspected in the office of the Secretary of the Redevelopment Agency of the City of San Bernardino located at 20 I North "E" Street, Suite 30 I, San Bernardino, California, during regular business hours. DA TED AND ISSUED this _ day of ,200_. Executive Director ATTEST: Assistant Secretary ATTACHMENT II PURCHASE AND SALE AGREEMENT (Property Located on Foothill Drive, east of Sterling Avenue) THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into as of the 15th day of August 2005, by and between the Redevelopment Agency of the City of San Bernardino ("Buyer"), and the City of San Bernardino ("Seller"). RECITALS (A) The Buyer is a public body corporate and politic organized and validly existing under the laws of the State of California (the "State"). and the Seller is a municipal corporation organized and validly existing under the Constitution of the State. (B) Seller owns certain real property located in the City of San Bernardino, County of San Bernardino more particularly described in Exhibit "A" attached hereto (the "Property"). (C) Buyer intends to enter into a certain 2005 Disposition and Development Agreement, whereby Buyer will convey the Property to J. R. Watson and Associates Development Co., a California corporation (the "Developer"). The Developer intends to develop the Property in phases as provided in the Disposition and Development Agreement. The Buyer and Seller wish to provide for a conveyance ofthe Property from the Seller to the Buyer in order that the Buyer may convey the Property to the Developer pursuant to the Disposition and Development Agreement. (D) The Seller and Buyer have duly approved the transactions contemplated by this Agreement through their respective governing bodies and in order to set forth the terms and conditions of such purchase and sale, the Buyer and Seller desire to enter into this Agreement. NOW, THEREFORE, for and in consideration of the foregoing Recitals and the mutual agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I PURCHASE AND SALE Section 1.01. Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller hereby agrecs to sell, transfer, and convey to the Buyer, and the Buyer hereby agrees to purchase from Seller, all of Seller's right, title, and interest in and to the Property, excluding water rights. Section 1.02. Purchase Price. The purchase price for the Property shall be Seven Hundred Seventy Six Thousand Dollars ($776,000) (the "Purchase Price"). An MAl appraisal of the Property has been conducted by Smothers Appraisal (the "Appraiser"). According to the report prepared by the Appraiser, the fair market value of the Property is Seven Hundred Seventy Six Thousand Dollars ($776,000). The Disposition and Development Agreement provides that the 485] -0059-4688 ] P IAgendas\Agenda AlIachmenls\ExhibiIS\2005\05_08_IS Watson Purchase and Sale Agmu (City lO Agency-AllJchmemll) doc Developer shall pay the Purchase Price at the close of Escrow (as this term is defined in Section 3.01 hereof). All amounts received by the Buyer from the Developer under the Disposition and Development Agreement for payment of all or any portion of the purchase price thereunder shall, in turn, be paid by the Buyer to the Seller hereunder. The Seller hereunder shall be considered a third party beneficiary of the Buyer's rights under the Disposition and Development Agreement. Section 1.03. Cash at Closing. The Purchase Price shall be paid to Seller in cash at Closing (as defined in Section 3.01 hereof). ARTICLE II TITLE INSURANCE Section 2.01. Seller's Obligation to Provide Title Insurance. Seller shall deliver to the Buyer, within ten (10) days after the execution and delivery of this Agreement by both parties (the "Effective Date"), a preliminary title report for an owner's title policy issued by LandAmerica Title Company (the "Title Company") together with legible copies of all restrictive covenants, easements and other items listed as title exceptions therein (each a "Title Defect"). The title policy to be issued to the Buyer pursuant to this section shall ensure fee simple title to the Buyer in the amount of the Purchase Price, as adjusted pursuant hereto, subject only to the exceptions shown therein to which the Buyer has agreed in writing. The Buyer shall have five (5) days after its receipt of the preliminary title report within which to disapprove any Title Defects shown therein, such approval or disapproval to be within the Buyer's reasonable discretion. If the Buyer fails to disapprove any particular Title Defect by written notice delivered to and received by Seller within such time period, then the Buyer shall be deemed to have approved such title Defect. If the Buyer disapproves any such Title Defect by written notice delivered to and received by Seller within such time period, then the Buyer may terminate this Agreement unless Seller (without any obligation to do so) cures the Buyer's objection to such Title Defect. In such event Seller shall have the option to either (a) extend the Closing by that period of time which is reasonably required by Seller to satisfy the title requirement or to cure the Title Defect, or (b) terminate this Agreement by written notice to the Buyer in accordance with the notice provisions of this Agreement. ARTICLE III CLOSING Section 3.01. Closing Through Escrow. Subject to the provisions ofthis Agreement, the Buyer and Seller shall consummate and close the purchase and sale of the Property contemplated by this Agreement when all of the conditions of closing for the benefit of the parties hereto have been satisfied or waived, and when and if all conditions precedent to the close of escrow under the Disposition and Development Agreement have been satisfied, but in no event later than twenty (20) days after Buyer has received a Due Diligence Certificate (as that term is defined in the Disposition and Development Agreement) from the Developer (the "Closing"). Subject to the provisions of this Agreement relating to the extension of the Closing, if the Closing does not occur as a result of the failure ofa condition, then the party hereto for whose benefit the condition exists may terminate this Agreement, in which event the parties hereto shall have no further rights or obligations pursuant to this Agreement. 4851-0059-4688.1 2 PlAgend.1s\Agenda Allachmems\Exnibils\2005\05-08-15 Watson Purchase and Sale Agmu (Cily to Agc:ncy.AttachmenIH) doc The transfer and sale of the Property shall take place through an escrow (the "Escrow") to be administered by Lawyers Title or such other escrow or title insurance company mutually agreed upon by the Buyer and the Seller (the "Escrow Agent"). The Escrow shall be deemed open upon the receipt by the Escrow Agent of a fully executed copy ofthis Agreement. The Escrow Agent shall promptly confirm to the parties the escrow number and the title insurance order number assigned to the Escrow. The Buyer and the Seller each agree to execute the customary supplemental instructions in the form provided by the Escrow Agent to its clients in real property escrow transactions administered by it. Section 3.02. Seller's Obligations at Closing. At Closing, Seller shall deliver to the Escrow Agent the following documents (all duly executed and acknowledged by Seller, where required): a. Deed. A grant deed in substantially the form attached to this Agreement as Exhibit "B", executed by Seller and conveying the Property to the Buyer, subject to no exceptions other than those agreed to by the Buyer. b. Title Policv. A commitment by the Title Company to issue an owner's title policy in CL T A standard form, naming the Buyer as the insured in the amount of the Purchase Price, insuring that the Buyer owns fee simple title to the Property, subject only to such exceptions as are agreed to by the Buyer Section 3.03. Buver's Obligation at Closing. At Closing, the Buyer shall deliver to the Seller the Purchase Price in cash or by wire transfer of readily available U.S. funds. Section 3.04. Closing Costs. Seller shall pay all closing costs. 485\-0059-4688\ 3 PlAgendas\Agenda Anachmenls\Exh,bils\2005\05.08-15 Watson Purchase and Sale Agnnt (CIty to Agency-Allachmenlll) doc IN WITNESS WHEREOF, the parties hereto have executed this Purchase and Sale Agreement as of the date first above written. "BUYER" Redevelopment Agency of the City of San Bernardino Date: By: Judith Valles, Chairperson Community Development Commission of the City of San Bernardino "SELLER" City of San Bernardino Date: By: Judith Valles, Mayor 4851-0059-46881 4 P IAgendaslAgenda AllachmeI\15\E~hibil~\2005\05-08-15 Walson Purchase and Sale Agmtt (Cily (0 Agency.Auachmenlll) doc EXHIBIT "A" Legal Description of Property 485\-0059-4688.\ 5 PARCEL 2 APN: 0155-361-25 Lots 5 and 6 and the East 1/2 of the Northwest 1/4 of Section 19, Township I North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, according to the Official Plat of said land on file in the District Land Office. Excepting therefrom that portion conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument No. 81-010575, Official Records. Also excepting therefrom any portion lying within Tract 11857 per plat recorded in Book 185 of Maps, Pages 42 to 49, inclusive, records of said County. Also excepting that portion lying southeast of that property conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument no. 81-010575, Official Records. Also excepting therefrom any portion lying within Sterling A venue. Also excepting therefrom those portions of Lots 5 and 6 of Section 19, Township I North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, According to the Official Plat of said land on file in the District Land Office, more particularly described as follows: Commencing at the northerly centerline intersection of Foothill Drive and Sterling Avenue as shown on Tract Map. No. 11857, recorded iirMap Book 185, pages 42 to 49 inclusive, records of said County; thence North 00005'45" West, a distance of 47.31 feet; thence North 00004'33" West, a distance of 111.20 feet to a point on the east boundary line of said Tract Map No. 11857, said point being the Point of Beginning; thence continuing north along said east boundary line, North 00004'33", a distance of 921.65 feet; thence North \3058'00" East, a distance of21 0.75 feet to the beginning of a tangent 1030.00 foot radius curve, concave to.the west; thence northerly along said curve, through a central angle of 07054 '00" a distance of 142.02 feet; thence South 89051 '03" East, a distance of94.95 feet; thence South 590\3'24" East, a distance of295.00 feet; thence South 08016'49" East, a distance of 501.06 feet; thence South 510\3'00" West, a distance of 199.58 feet; thence South 00002'25" West, a distance of357.41 feet; thence South 46031 '49" West, a distance of289.87 feet; thence South 00022'58" West, a distance of 114.73 feet; thence South 39025'02" East, a distance of 59.76 feet; thence South 49041 '34" 'W:est, a distance of 50.87 feet to a point on the northeasterly Right-of- Way of Foothill Boulevard (40 feet wide) as shown on said tract Map No. 11857; thence along said northerly Right-of-Way of Foothill Boulevard, North 45002'33" West, a distance 83.10 feet to a poigtgll th_e<<~te.r!Y QQum1'!1}' ofs(iid Tract No. 11857, said Qoinjbeillg the beginning ora 230.00 -foot radius non-tangent curve, concave to the west, a radial to said point bears South 82017'34" East; thence along said easterly boundary of said Tract No. 11857, northerly, along said curve, through a central angle of 480 16'26", a distance of 193.78 fcet; thence tangent to said curve, North 40034'00" West, a distance of23.21 feet to the Point of Beginning. Containing 135.60 acre:fmore or less. And reserving and excepting therein in favor of the City of San Bernardino and the City of San Bernardino Water Department the following interests as set forth in Lot B below: LotB Reserving and excepting all rights to use or appropriate water for public or private purposes of any water now or hereafter existing upon or flowing unto, over or across, or contained, and any portion thereof, and the Redevelopment Agency of the City of San Bernardino, and its successors in interest, or any portion thereof, shall not acquire any right, title or interest in or to the waters which shall fall on or flow on, in, over or across lot. EXHIBIT "B" Grant Deed 4851-0059-46881 7 Recording Requested by and When Recorded Mail to: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, CA 92401 For Recorder's Use Only Recording Fee Exempt Pursuant to Government Code Section 6103 GRANT DEED Documentary Transfer Tax -0- FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the City of San Bernardino, a municipal corporation, hereby GRANTS to the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic, all that real property situated in the City of San Bernardino, County of San Bernardino, State of California, described as: See Exhibit "A" attached hereto City of San Bernardino Dated: Judith Valles, Mayor STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) On before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by his/her/their signature(s) on tile instrument the person(s), or the entity upon behalf of which the person( s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 485] -0059-4688. ] 8 Exhibit "A" Legal Description of Property 4851.()059-46881 9 PARCEL 2 APN: 0155-361-25 Lots 5 and 6 and the East 1/2 of the Northwest 1/4 of Section 19, Township I North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, according to the Official Plat of said land on file in the District Land Office. Excepting therefrom that portion conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument No. 81-010575, Official Records. Also excepting therefrom any portion lying within Tract 11857 per plat recorded in Book 185 of Maps, Pages 42 to 49, inclusive, records of said County. Also excepting that portion lying southeast of that property conveyed to the San Bernardino County Flood Control District by deed recorded January 15, 1981, as instrument no. 81-010575, Official Records. Also excepting therefrom any portion lying within Sterling Avenue. Also excepting therefrom those portions of Lots 5 and 6 of Section 19, Township I North, Range 3 West, San Bernardino Base and Meridian, in the County of San Bernardino, State of California, According to the Official Plat of said land on file in the District Land Office, more particularly described as follows: Commencing at the northerly centerline intersection of Foothill Drive and Sterling Avenue as shown on Tract Map. No. 11857, recorded iilMap Book 185, pages 42 to 49 inclusive, records of said County; thence North 00005'45" West, a distance of 47.31 feet; thence North 00004'33" West, a distance of 111.20 feet to a point on the east boundary line of said Tract Map No. 11857, said point being the Point of Beginning; thence continuing north along said east boundary line, North 00004'33", a distance of 921.65 feet; thence North 13058'00" East, a distance of21 0.75 feet to the beginning of a tangent 1030.00 foot radius curve, concave to.the west; thence northerly along said curve, through a central angle of 07054 '00" a disiance of 142.02 feet; thence South 89051 '03" East, a distance of 94.95 feet; thence South 59013'24" East, a distance of295.00 feet; thence South 08016'49" East, a distance of 501.06 feet; thence South 51013'00" West, a distance of 199.58 feet; thence South 00002'25" West, a distance of357.41 feet; thence South 46031 '49" West, a distance of289.87 feet; thence South 00022'58" West, a distance of 114.73 feet; thence South 39025'02" East, a distance of 59.76 feet; thence South 49041 '34" w,est, a distance of 50.87 feet to a point on the northeasterly Right-of- Way of Foothill Boulevard (40 feet wide) as shown on said tract Map No. 11857; thence along said northerly Right-of- Way of Foothill Boulevard, North 45002'33" West, a distance 83.10 fe~t to a QginL()p th~_~aste![ybQJ1!IclID' ()fsilid Trilct No. 11857, said ()oi!lLb(:iQg . the beginning of a 230.00 foot radius non-tangent curve, concave to the west, a radial to said point bears South 82017'34" East; thence along said easterly boundary of said Tract No. 11857, northerly, along said curve, through a central angle of 48016'26", a distance of 193.78 feet; thence tangent to said curve, North 40034'00" West, a distance of23.21 feet to the Point of Beginning. Containing 135.60 acre?more or less. And reserving and excepting therein in favor of the City of San Bernardino and the City of San Bernardino Water Department the following interests as set forth in Lot B below: LotB Reserving and excepting all rights to use or appropriate water for public or private purposes of any water now or hereafter existing upon or flowing unto, over or across, or contained, and any portion thereof, and the Redevelopment Agency of the City of San Bernardino, and its successors in interest, or any portion thereof, shall not acquire any right, title or interest in or to the waters which shall fall on or flow on, in, over or across lot. ACCEPTANCE By Resolution No. the Redevelopment Agency of the City of San Bernardino hereby accepts title to the property described in Exhibit A to this Grant Deed. Redevelopment Agency of the City of San Bernardino Dated: Judith Valles, Chairperson STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) On before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the pcrson(s) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hlslher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 4851.{)0594688t 10 ATTACHMENT III SUMMARY REPORT PURSUANT TO HEALTH AND SAFETY CODE SECTION 33433 OF THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW ON THE DEVELOPMENT AND DISPOSITION OF CERTAIN AGENCY OWNED PROPERTY PURSUANT TO THE 2005 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY AND WATSON-WESTRIDGE, LLC (143.72 ACRE RESIDENTIAL DEVELOPMENT LOCATED NORTH OF FOOTHILL DRIVE AND EAST OF STERLING AVENUE) INTRODUCTION This Summary Report has been prepared for the Redevelopment Agency of the City of San Bernardino (the "Agency") in accordance with Health and Safety Code Section 33433. This Report sets forth certain details of the 2005 Disposition and Development Agreement (the "DDA") by and between the Agency and Watson-Westridge, LLC, a California corporation (the "Developer"). The DDA provides for the disposition of certain Agency-owned Property (APN: 0155-361-25 and APN: 0155-381- II & 45) to the Developer for the development of new single-family homes (the "Project"). The Project that may be undertaken by the Developer is referred to in the DDA. This Summary Report is organized into the following six (6) sections: I. Salient Points of the Proposed DDA: This section includes a description of the Project and the major responsibilities to be assumed by the Agency and the Developer. II. Cost of the DDA to the Al!ency: This section outlines the proposed DDA costs to the Agency, ifany. III. Estimated Value of the Interests to be Conveyed Determined at the Hil!hest and Best Use Permitted Under the Redevelopment Plan: This section summarizes the value of the Property to be conveyed by the DDA to the Developer at the highest use permitted. IV. Estimated Reuse Value of the Interests Determined at the Required Use and with the Conditions, Covenants and Development Costs Required by the Proposed Al!reement: This section addresses the reuse value, the sales price, and whether the conveyance is less than the fair market value, determined at the highest and best use consistent with the redevelopment plan, if applicable; if the price is less than fair market value, the Agency shall provide as part ofthe summary an explanation of the reasons for the difference. V. Blil!ht Alleviation: This section describes the existing blighting conditions in and around the Foothill Drive and east of Sterling Avenue, and an explanation of how the proposed sale and development will assist in alleviating the blighting conditions. VI. Conformance with the AB 1290 Implementation Plan: This section identifies how the proposed DDA will result in a development activity that fulfills the goals and objectives established in the Agency's AB 1290 Five-Year Implementation Plan. 4811-4371-9168.1 I PlAgendMlAgenda AnachmentslSummary Repol1.5\2005\05-08-15 Watson-Weslridge Summary Repondoc I. SALIENT POINTS OF THE DDA: A. Description of the proposed Proiect: The purpose of the DDA is to facilitate the development of up to 77 single-family homes on the 143.72 acres. The homes will be built on a minimum 10,800 square feet lot with a minimum 2,500 square feet of living space, 3 and up to 7 bedrooms, up to 4 car garages, I and 2 story homes with multiple floor plans and elevations. In addition, the balance of the acreage will be developed with walking and hiking trails, monumental entryways, 2 gazebos, a passive park, and open space. The development will be a private and gated community and the common landscape and improvements would be maintained through a homeowner's association. The exterior elevations of the new homes will vary but in general, all elevations and floor plans will conform to the City Development Standards. The Project is subject to the review and approval of the Planning Commission. The following Agency Property is affected by the DDA: Agency Lot Address APN Number Approximate Size of Al!encv Lot north of Foothill Drive, east of Sterling A venue 0155-361-25 135.6 acres (vacant City land) north of Foothill Drive, east of Sterling A venue 0155-381-11 and 45 8.12 acres (vacant Agency land) B. Agency Responsibilities: The Agency will acquire the 135.6 acres (City Property) from the City for $776,000, which is the fair market value, and to simultaneously sell the City Property to the Developer at the same price of $776,000 together with the Agency Property consisting of 8.12 acres at the fair market value of $368,000 for a total appraised value of$I,144,000; the total acreage to be sold to the Developer is 143.72 acres for the purchase price of $1.2 million pursuant to the terms of the DDA. The Agency will pay not more than of $56,000 for the acquisition of property needed to provide road access between the Agency Property and the City Property that is owned by the County of San Bernardino Flood Control District. If the costs of said purchase is in excess of the $56,000, the Developer is required to make up the difference. Should the Agency be successful in obtaining the necessary road right- of-way from the County at no cost, the Agency will retain the $56,000 to offset its legal and administrative expenses related to the transaction. 481J-4J7J-9168.J 2 P\Agcndas\Agenda AnachmenlslSummary Rcporb\2005\05-08-IS Wal~on.Wemidgc Summary Repondo\: c. W atson- Westridge, LLC Responsibilities: Enter into the DDA with the Agency and pay the purchase price of $1.2 million and to develop up to 77 single-family homes together with all necessary on and off-site improvements. Secure the construction and permanent financing required to develop the Project. Receive all required entitlements and permits to build the Project. Provide the required liability insurance. Market and sell the homes and complete the Project within the specified schedule of performance, but no later than December 2008. Developer has agreed to match City funds of up to $200,000 to improve and enhance landscaping and public improvements on Del Rosa Avenue, a major thoroughfare into the proposed development Site (it is understood that the City has budgeted or will budget an equal sum in the City's Capital Improvement Program budget to assist with the accomplishment of the enhancement improvements). The Developer has committed to donate $50,000 to the Literacy Program managed by California State University at San Bernardino. The Developer must comply with the CEQA Mitigation Monitoring and Reporting Program requirements. II. COST OF THE PROJECT AND THE DDA TO THE AGENCY: The cost of the DDA to the Agency is the price of the land that it paid to acquire the Agency Property in 199 I and 1992 for the purchase price of $330,920, and nominal ancillary expenses related to the disposition of the Agency Property such as customary escrow fees, title fees, administrative and overhead expenses and legal costs, estimated at less than $20,000, for an estimated total of $350,920. Per the DDA, the Agency will sell the Agency Property at the fair market value of $368,000, and sell the City Property to the Developer at the fair market value price of $776,000 for a grand total sales price of $1.2 million, in excess of the appraised fair market value of $1,144,000. III. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED BY THE AGENCY DETERMINED AT THE HIGHEST AND BEST USES PERMITTED UNDER THE REDEVELOPMENT PLAN: The estimated value of the interest to be conveyed to the Developer is $1,144,000 million. The value was established through an MAl Appraisal. The Site is not located within a Redevelopment Project Area and therefore, there is no applicable Redevelopment Plan. Consequently, the value is considered the highest and best use permitted for the area. 4811-4371-9168.1 3 P \AgendaslAgenda AUachmcnIS\S~mmary Repons\1005\05_08_15 Watson- WcstridllC Summary Repo" doc IV. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED BASED ON THE REOUlRED REUSE AND WITH THE CONDITIONS, COVENANTS AND RESTRICTIONS REQUIRED: The sale of the Site is necessary to facilitate the implementation of the goals of the Agency and the City's Housing Element and to ensure that housing opportunities are made available to residents of all income groups. Without Agency participation and facilitating the sale of the Site, the Project would not occur. Due to the fact that the Site is being sold at greater than fair market value, there will be no restrictions and covenants placed on the Site. In conclusion, the interest to be conveyed to the Developer has been determined to be the highest and best use permitted based on the appraised value, which is also applicable to the reuse value. V. BLIGHT ALLEVIATION: The Site is currently blighted vacant and underutilized land. Development of the Project will provide housing opportunities for persons of all income levels and place the Site back on the tax rolls, creating additional revenues for the City and other affected taxing agencies. VI. CONFORMANCE WITH THE AB 1290 IMPLEMENTATION PLAN: The Five-Year Implementation Plan adopted by the Agency contains several broad operational goals and objectives. Among these are the following: · Eliminate blighting influences including deteriorating buildings, uneconomic land uses, obsolete structures, and other environmental, economic, and social deficiencies. · To facilitate land assembly to prevent piecemeal development that would leave economic potential underachieved. . To re-plan, redesign and develop underdeveloped areas that are stagnant or improperly utilized. Although the proposed Project IS not located within a Redevelopment Project Area, it will nevertheless assist the Agency in accomplishing its broad goals established in its Five-Year Implementation Plan as noted above. Moreover, the Project is consistent with City's General Plan and Housing Element and the Municipal Development Code. 481 ]-4371.9168.1 4 P\Agenda5\Agenda AUlK:hment$\Sumrnary Reportsl200SI0S.08-15 WalWIl-Wcstridge Summary Rcpon doc A TT ACHMENT IV REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY FOR Disposition and Development Agreement between Watson-Westridge, LLC and the Redevelopment Agency of the City of San Bernardino, for the ultimate development of Tentative Tract Map 16963 and associated Conditional Use Permit. PROJECT DESCRIPTION/LOCATION: The proposed project site is located at the northeast comer of Sterling Avenue and Foothill Drive, in the northern portion of the City. The site consists of two irregular parcels totaling 143.52 acres. 135.6 acres are currently owned by the City of San Bernardino, and 8.12 acres are owned by the Redevelopment Agency. The Redevelopment Agency will enter into agreements, including a Disposition and Development Agreement with Watson-Westridge, LLC, who will subdivide the 143.72 acres into 77 single family lots, as well as lettered lots for streets, open space and park facilities. This Initial Study addresses all known issues associated with the DDA, the ultimate development of the Tentative Tract Map and the overall impacts of the project. DATE: May 26, 2005 PREPARED BY Nicole Sauviat Criste, Consulting Planner Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, CA 92401 (909) 663-1044 PREPARED FOR Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, CA 92401 (909) 663-1044 IS 1 P lAilcndas\Agenda Atlachments\E~hibils\200S\OS.Og-IS Watson.Westridgt (Al1achmem IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY The California Environmental Quality Act (CEQA) requires the preparation of an Initial Study when a proposal must obtain discretionary approval from a governmental agency and is not exempt from CEQA. The purpose of the Initial Study is to determine whether or nor a proposal, not exempt from CEQA, qualifies for a Negative Declaration or whether or not an Environmental Impact Report (ErR) must be prepared. I. Project Title: Disposition and Development Agreement between Watson-Westridge, LLC and the Redevelopment Agency of the City of San Bernardino and Tentative Tract Map 16963 and associated Conditional Use Permit 2. Lead Agency Name: Address: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, CA 92401 3. Contact Person: Phone Number: Maggie Pacheco (909) 663-1044 4. Project Location (Address/Nearest cross-streets): Northeast comer of Foothill Drive and Sterling Avenue. 5. Project Sponsor: Address: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, CA 9240 I 6. General Plan Designation: Low Density Residential, with Hillside Management Overlay 7. Description of Project (Describe the whole action involved, including, but not limited to, later phases of the project and any secondary, support, or off-site feature necessary for its implementation. Attach additional sheets, if necessary): The project site is located at the northeast comer of Foothill Drive and Sterling Avenue. The site is located in the foothills of the City, at elevations ranging from 1,420 feet above mean sea level to 1,860 feet above mean sea level. The project consists of a Disposition and Development Agreement (DDA) between Watson- Westridge, LLC, and the Redevelopment Agency of the City of San Bernardino (Agency) to convey 143.72 acres to Watson-Westridge, LLC, which will develop Tentative Tract Map 16963 into 77 single-family lots, as well as lettered lots for streets, open space, and park lands. The City of San Bernardino owns 135.6 acres of the total area, which will be conveyed to the Redevelopment Agency. The Redevelopment Agency owns 8.12 acres currently. The Agency will secure all lands involved in the DDA, and convey them to Watson-Westridge, LLC. The land is also known as Assessor's Parcels 0156-361-46 and 0156-361-25. The DDA describes the terms under which the Agency will convey the 143.72 acres of land to Watson-Westridge, LLC. The terms of the DDA include: IS 2 P\Agendas\Agenda Attachments\Exhibils\2005\05.08-15 Walson-Weslridge IS (AlIachment IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY 1. That the Agency will sell the 143.72 acres to Watson-Westridge, LLC. 2. That W atson- W estridge, LLC will, following the purchase of the parcel, grade the site, install utilities, and construct between 5 and 50 of the 77 single family homes proposed for the site (the quantity to be determined by market forces). The Tentative Tract Map (TTM) is designed to meet the requirements of the DDA, and subdivides the 143.72 acres into 77 single family residential lots of at least 10,800 square feet. Lots within the site will range to over 22,000 square feet. Lettered lots are also included in the TTM for streets and open space areas, as well as a park. The site will be accessed from a loop road, which will connect to Foothill Drive at the western and eastern ends of the site. Lots will be located on the loop road, as well as on cul-de-sac roadways radiating from the loop road, and proposed in several locations throughout the site. An access easement will be required through San Bernardino County Flood Control District property to connect the north and south portions ofthe tract. Streets may be public. An open space lot will be created at the northern end of the site, and a park in the southeastern portion of the site. The proposed Conditional Use Permit is required under the Hillside Management Overlay for all tract maps, in order to assure that the development standards for the Overlay are implemented in the proposal. The proposed Tentative Tract Map will require review and approval by the City of San Bernardino subsequent to approval of the DDA by the Redevelopment Agency. The Redevelopment Agency is the Lead Agency in preparation of this Initial Study. The City is a Responsible Agency. This Initial Study has been prepared based on information and plans available at this time. Should conditions or plans change, additional CEQA review may be required, and would be completed as part of the City's review process. 8. Surrounding Land Uses and Setting: Lands to the north, west and east are currently open space. Lands to the south and southeast are developed single family homes and open space. The area in which the property is located is quite hilly, and represents the northern end of the City. Lands northerly of the project site are part of the San Bernardino National Forest. 9. Other agencies whose approval is required (e.g., permits, finance approval, or participation agreement): City of San Bernardino: Approval of Tentative and Final Tract Map, Conditional Use Permit US Army Corps of Engineers Regional Water Quality Control Board California Department ofFish and Game IS 3 P \Agendas\Agenda Allachmenls\hhibils\2005\05.08.15 Watson- Wcslridge \AlIach~1 IV).doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Insert Exhibit 1 - Site Location IS 4 P \Agendas\Agenda Atta,hments\E~hibiIS\2005\05-08-15 Watson.Wemidge IS (Altachmem IV) doc \: --,-~ :~ . / .z...., , .. ".-...;/. - ./" <:',: /'-.' 0>.< · /- ' -,'~; \. ~r/ , ! " ~,\:~ " ,.. ; i Source: TransTech Plannws & Researcb, we. Site Plan City of San Bernardino Redevelopment Agency o rr---, Ii..- ....J TERRA NOVA @ REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. 0 Aesthetics 0 Agriculture Resources [8J Air Quality [8J Biological Resources [8J Cultural Resources [8J Geology / Soils 0 Hazards & Hazardous 0 Hydrology / Water Quality 0 Land Use / Planning Materials 0 Noise 0 Population / Housing 0 Mineral Resources 0 Recreation 0 Transportation / Traffic 0 Public Services [8J Mandatory Findings of 0 Utilities / Service Systems Significance On the basis of this Initial Study, the City of San Bernardino Environmental Review Committee finds: o I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. [8J I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. o I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMP ACT REPORT is required. o I find that the proposed project MAY have a "potentially significant impact" or "potentially significant unless mitigated" impact on the environment, but at least one effect I) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. o I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed proj ect, nothing further is required. Signature Date Printed Name For IS 5 P\Agendas\Agenda AttachmenlsIExhibits\2005\05-08-15 Wal50n-Weslridge (AllachmenIIV)doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY a) Have a substantial adverse effect on a scenic vista as identified in the City's General Plan? Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact InCOlporation 0 0 [8J 0 0 0 [8J 0 I. AESTHETICS - Would the project: b) Substantially damage scenic resources, including but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character of quality of the site and its surroundings? o o [8J o d) Create a new source of substantial light or glare which would adversely affect day or nighttime view in the area? o o [8J o e) Other: o o o [8J Discussion: The proposed DDA will not, in and of itself, have any impact on aesthetics, light or glare. The development of the Tentative Tract Map will result in the construction of 77 single family homes. The design of the homes has not been determined at this time, however, it can be expected that one and two story homes would be proposed. The site is located in an area designated and partially developed in single family homes. The area occurs at the base of the mountains, and views to the north into the hills are prevalent in this area. There is a rock outcropping on the northern end of the site. This outcropping will be preserved as open space in perpetuity, assuring that the resource is not lost or damaged. Because the site is in an area of hills at the north end of the City, it is designated as a Hillside Management area. As a result, the provisions of the Development Code, as they relate to height, grading and density will be applied to the project site through the Conditional Use Permit required as part of the project application. Particularly important in the case of the proposed project are height differential limitations in the Development Code, which prohibit significant grade differences between lots. The Map will be reviewed for its conformance with these provisions of the Code. The purpose of these provisions is to assure that the impacts on adjacent lots, including viewsheds, are minimized. The standards in the Development Code, therefore, assure that potential impacts to viewsheds and scenic resources are mitigated to less than significant levels. IS 6 PlAgenda.slAgellda Anachmems\Exhibils\2005\05.08-15 Wal5Ol1-Weslridge (Anachmc:nl IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY The development of the subdivision will result in lighting from landscape lighting and street lights, as well as that light generated by vehicle headlights. The project will be required to conform to the City's standards for residential lighting, which limit the amount of light, which can be installed on single family homes. Impacts associated with light and glares are expected to be less than significant. a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to a non- agricultural use? Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation D D D [8J II. AGRICULTURE RESOURCES: b) Other: D D D [8J Discussion: Neither the proposed DDA nor the development of the Tentative Tract Map will have any impact on agricultural resources. There are no agricultural lands in the vicinity of the project site, nor are any lands designated for agriculture in the area. There are no Williamson Act contracts in effect on project lands. IS 7 PlAgrndaslAgcnda Altachmenls\E~hibils\2005\05.08.15 Wat$On-Westridge (Attachment IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation III. AIR QUALITY - Would the project: a) Conflict with or obstruct implementation of the D D D ~ applicable air quality plan? (South Coast Air Basin) b) Violate any air quality standard or contribute D ~ D D substantially to an existing or projected air quality violation based on the thresholds in the SCAQMD's "CEQA Air Quality Handbook?" c) Result in a cumulatively considerable net D D ~ D increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial D D D ~ pollutant concentrations? e) Create objectionable odors affecting a D D D ~ substantial number of people based on the information contained in Project Description Form? f) Other: D D D ~ Discussion: The proposed DDA will not, in and of itself, have any impact on air quality. Development of the Tentative Tract Map will result in both construction and operational impacts associated with air quality. The proposed project is consistent with the General Plan land use designation applied to the property. Air quality management planning for the City and region have been developed based on the General Plan land use maps for the City and those around it. The project does not propose any unusual or highly polluting land uses. The project is therefore consistent with the air quality management plans in place for the region. IS 8 P\AgendaslAgenda Anachmenls\Exhibils\2005\05-0S-15 WalSOll-Westridge (AltaclunenIIV),doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Construction Impacts The grading of the site has the potential to generate two types of emissions. First, those chemical emissions generated by the operation of heavy equipment, and second those emissions of fugitive dust generated by ground disturbance. The grading for the project site results in balanced cut and fill, so that transport of dirt will not be necessary in this case. Estimates provided below are based on a mass grading scenario. Table 1 Grading Equipment Emissions - Diesel powered (pounds per day) # # hrs/ Equipment Pieces day CO ROC NOx SOx* PMIO Crawler Tractor/Dozer - D-9/D-8 2 8 1.29 2.90 23.24 2.24 1.06 Scraper - 633's 2 8 59.24 7.28 49.18 7.36 2.16 Rubber Tire Loader - 980 I 4 5.76 0.68 4.12 0.73 0.15 Motor Grader - 14-G I 8 14.98 1.76 11.00 0.69 0.45 Off-Highway Trucks - Water Truck I 8 30.62 3.60 22.48 1.14 0.92 Total: 111.89 16.22 110.02 12.16 4.74 SCAQMD Thresholds of Si2nificance 550.00 75.00 100.00 150.00 150.00 Source: URBEMIS2002 Version 7.4 Emissions Estimation for Land Use Development Projects, Appendix H, South Coast Air Quality Management District, May 2003. 'South Coast Air Quality Management District, "Air Quality Handbook," Table A9-8-A. As demonstrated above, the grading of the project site could result in emissions of oxides of nitrogen in excess of the thresholds established by the SCAQMD. Mitigation is required to reduce impacts to a less than significant level. Most notably, Aqueous Diesel Fuel will used and account for a 14% reduction in NOx from 110.02 Ibs/day down to 94.60 Ibs/day.! This, and other mitigation measures, is listed bellow. The project will also generate fugitive dust during grading operations. The City, and the project site, can be subject to significant winds, which can transport dust, and particulate matter of 10 microns or less (PMIO). PMlO is a criteria pollutant with known health impacts. In order to determine the potential impacts associated with grading of the site, the following table demonstrates the potential dust generation resulting from mass grading of the site. Please note that although the site is being mass graded, it is estimated that more than 50% of the site will remain undisturbed. To assure a conservative analysis the Table below assumes that 50% of the site will be disturbed. 1 SCAQMD, in consultation with CARB, have determined that the use of Aqueous Diesel Fuel reduces NOx emissions by 14%. Personal communication with Steve Smith (CEQA Program Superior) SCAQMD, June 13,2005 IS 9 P IAgcndas\Agcnda Attachmellts\ExhibitsIlOOS\05.011.]5 Walson-Weslridgc (Anadmclll rV)doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Table 2 Calculations of Fugitive Dust Potential Total Acres to be Factor Total Potential Dust Disturbed at Buildout* (Ibs.!day/acre) Generation (Ibs.!day) 75 26.4 1,980 Source: Table A9-9, "CEQA Air Quality Handbook," prepared by South Coast Air Quality Management District, April 1993. Based on the Table above, the proposed project will exceed SCAQMD thresholds for dust generation. Although these impacts will be of short duration (only during the grading of the site), a number of mitigation methods are available. In order to assure that these impacts are reduced to less than significant levels, mitigation is provided below. Operational Impacts The proposed project will result in approximately 737 average daily trips (ADT) associated with the 77 single family homes, and about 16 trips per day associated with the park, for a total daily trip generation of753 ADT2. Table 3 Moving Exhaust Emissions at Project Buildout (pounds per day) Total No. Vehicle Trips/Day 737 Ave. Trip Length (miles) 15 Total miles/day 11,055 x = Pollutant ROC 15.29 CO 141.73 NOx SOX 0.10 PMtO Pounds SCAQMD Daily Threshold (Lbs.!day) 75 550 100 150 150 Based on California Air Resources Board's EMF AC 2002 Version 2.2 Emissions Tables. Scenario year 2007, model years 1965 - 2007. 15.05 1.27 As demonstrated in the Table, the daily activities of residents at buildout of the proposed project will not exceed SCAQMD thresholds of significance. Impacts associated with long-term operation of the housing project will therefore have less than significant impacts on air quality. 2 "Traffic Impact Analysis for the West Ridge Development," prepared by Transtech Engineers, January, 2004. The traffic analysis assumed 107 units. Therefore, the trip generation rates included in the study have been applied to the 77 units now planned for the site. IS 10 PlAgendas\Agcnda Altachmenl~\Exhibil~\200S\05-08-15 Wilt~on. Wesuidge (Allachmenl IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Mitigation Measures In order to assure that the potential impacts associated with site grading are mitigated to less than significant levels, mitigation measures, as listed below, shall be implemented. I. Use of Aqueous Diesel Fuel in all diesel construction equipment (in order to attain the required 14% NOx reduction) shall be required. 2. No more than 2 scrapers shall operate on the site at any time. 3. Prevent vehicle idling in excess often minutes. 4. No more than an area equivalent to 10 acres shall be actively graded in anyone day. 5. Portions of the site that are actively being graded shall be watered regularly to ensure that a crust is formed on the ground surface, and shall be watered at the end of each work day. 6. All trucks leaving the site shall be washed off to reduce fugitive dust being tracked onto local roadways. 7. Any portion of the site to be graded shall be pre-watered to a depth of three feet, or to bedrock depth, whichever is greater, prior to the onset of grading activities. 8. Any area which remains undeveloped for a period of more than 30 days after certification of the slope shall be stabilized using either chemical stabilizers or hydroseed on the affected portion of the site. 9. SCAQMD Rule 403 shall be adhered to, insuring the clean-up of construction-related dirt on approach routes to the site. 10. All grading activities shall be suspended during first and second stage ozone episodes or when winds exceed 25 miles per hour. IS II P\Agendas\Agenda Attao::hmems\Exhibits\2005\05-08-15 Watson.Westridgc (Anachmenl IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation IV. BIOLOGICAL RESOURCES - Would the project: a) Have a substantial adverse effect, either directly D [2J D D or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or US Fish and Wildlife Service? b) Have a substantial adverse effect on any D [2J D D riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department ofFish and Game or US Fish and Wildlife Service? c) Have a substantial adverse effect on federally D D D [2J protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of D [2J D D any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with the provisions of an adopted D D D [2J Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? b) Other: D D D [2J Discussion: The proposed DDA will not, in and of itself, have any impact on biological resources. The development of 77 homes resulting from approval of the Map, however, has the potential to impact IS 12 P.\AgendaslAgenda Anachmc:nls\Exhibils\2005\05-08-15 WalSon- Weslridge (Al1achmem IV).doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY biological resources. A general biological survey and a focused Coastal California Gnatcatcher Survey were completed for the project site3. The survey found that before the Old Fire of 2003, the site included chaparral, coastal sage scrub, Eucalyptus woodlands and grasslands. The site had been disturbed by human activity. The Old Fire resulted in the complete obliteration of all but the Eucalyptus woodland habitat on the site. In addition, considerable disturbance associated with dirt biking, dumping and paintball has occurred since the fire. The on site surveys found that no endangered or threatened species occurred on the site, primarily due to the impacts associated with the Old Fire. The California thrasher, Cooper's hawk and sharp shinned hawk were identified on the site. These three species are all species of concern. The study also determined that the site is inside the original critical habitat boundary, but outside the 2003 critical habitat boundary, for the coastal California gnatcatcher. Prior to the Old Fire, the site was surveyed and found to contain only marginally suitable habitat for the species. Protocol surveys conducted prior to the survey did not identify the species on the project site. The intense heat of the fire has destroyed this potential habitat, and it was not found to have re-grown since the fire. The site is subject to the requirements of the Migratory Bird Act. As such, shrubs and trees on the site should be removed outside of the nesting season, defined as February IS to September I of each year, unless appropriate on site nest inventories are completed by a qualified biologist. In addition to the biological resource survey described above, a Delineation of potential areas meeting the criteria for either wetlands or jurisdictional waters was completed for the site4. The on-site investigation was conducted in conformance with the US Army Corps's Manual for wetland delineation. No wetlands were identified on the site. 14 north to south-trending drainage features were found on the project site, including 3 blue line streams. All drainages through the property are tributary to the Santa Ana River. The study identified each of the drainages, and determined whether they contained riparian or wetland habitat, and whether they would be identified as waters of the United States, for purposes of US Army Corps jurisdiction. Many of the drainages are unvegetated, but still qualify as waters of the US. Within these drainage courses, the study determined that there are a total of 4.29 acres ofland under the jurisdiction of the US Army Corps of Engineers (ACOE), and 4.6 acres within the jurisdiction of the California Department ofFish and Game (CDFG), 1.18 acres of which is riparian habitat. Based on the determination of the project biologist, the project engineer has altered the project plans to exclude drainages D-I, D-2, D-3, D-4, D-5 and D-6 from development. Drainages A, A-I, A-2 and B are not proposed for development. The project engineer estimates that the temporary impacts associated with development of the project site will result in disturbance of 0.75 acres in Drainage C, C-I and C-2. The project engineer further estimates that 0.07 acres of land will be permanently disturbed as a result of project buildout, in drainages C, C-I, C-2, C-3 and D. Both the temporary and permanent disturbance of these lands represent a potentially significant impact, without the imposition of mitigation measures. 3 "General Biological Survey and Focused Coastal California Gnatcatcher Survey on 144 Acre Site," prepared by Tom Dodson & Associates, April 2004. 4 "Delineation of Potential Wetlands and Jurisdictional Waters," prepared by Tom Dodson & Associates, March 2004. IS 13 PlAgcndaslAgenda Anachmenls\Exhibilsl2005\05-08-15 Walson-Weslridge (AltachmenIIV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY These impacts will be assessed by both the US Army Corps of Engineers and the California Department of Fish and Game in their issuance of permits for this site. Their requirements may include additional mitigation measures, based on the level of impact proposed with final grading plans for the proposed project. The development of the site will not interfere with a Habitat Conservation Plan or other local regulations associated with biological resources. In order to assure that impacts to biological resources are reduced to less than significant levels, the following mitigation measures shall be implemented: I. Should earth moving on the site involving the removal of trees and shrubs be proposed for the period from February 15 to September I of each year, the project proponent shall cause a nesting bird study to be prepared and submitted to the City Planner for review and approval. The study shall be prepared by a qualified biologist, and shall include recommendations on the avoidance of trees or shrubs where nests are present, if necessary. The study shall be completed 30 days prior to the initiation of grading or tree and shrub removal on the site, and approved prior to the issuance of grading permits. 2. In order to mitigate for the loss of waters of the United States, the project proponent shall: a. Construct a drainage course of 0.93 acres in size along Street B. The design of the drainage course shall include soils and vegetation consistent with habitat typical of non- wetland jurisdictional waters on the project site. The drainage course shall be installed at the project proponent's expense, and maintained in perpetuity by a financing mechanism acceptable to the City Attorney's office (assessment district, landscaping and lighting district, etc.). The design of the drainage course shall assure that it is isolated from potential urban runoff contamination within the site. b. Install permanent sources of water (guzzlers) at the headwaters of drainage C-3, and its tributary, as well as vegetation consistent with the vegetation in Drainage A, and resulting in a created habitat of at least 0.3 acres (13,068 square feet). The drainage courses shall be installed at the project proponent's expense, and maintained in perpetuity by a financing mechanism acceptable to the City Attorney's office (assessment district, landscaping and lighting district, etc.). The design of the drainage course shall assure that it is isolated from potential urban runoff contamination within the site. 3. The project proponent shall secure all necessary permits from the California Department of Fish and Game, the Regional Water Quality Control Board, and the US Army Corps of Engineers prior to issuance of any earth moving permit for the site. With the implementation of these mitigation measures, the potential impacts associated with biological resources will be reduced to less than significant levels. IS 14 PlAgendaslAgenda Atlachmc:nls\Exhibiu\2005\05-08-IS Watson-Westridge(AnachmenlIV).doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY V. CUL TURAL RESOURCES - Would the project: a) Be developed in a sensitive archaeological area as identified in the City's General Plan? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to ~15064.5 ofCEQA? c) Cause a substantial adverse change in the significance of a historical resource as defined in ~15064.5 ofCEQA? d) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? e) Disturb any human remains, including those interred outside of formal cemeteries? f) Other: Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation D D D ~ D D D ~ D D ~ D D D D ~ D ~ D D D D ~ D Discussion: The proposed DDA will not, in and of itself, have any impact on cultural resources. The development of the Map, however, will disturb lands on the project site, which could impact these resources. A cultural resource survey was completed for the proposed projectS The survey included both records searches and field inspections of the project site. The records search identified the southernmost end of the project site as the location of the Highland Vineyard Company Canal, which has potential historic significance. Intense field investigation, however, failed to locate any remnants of the canal, or of the buildings shown on historic maps of the site. Further, the field investigation revealed no evidence of any archaeological features or artifacts on the site. The survey concluded, therefore, that there would be no impact to cultural resources as a result of development of the proposed project. 5 "Historical/Archaeological Resources Survey Report Single Family Residential Development, North End of San Bernardino," prepared by CRM Tech. April, 2004 IS 15 PlAgenda$\Agenda Anll(:hmems\Exhibilsl2005\05-08-15 WatSOJ)- Weslridgc (AlIlKhmenIIV)doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY A paleontological resources survey was completed for the proposed project6. The survey included both records searches and an on-site investigation. The records search identified one recorded fossil locality within one mile of the project site, but none on the project site itself. The soils and earth strata on the southern portion of the site have, however, yielded fossilized remains in other locations. The rock formations on the northern portion of the site are not considered suitable for fossil remains, and require no further investigation. During the on-site survey, no fossilized remains were identified. However, because of the soil types on the site, the paleontologist determined that the southern portion of the site, where sedimentary rocks occur, has a moderate to high potential for paleontological remains. This represents a potentially significant impact, without mitigation. The site is not in an area known to have buried human remains. State law requires that anyone uncovering human remains report the find to law enforcement authorities. The project contractor will be required to conform to these requirements. Law enforcement officials would, if necessary, determine the need for Native American consultation, should remains be identified on the site during earth moving activities. In order to assure that potential impacts to paleontological resources are mitigated to less than significant levels, the following mitigation measures shall be implemented. 1. A qualified paleontological monitor shall be on site during all excavation and trenching within sedimentary rock areas of the site (in the southern portion of the site). The monitor shall be empowered to stop or redirect earthmoving activities. The monitor shall be equipped to salvage fossils as they are uncovered. 2. Any identified resources shall be curated in a manner which meets the highest professional standards. A report of any identified resources and of their disposition shall be submitted to the City Planner within 30 days of completion of earthmoving activities in sedimentary rock areas, for review and approval. With implementation of these mitigation measures, impacts associated with cultural resources will be reduced to less than significant levels. 6 "Paleontological Resources Assessment Report Single Family Residential Development, North End of San Bernardino," prepared by CRM Tech, April 2004. IS 16 PlAgendas\AgeRda Al1achmcnls\Exhibil5\200SI05-08-15 Watson-Wcstridge (AllochmenlIVldoc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation VI. GEOLOGY AND SOILS - Would the project: a) Involve earth movement (cut and/or fill) based D D ~ D on information included in the Project Description Form? b) Expose people or structures to potential D ~ D D substantial adverse effects, including the risk of loss, injury, or death? c) Be located within an Alquist-Priolo Earthquake D ~ D D Fault Zone? d) Result in substantial soil erosion or the loss of D D ~ D topsoil? e) Be located within an area subject to landslides, D ~ D D mudslides, subsidence, or other similar hazards as identified in the City's General Plan? 1) Be located within an area subject to liquefaction D ~ D D as identified in the City's General Plan? g) Modify any unique physical feature based on a D D ~ D site survey/evaluation? h) Result in erosion, dust, or unstable soil D D ~ D conditions from excavation, grading, fill, or other construction activities? i) Other: D D D ~ Discussion: The approval of the DDA will not, in and of itself, have any impact on geology and soils. The development of the site into 77 single family homes, however, will be impacted by site geology and soils. IS 17 P\Agendas\Agenda AttllChmenls\Exhibils\2005\05-08-15 Watson- Weslridge (AlIa(:hment IV).doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY The site is located in an Alquist-Priolo Earthquake Fault Zone. The site straddles both the north and south branches of the San Andreas Fault. As a result, several studies of the site were conducted7. The reports prepared by James R. Evans were reviewed and approved by the City Geologist. The survey included 9 Seismic Cuts, 3 Seismic Trenches, three large borings in an area of previous landslide, and 37 test pits. All activities were logged and recorded. The survey found that the site is separated into two distinct areas, with the southern half a relatively flat area, and the northern half a series of ravines and ridges. The survey included identification and reporting on soil and rock types on the site. The trenching revealed that the north branch of the San Andreas Fault occurs in a northwest to southeast trending diagonal through the northern portion of the site, and the south branch of the same fault occurs in a similar direction in the southern end of the site. The survey included analysis of the required setbacks, in which development of habitable structures is not to be permitted. The survey found that the lands north of the north branch are unstable, and delineated the area north of the site as unsuitable for tract development. This area currently shows as lots 63 through 73 on the proposed tract map. Subsequent to the completion of the study, the project geologist reviewed the Tentative Tract Map for consistency with the findings of the previous studies8. The review of the map resulted in a determination that lot 73 is not buildable, due to previous landslides on the site, and the potential to de-stabilize the landslide should development occur. This is a significant potential impact, which requires mitigation. The review further found that it may be possible for lots 63 through 72 to be constructed upon, if additional, lot specific analysis is conducted to determine the actual location of any faulting on the site. This analysis must be completed to determine the exact location of building pads for each lot. This is a potential significant impact, which requires mitigation. In the area of the south branch of the fault, a park is proposed inside the limitation boundary, and no structures are planned on this land. The development of single family homes on the northern lots would represent a significant potential impact to life and property associated with seismic activity on the fault, and must be mitigated, as provided below. In a letter dated July 19, 2005, the City Geologist indicated that further analysis was required to bring the geological study into compliance with the Alquist-Priolo Act, and to assure that structures can safely be constructed in the northern and southern portions of the Tract Map. This must be mitigated, as provided below. 7 "Engineering Geologic and Fault Investigation of Property North of Stirling & Foothill in the City of San Bernardino," letter report prepared by James R. Evans, CEG 974, October 2004; as well as "Response to Review of our October 18, 2004 Engineering Geologic and Fault Study..." dated January 2005 by the same author; and "Engineering Geologic Investigation 80" Acre Residential Development.. .," prepared by CHJ Incorporated, January 2004. 8 Letter dated May 6, 2005, signed by James E. Evans. IS 18 P\AgendaslAgenda AnachnxnlsIExhibils\2005\05.0g_15 Walson-Weslridge (AtloclllnenlIV)_OOc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY As mentioned previously, the site has been subject to landslides and mudflows in the past. Lot 73 (as shown on the Tentative Tract Map) is the recipient of such a large landslide. Lots 63 through 72 are located in the same general area, and may be subject to landslide or mudflow in a seismic or rain event, respectively. These flows have the potential to significantly impact these lots, without mitigation. Liquefaction is identified as possible adjacent to the south branch of the fault, at the southern end of the property. Site specific investigation associated with site grading will be necessary to assure that the proper foundation design is applied to the project site. This mitigation measure is provided below. The project site is located in a high wind hazard area. The mitigation measures included under Air Quality, above, are specifically designed to provide mitigation for fugitive dust impacts resulting from site grading. These mitigation measures will lower the potential for wind erosion on the site to less than significant levels. The site will be subject to water erosion, particularly during the construction process. The City requires the preparation of a Storm Water Pollution Prevention Plan (SWPPP) as part of the issuance of grading permits for the site. The SWPPP will include comprehensive Best Management Practices for both construction and post-construction management of water through the site, to assure that storm waters are not polluted by soil erosion or other materials. These requirements are part of the City's implementation of NPDES standards, to which the proposed project will also b subject. The imposition of these standards is expected to reduce the potential impacts associated with water erosion to less than significant levels. The creation of the lots on the site will result in the construction of cut slopes throughout the site, as shown on the Map. These slopes must be properly engineered and constructed to assure their long term stability. The geologist identified this as a potential significant impact, without mitigation, as provided below. The rocky areas on the site will be protected as open space on the site, and will not be constructed upon, thereby lowering the potential for rock fall on the site. The final grading plans will be reviewed by a geologist to assure that the potential impacts associated with rock fall are reduced to less than significant levels. In order to assure that potential impacts associated with fault rupture, landslides, mudflows, liquefaction and subsidence are reduced to less than significant levels, the following mitigation measures shall be implemented: 1. Lots 73 shall be eliminated from the proposed tract map and preserved as dedicated open space. 2. Prior to the issuance of a grading permit for any lot identified as #63 through #72 (inclusive) on the Tentative Tract Map, a comprehensive geotechnical analysis shall be conducted by a qualified geologist to determine whether a building can be sited on the lot. The analysis shall be reviewed and approved by the City Geologist prior to the issuance of any earth moving IS 19 P\AgendaslAgcnda AttadHl1enls\EJ\hibils\2005\05-08-IS Wauon-Weslridge (Auachmcm IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY permit for anyone of these lots. The pads shall meet Development Code development standards for lot size, width, depth, and setbacks. 3. Prior to the issuance of grading permits for any lot identified as #63 through #72 (inclusive) on the Tentative Tract Map, a comprehensive geotechnical analysis, including analysis of landslide and mudflow potential, shall be prepared by a qualified geologist, and submitted to the City Geologist for review and approval. The recommendations included in that study shall be implemented in all earth moving plans for these lots. 4. Prior to the issuance of grading permits for the project site, a site-specific liquefaction analysis shall be completed by a qualified geologist or geological engineer, and submitted to the City for review and approval. The analysis shall include a complete report on liquefaction and subsidence potential for the site, and recommendations for construction of structures, footings, etc., as needed. The report's recommendations shall be implemented in site preparation plans and building designs. 5. The final grading plan shall be submitted to a qualified geologist for review and approval of slope structure and rock fall, prior to issuance of any grading permit 6. All cut slopes shall be constructed on the site shall be monitored and tested by a qualified geologist. A report of the testing and a certification of the slopes shall be provided to the City Engineer within 30 days of completion of the grading on the site. 7. Pursuant to City Geologist Dr. Williams'letter dated July 19,2005, further geology study in compliance with the Alquist-Priolo Earthquake Fault Zoning Act shall be required. Specifically, prior of approval of land use entitlement for Tentative Tract Map No. 16963 and Conditional Use Permit No. 05-03, additional geology work satisfactory to the City Geologist shall be required for Lots 13 thru 16, 61, and 63 thru 73. Implementation of these mitigation measures will assure that impacts associated with geology and soils are reduced to less than significant levels. IS 20 P \Agcndas\Agcrtda Anachmenls\E~hibilsl100S\OS-08.1S Watson-Westridge {Attachment IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation VII. HAZARDS AND HAZARDOUS MATERIALS - Would the project: a) Create a significant hazard to the public or the D D D ~ environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the public or the D D D ~ environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous D D D ~ or acutel y hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d) Be located on a site which is included on a list D D D ~ of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use D D D ~ plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) Impair implementation of or physically interfere D D D ~ with an adopted emergency response plan or emergency evacuation plan? g) Expose people or structures to a significant risk D D ~ D of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? IS 21 P \AgendaslAgenda Anachmenl5\E~h.iblls\2005\05-08.15 Watson-Weslridge (AlladuTlenl IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Potentially Significant Impact Less Than Significant With Mitigation Incorporation Less Than Significant Impact No Impact VII. HAZARDS AND HAZARDOUS MATERIALS - Continued h) Other: o o o ~ Discussion: The DDA, in and of itself, will have no impact on hazardous materials. The eventual development of the homes on the site will generate only minimal storage of household hazardous materials typical of any residential neighborhood. The City's waste franchisee implements programs for the safe disposal of these materials and the residents of this project will be subject to these programs. The site is located in a Fire Hazard Area, and will be required to implement setback and fire prevention measures identified by the Fire Marshal. These programs are designed to lower the potential impacts associated with wildland fires to less than significant levels. The site is not on the state's list of sites which have previously been identified for having a hazardous materials remediation issue. The proposed project is not within the boundaries of an airport land use plan. Overall impacts associated with hazards and hazardous materials are expected to be less than significant. IS 22 P\Agenda.sIAgenda AnachmenfslE>;hibiu\2005\05-08.15 Watson-Westridge (Auachment IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation VIII. HYDROLOGY AND WATER QUALITY- Would the project: a) Violate any water quality standards or waste D D [8J D discharge requirements? b) Substantially deplete groundwater supplies or D D [8J D interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage D D [8J D pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off-site? d) Substantially alter the existing drainage D D [8J D pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off-site? e) Create or contribute runoff water which would D D D [8J exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff, such as from areas of material storage, vehicle or equipment maintenance (including washing or detailing), waste handling, hazardous materials handling or storage, delivery areas, loading docks, or other outdoor areas? IS 23 P\AgendaslAgenda Anachmcms\Exhibin\2005\05.08-15 Watson-Westridge {Attachment IV).doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation VIII. HYDROLOGY AND WATER QUALITY - Continued f) Otherwise substantially degrade water 0 0 ~ 0 quality? g) Place housing within a 100- year flood hazard 0 0 0 ~ area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? (Panel No. ) h) Place within a 100-year flood hazard area 0 0 0 ~ structures which would impede or redirect flood flows? i) Expose people or structures to a significant 0 0 0 ~ risk ofloss, injury, or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mud flow? 0 0 0 ~ k) Other: 0 0 0 ~ Discussion: The DDA will not, in and of itself, have any impacts on hydrology or water resources. The development of the site for residential structures will result in demand for domestic water, fewer impermeable surfaces, and a need to retain storm flows. The site will utilize domestic water for landscaping and for domestic uses. The East Valley Water District will provide water to the homes built within the project. The development of 77 homes will not significantly impact the demand for water services. The development is within the range allowed in the General Plan, which has served as the basis for water management planning for the District and other water purveyors in the City. Impacts associated with the provision of domestic water to the site are expected to be less than significant. The development of single family homes is not expected to impact groundwater quality, insofar as residential land uses do not generate significant pollutants which could impact the groundwater basins in the area. Further, the rocky nature of the project site will provide a physical barrier for pesticides and fertilizers which may be applied on residential lawns. Impacts are expected to be less than significant. IS 24 plAgeodas\Agenda AttachmcnlslExhibilS\2005\05-08-15 Walson-We:slridge (Anachmenl IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY In order to determine how the hydrology improvements of the site would be designed, a preliminary drainage study was prepared9. Flood control facilities are located in the vicinity of the project site, and were considered in the design of the flood control improvements. The watershed analyzed included off- site flows, estimated at 421 cubic feet per second (cfs). The study determined that storm flows through the proposed project will be carried in the project streets and a system of storm drains to Sand Canyon Creek and Flood Control District facilities located south of the site. The storm flows through the site will be conveyed to Sterling Avenue and Foothill Drive, and discharging into Sand Canyon Creek at that location, southeast of the project site. In the southeastern portion of the site, flows will be conveyed to Foothill Drive, and into Flood Control facilities south of the site. The City Engineer will review all plans for the conveyance of water through the site, and assure that this conveyance meets all City standards, prior to issuance of grading permits. The City and state, as previously stated, require the preparation of SWPPP, which include best management practices for water quality management. The City is also a co-permittee with the County of San Bernardino in the implementation of the NPDES program, which implements standards for water quality associated with surface water. These standards will assure that the construction of the project will not degrade storm water, and will not release storm water into the City's storm drainage system in an improper or unsafe manner. The project site is not located in a 100 year flood plain. The project site is not subject to tsunami or seiche. Impacts associated with hydrology and water quality are expected to be less than significant. 9 "Preliminary Drainage Study Sterling Heights," prepared by Transtech/Mapco, April 2003. IS 25 PlAgendaslAgenda Anachmenls\Ellhibil5\2005\05-08-15 WatSOIl- Westridge {Allachmcnt iV)doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation IX. LAND USE AND PLANNING - Would the project: a) Physically divide an established community? 0 0 0 [8J b) Connict with any applicable land use plan, 0 0 0 [8J policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Contlict with any applicable habitat 0 0 0 [8J conservation plan or natural community conservation plan? d) Be developed within the Hillside Management 0 [8J 0 0 Overlay District? e) Be developed within Foothill Fire Zones A, B, 0 [8J 0 0 or C as identified in the City's General Plan? f) Be developed within the Airport Influence Area 0 0 0 [8J as adopted by the San Bernardino International Airport Authority? g) Other: 0 0 0 [8J Discussion: The DDA will not, in and of itself have any impact on land use planning. Development of single family homes on the site is consistent with the General Plan and Zoning designations assigned to the property. The site is currently vacant, and surrounded by open space and residential lands. There will be no displacement of an established community. The proposed project is within the Hillside Management Overlay, and will be required to conform to the standards imposed in that zoning overlay district. As previously stated, the proposed project will be required to implement fire protection measures consistent with requirements for fire hazard areas. The proposed project site is located in a Foothill Fire Zone A, and therefore represents a moderate fire hazard. In order to assure that impacts associated with the potential for wildland fires are reduced to less than significant levels, mitigation is required. IS 26 P\AgcndaslAgcnda Anachments\Exhibits\2005\05-08-15 Watson- Weslridge (Allachmc:m IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY The proposed project is not within the area of influence of the San Bernardino International Airport. Impacts associated with land use and planning are expected to be less than significant. In order to assure that the impacts associated with wildland fires are reduced to less than significant levels, the following mitigation measures shall be implemented: I I. The developer shall prepare and submit a Fuel Modification Plan to be reviewed and approved by the Fire Department. The approved Fuel Modification Plan recommendations shall be incorporated into the landscaping and slope revegetation plans for the project. The plan should identify a Fuel Modification Zone, which includes the following components: a. A wildland fire hazard rating assessment and expected fire behavior of off-site and on- site native vegetative fuels. b. A long term "firewise landscaping" and fuel modification treatment plan to be implemented by and around the periphery of the proposed development. c. Building design and construction criteria. 2. Development of this site shall comply with the Fire Department's standards for Foothill Fire Zones. A brush management and fuel modification zone shall be incorporated into the Conceptual Landscape Plan. 3. A fuel modification plan shall be prepared to address the overall wildland fire hazards and associated risks that may threaten life and property for development of this site. IS 27 P. \Agendas\Agenda Altachments\Exhibits\2005\05-08-15 Walson-Weslridge (Allachment IV).doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation X. MINERAL RESOURCES - Would the project: a) Result in the loss of availability of a known D D D ~ mineral resource that would be of value to the region and the residents of the state? b) Result in the loss of a locally-important mineral D D D ~ resource recovery site delineated on a local general plan, specific plan or other land use plan? c) Be located in a Mineral Resource Zone as D D D ~ adopted by the State Mining and Geology Board and identified in the City's General Plan? Discussion: The DDA will not, in and of itself, result in any impacts to mineral resources. The proposed project site is not located in an area of significant mineral resources, as mapped in the General Plan. Impacts to mineral resources are expected to be insignificant. IS 28 P\Agc:ndas\Agenda Attachments\E~hibils\2005\05-08-15 Walson- Wesnidge (Auachmem lV),doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation XI. NOISE - Would the project result in: a) Exposure of persons to or generation of noise 0 0 ~ 0 levels in excess of standards established in the City's General Plan or Development Code, or applicable standards of other agencies? b) Exposure of persons to or generation of 0 0 0 ~ excessive groundbome vibration or groundbome noise levels? c) A substantial permanent increase in ambient 0 0 ~ 0 noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in 0 ~ ~ 0 ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use 0 0 0 ~ plan or Airport Influence Area, would the project expose people residing or working in the project area to excessive noise levels? f) Other: 0 0 0 ~ Discussion: The DDA will not, in and of itself, affect noise levels in the project area. The construction of single family homes will have limited short term (construction) and long term (operational) impacts on noise levels in the area. The site and surrounding lands are currently relatively quiet. The development of the homes will slightly increase noise levels in the area. However, the increase is not expected to result in ambient noise levels in excess of City standards. Construction of the proposed project will temporarily increase noise levels in the area. However, the City regulates construction to the less sensitive day time hours, and the site is surrounded by scattered residential units and open space. It is expected that grade differentials, distance and the small scale of the proposed project are all expected to lower the impacts on surrounding neighbors associated with project construction to less than significant levels. However, in order to assure that noise levels have the least possible impact on surrounding residents, mitigation measures have been included below. IS 29 P\Agendas\Agenda AlladunenlsIExhibils\1005\05.08.15 WatSOll. Weslridge (Allachmem IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY The development of single family homes is not expected to generate groundborne vibration or groundbome noise levels. The site is not within the Airport Influence Area. In order to assure that construction noise impacts are reduced to less than significant levels, the following mitigation measures shall be implemented: 1. All construction activities shall be limited to the hours of 7a.m. to 7 p.m., Monday through Friday. These activities may be limited to maintenance and other low noise generation construction activity. 2. All construction vehicles shall have mufflers and be maintained in good operating order at all times. 3. All trucks waiting to be loaded or unloaded with construction material shall not be left to idle for more than 10 minutes. 4. No concrete crushing and/or blasting activities on the job site. 5. The project applicant shall instruct the construction superintendent to post a SIgn and maintain a "hot line" to address residents' concerns related to noise. Less Than Poteniially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation XII. POPULATION AND HOUSING - Would the project: a) Induce substantial population growth in an area, D D D [8J either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b) Remove existing housing and displace D D D [8J substantial numbers of people, necessitating the construction of replacement housing elsewhere? c) Other: D D D [8J Discussion: The DDA will have no impact on population and housing. The development of 77 homes will not induce substantial growth in the City. The site is currently vacant, and no existing housing will be removed. Impacts associated with population and housing are expected to be negligible. IS 30 P\Agendas\Agenda AlIal:hments\Exhibits\2005\05-08.J5 WalsOn-WeslridgC (Anachmenl IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation XIII. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public servtces: Fire protection, including medical aid? D D ~ D Police protection? D D ~ D Schools? D D ~ D Parks or other recreational facilities? D D D ~ Other governmental services? D D ~ D b) Other: D D D ~ Discussion: The DDA will have no impact on the provision of public services. The development of single family homes on the project site will increase demands for public services. However, the construction of homes, and the additional discretionary income generated by residents of the homes, will generate both property tax and sales tax to offset the increased need for services. The proposed project will be required to pay school impact fees in place at the time that building permits are issued. The proposed project includes a park to be developed in the southern portion of the site. The park will help to meet the needs of the subdivision for park lands, as will the passive open space in the northern end of the site. Park lands will be maintained through the payment of landscaping and lighting district fees. Overall impacts associated with public services are expected to be less than significant. IS 31 P:\Agendas\Agenda Atlacbmellts\ExhibitsI::0O5\05-08-15 Watson-Weslridge (Anachmcnt IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than Potentially Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation XIV. RECREATION a) Would the project increase the use of existing D D D ~ neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities D D D ~ or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? c) Other: D D D ~ Discussion: The DDA will have no impact on recreation facilities in the City. As stated above, the proposed project will include a park and open space lands which will be available for resident recreation, and may be open to the public. Impacts to recreation in the City are expected to be insignificant. IS 32 P,"Agendas\Agenda AlIachmenls\ExhibitsUOOSI05-08.15 Watson-Weslridge (AllachmenIIV)doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Potentially Less Than Less Than Significant No Significant With Significant Impact Impact Mitigation Impact Incorporation XV. TRANSPORTATION/TRAFFIC - Would the project: a) Cause an increase in traffic which is substantial 0 0 C8J 0 in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a 0 0 C8J 0 level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, 0 0 0 C8J including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design 0 0 0 C8J feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? 0 0 C8J 0 f) Result in inadequate parking capacity? 0 0 0 C8J g) Conflict with adopted policies, plans, or 0 0 0 C8J programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? h) Other: 0 0 0 C8J IS 33 P IAgenda$lAgenda Attachmenls\Exhibits\2005\05-01l-15 Watson-West ridge (AtlachmenIIY).doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Discussion: The DDA, in and of itself, will have no impact on traffic and circulation in the City. The development of the single family homes will result in the generation of tri~s to and from a site which is currently vacant. A traffic analysis was prepared for the proposed project! . The analysis was prepared when the Map was proposed to include 107 single family homes, and has since been redesigned to include only 77 single family homes. The discussion of the results of the traffic study, therefore, is conservative, insofar as the reduction by 30 units in the project size will result in a parallel reduction in trips generated from the site, and associated impacts. The study found that the proposed project would generate 1,040 daily trips. As previously stated, it is now expected to generate approximately 737 daily trips. The study included the analysis of three surrounding intersections. The roadway intersections studied are Sterling Avenue at Foothill Drive, Sterling Avenue at Lynwood Drive, and Del Rosa Avenue at Foothill Drive. All three intersections are currently unsignalized. The roadways studied as part of the analysis, and their associated intersections, are all currently operating at level of service B or better in both the AM and PM peak hour. The study found that in 2015, these intersections, without the addition of the proposed project, would operate at a level of service C or better in both the AM and PM peak hour, and would still be unsignalized. With the addition of the proposed project, these intersections will continue to operate at level of service C or better in the AM and PM peak. Impacts associated with the traffic generated by the proposed project, therefore, are expected to be less than significant. The proposed project does not involve air traffic, and will therefore have no impact on air traffic patterns. The proposed street design does not include unsafe design features. The proposed project includes two points of access, which will provide adequate access for emergency vehicles. The proposed project will be required to comply with Zoning Ordinance standards for on site parking, in the form of a two car garage. The proposed project will have no impact on alternative transportation planning. 10 "Traffic Impact Analysis for the West Ridge Development," prepared by Transtech Engineers, January 2004. IS 34 P\Agc:rldwi\Agenda Anachments\Exhibilsl2005\05-08-15 Walson-W~lridie (Allocbrnenl IV).Qx: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Potentially Less Than Less Than Significant No Significant With Significant Impact Impact Mitigation Impact Incorporation XVI. UTILITIES AND SERVICE SYSTEMS - Would the project: a) Exceed wastewater treatment requirements of 0 0 0 ~ the Santa Ana Regional Water Quality Control Board? b) Require or result in the construction of new 0 0 0 ~ water or wastewater treatment facilities or expansion of existing facilities, the construction of which would cause significant environmental effects? c) Require or result in the construction of new 0 0 0 ~ storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to 0 0 0 ~ serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in determination by the wastewater 0 0 0 ~ treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient 0 0 0 ~ permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes 0 0 0 ~ and regulations related to solid waste? h) Other: 0 0 0 ~ IS 35 P\Agendas\Agcnda AttachmcmslExhibils\2005\OS-08-15 Watson. Westridge (Attachment IV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Discussion: Implementation of the DDA will not, in and of itself, have any impact on utilities. The development of 77 single family homes will result in an increase in usage of utilities. The utilities serving the project site charge connection and service fees for the provision of their services to homeowners. The service fees are designed to include the cost of upgrading and replacement equipment and facilities as the need arises. These connection and service charges will therefore mitigate for potential impacts associated with the buildout of the site, insofar as the future needs of each utility has been factored into the rates paid by each customer. The City's solid waste programs include mandatory recycling programs through the City's Public Services Department. These programs are designed to lower the total refuse generated at the site in conformance with the requirements of AB939, and thereby lower the impacts of growth on area landfills. Overall impacts associated with utilities are expected to be insignificant. Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporation XVII. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade 0 ~ 0 0 the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of major periods of California history or prehistory? b) Does the project have impacts that are 0 0 0 ~ individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the .effects of other current projects, and the effects of probable future projects.) c) Does the project have environmental effects 0 ~ 0 0 which will cause substantial adverse effects on human beings, either directly or indirectly? IS 36 P \Ageodas\Agrnda AUlIChmc:nts\Exhibits\2005\05_08_l5 Walson. Weslridge (AllachrTlCllIIV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Discussion: The development of the project site will have impacts associated with biological and paleontological resources which have been mitigated in this report. These mitigation measures will assure that potential impacts on these resources are less than significant. The proposed project is in conformance with the land use designation assigned to the property in the General Plan. Cumulative impacts studied in the General Plan EIR will therefore not be exceeded as a result of implementation of the proposed project. The proposed project will impact human beings in the area of air quality. Mitigation measures included above, however, will reduce these potential impacts to less than significant levels. IS 37 PlAgenda.<;\AgcOOa AnachmenlslExhibils\2005\05-08-15 Walson-Wcstridge (AllachmcntIV) doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY REFERENCES. The following references cited in the Initial Study are on file in the Development Services Department. I. City of San Bernardino General Plan 2. City of San Bernardino General Plan Land Use Plan/Zoning Districts Map 3. City of San Bernardino Development Code (Title 19 of the San Bernardino Municipal Code) 4. City of San Bernardino Historic Resources Reconnaissance Survey S. Alquist-Priolo Earthquake Fault Zones Map 6. South Coast Air Quality Management District, CEQA Air Quality Handbook 7. Federal Emergency Management Agency, Flood Insurance Rate Maps 8. Public Works Standard Requirements - Water II. Public Works Standard Requirements - Grading 12. General Biological Survey and Focused Coastal California Gnatcatcher Survey on 144 Acre Site, prepared by Tom Dodson & Associates, April 2004 13. Delineation of Potential Wetlands and Jurisdictional Waters, prepared by Tom Dodson & Associates, March 2004 14. Historical! Archaeological Resources Survey Report Single Family Residential Development, North End of San Bernardino, prepared by CRM Tech, April, 2004 ; S. Paleontological Resources Assessment Report Single Family Residential Development, Nor!h End nf San Bernardino. prepared by CRM Tech, April 2004 16 Engineering Geologic and Fault Investigation of Property North of Stirling & Foothill in the City of San Bernardino, letter report prepared by James R. Evans, CEG 974, October 2004 17. Response to Review of our October 18,2004 Engineering Geologic and Fault Study..." dated January 2005 by the same author 18. Engineering Geologic Investigation 80ct Acre Residential Development.., prepared by CHJ Incorporated, January 2004 19. Preliminary Drainage Study Sterling Heights," prepared by Transtech/:Ylapco, April 2003 20. Traffic Impact Analysis for the West Ridge Development," prepared by Transtech Engineers, January 2004 IS 38 f' 'A:;end~\"'Ageml~ All~ch"'enl5\Ex',ibl(s\2()1))\O'.08-1-" V\I'atwn-\Ve,tridgc IS (AnaclllllcI>t IV) {Ioe ATTACHMENT V REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO RESPONSE TO COMMENTS FOR INITIAL STUDY FOR Disposition and Development Agreement between Watson-Westridge, LLC and the Redevelopment Agency of the City of San Bernardino, for the ultimate development of Tentative Tract Map 16963 and associated Conditional Use Permit DATE: JULY 25, 2005 PREPARED BY Nicole Sauviat Criste, Consulting Planner Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, CA 92401 (909) 663-1044 PREPARED FOR Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, CA 92401 (909) 663- 1044 AGENCY COMMENTS AND RESPONSE TO COMMENTS The Response to Comments on the Initial Study for the Disposition and Development Agreement between Watson-Westridge, LLC and the Redevelopment Agency of the City of San Bernardino, for the ultimate development of Tentative Tract Map 16963 and associated Conditional Use Permit has been prepared to respond to comments made by the following agencies. Please note that the full text of the letters are attached to this document. A. Aron Liang, City of San Bernardino Planning Division A. City of San Bernardino Planning Division Comment: VL Geology and Soils Pursuant to Dr. Williams' letter dated July 19, 2005, and faxed to you same date, it shall be noted that further geology report in compliance with the Alquist-Priolo Earthquake Fault Zoning Act shall be required. Specifically, prior of approval of land use entitlement for Tentative Tract Map No. 16963 and Conditional Use Permit No. 05-03, additional geology work satisfactory to the City Geologist shall be required for Lots 13 thru 16,61, and 63 thru 73. Response: Comment noted. The Initial Study has been amended to include this request as a mitigation measure. Comment: XL Noise We request that the proposed MND incorporate the following mitigation measures: 1. All construction activities shall be limited to the hours of 7a.m. to 7 p.m., Monday through Friday. These activities may be limited to maintenance and other low noise generation construction activity. 2. All construction vehicles shall have mujJlers and be maintained in good operating order at all times. 3. All trucks waiting to be loaded or unloaded with construction material shall not be left to idle for more than 10 minutes. 4. No concrete crushing and/or blasting activities on the job site. 5. The project applicant shall instruct the construction superintendent to post a sign and maintain a "hot line" to address residents' concerns related to noise. 2 PlAgendaslAgenda Anachmcms\Exhibils\2005\05_08.15 Watson Response to Comments (Anachmenl V}.doc ResDonse: Comment noted. The Initial Study has been amended to include this request as mitigation measures. Comment: IX. Land Use and Planning We request that the proposed MND incorporate the following mitigation measures: I. The developer shall prepare and submit a Fuel Modification Plan to be reviewed and approved by the Fire Department. The approved Fuel Modification Plan recommendations shall be incorporated into the landscaping and slope revegetation plans for the project. The plan should identify a Fuel Modification Zone, which includes the following components: a. A wildland fire hazard rating assessment and expected fire behavior of off-site and on-site native vegetative fuels. b. A long term "firewise landscaping" and fuel modification treatment plan to be implemented by and around the periphery of the proposed development. c. Building design and construction criteria. The proposed project site is located in a Foothill Fire Zone A, and therefore represents a moderate fire hazard. Development of this site shall comply with the Fire Department's standards for Foothill Fire Zones. A brush management and fuel modification zone shall be incorporated into the Conceptual Landscape Plan. In addition, a fuel modification plan shall be prepared to address the over-all wildland fire hazards and associated risks that may threaten life and property for development of this site. ResDonse: Comment noted. The Initial Study has been amended to include this request as mitigation measures. 3 P.\Agc:ndasIAgenda AUao::hmcnuIE>;hibils\2005\05-08_1.5 Watson Responsl: 10 Cornrroents (Atta.:hment V).doc ATTACHMENT VI MITIGATION MONITORING AND REPORTING PROGRAM FOR THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN W ATSON-WESTRIDGE, LLC AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO This Mitigation Monitoring and Reporting Program has been prepared to implement the mitigation measures outlined in the Environmental Assessment for the Disposition and Development Agreement between Watson-Westridge, LLC and the Redevelopment Agency of the City of San Bernardino. This program has been prepared in compliance with the California Environmental Quality Act (CEQA) and the State and City of San Bernardino CEQA Guidelines. CEQA Section 21081.6 requires adoption of a monitoring and/or reporting program for those measures or conditions imposed on a project to mitigate or avoid adverse effects on the environment. The law states that the monitoring or reporting program shall be designed to ensure compliance during project implementation. The Mitigation Monitoring and Reporting Program contains the following elements: I. The mitigation measures are recorded with the action and procedure necessary to ensure compliance. The program lists the mitigation measures contained within the Initial Study. 2. A procedure for compliance and verification has been outlined for each mandatory mitigation action. This procedure designates who will take action, what action will be taken and when, and to whom and when compliance will be reported. 3. The program contains a separate Mitigation Monitoring and Compliance Record for each action. On each of these record sheets, the pertinent actions and dates will be logged, and copies of permits, correspondence or other data relevant will be retained by the City of San Bernardino. 4. The program is designed to be flexible. As monitoring progresses, changes to compliance procedures may be necessary based upon recommendations by those responsible for the program. If changes are made, new monitoring compliance procedures and records will be developed and incorporated into the program. The individual measures and accompanying monitoring/reporting actions follow. PlAgendaslAgenda AnachmenlslJOJlhibils\2005\05-08-15 Watson MMRP (Attachment VI) doc MITIGATION MEASURES Air Quality I. Use of Aqueous Diesel Fuel in all diesel construction equipment (in order to attain the required 14% NOx reduction) shall be required. 2. No more than 2 scrapers shall operate on the site at any time. 3. Prevent vehicle idling in excess often minutes. 4. No more than an area equivalent to 10 acres shall be actively graded in anyone day. 5. Portions of the site that are actively being graded shall be watered regularly to ensure that a crust is formed on the ground surface, and shall be watered at the end of each work day. 6. All trucks leaving the site shall be washed off to reduce fugitive dust being tracked onto local roadways. 7. Any portion of the site to be graded shall be pre-watered to a depth of three feet, or to bedrock depth, whichever is greater, prior to the onset of grading activities. 8. Any area, which remains undeveloped for a period of more than 30 days after certification of the slope, shall be stabilized using either chemical stabilizers or hydroseed on the affected portion of the site. 9. SCAQMD Rule 403 shall be adhered to, insuring the clean-up of construction-related dirt on approach routes to the site. 10. All grading activities shall be suspended during first and second stage ozone episodes or when winds exceed 25 miles per hour. IMPLEMENTATION AND VERIFICATION Public Works Division shall conduct site inspections during grading process. COMPLIANCE RECORD Inspection records on file in the Public Works Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 2 PlAgendas\Agenda Attachmcnts\Exhibits\200S\OS-08-IS Watson MMRP (AlIachment VI) doc Biological Resources 1. Should earth moving on the site involving the removal of trees and shrubs be proposed for the period from February 15 to September 1 of each year, the project proponent shall cause a nesting bird study to be prepared and submitted to the City Planner for review and approval. The study shall be prepared by a qualified biologist, and shall include recommendations on the avoidance of trees or shrubs where nests are present, if necessary. The study shall be completed 30 days prior to the initiation of grading or tree and shrub removal on the site, and approved prior to the issuance of grading permits. IMPLEMENTATION AND VERIFICATION Planning Division shall review and approve the nesting bird study. COMPLIANCE RECORD Approved report on file in the Planning Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 2. In order to mitigate for the loss of waters of the United States, the project proponent shall: a. Construct a drainage course of 0.93 acres in size along Street B. The design of the drainage course shall include soils and vegetation consistent with habitat typical of non-wetland jurisdictional waters on the project site. The drainage course shall be installed at the project proponent's expense, and maintained in perpetuity by a financing mechanism acceptable to the City Attorney's office (assessment district, landscaping and lighting district, etc.). The design of the drainage course shall assure that it is isolated from potential urban runoff contamination within the site. b. Install permanent sources of water (guzzlers) at the headwaters of drainage C-3, and its tributary, as well as vegetation consistent with the vegetation in Drainage A, and resulting in a created habitat of at least 0.3 acres (13,068 square feet). The drainage courses shall be installed at the project proponent's expense, and maintained in perpetuity by a financing mechanism acceptable to the City Attorney's office (assessment district, landscaping and lighting district, etc.). The design of the drainage course shall assure that it is isolated from potential urban runoff contamination within the site. 3 P\AgendaslAgcnda Anachmenls\Exbibiu\2005\05.08_IS Watson MMRP (Anachmc:nl VI) dol.: 3. The project proponent shall secure all necessary permits from the California Department ofFish and Game, the Regional Water Quality Control Board, and the US Army Corps of Engineers prior to issuance of any earth moving permit for the site. IMPLEMENTATION AND VERIFICATION Planning Division shall receive copies of all permlttmg documentation from the California Department of Fish and Game, the US Fish and Wildlife Service, and the Regional Water Quality Control Board. COMPLIANCE RECORD Permits on file in the Planning Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: Cultural Resources I. A qualified paleontological monitor shall be on site during all excavation and trenching within sedimentary rock areas of the site (in the southern portion of the site). The monitor shall be empowered to stop or redirect earthmoving activities. The monitor shall be equipped to salvage fossils as they are uncovered. 2. Any identified resources shall be curated in a marmer, which meets the highest professional standards. A report of any identified resources and of their disposition shall be submitted to the City Planner within 30 days of completion of earthmoving activities in sedimentary rock areas, for review and approval. IMPLEMENTATION AND VERIFICATION Public Works Division shall conduct site inspections during grading operations. Planning Division shall review and approve the monitoring report. COMPLIANCE RECORD Inspection reports on file in the Public Works Division. Approved report on file in the Planning Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 4 P:\AgrndasIAgenda AUachmcmsIExhibils\2005\05-08-15 Watson MMRP (Anachmenl VI) doc Geology and Soils I. Lots 73 shall be eliminated from the proposed tract map and preserved as dedicated open space. 2. Prior to the issuance of a grading permit for any lot identified as #63 through #72 (inclusive) on the Tentative Tract Map, a comprehensive geotechnical analysis shall be conducted by a qualified geologist to determine whether a building can be sited on the lot. The analysis shall be reviewed and approved by the City Geologist prior to the issuance of any earth moving permit for anyone of these lots. The pads shall meet Development Code development standards for lot size, width, depth, and setbacks. 3. Prior to the issuance of grading permits for any lot identified as #63 through #72 (inclusive) on the Tentative Tract Map, a comprehensive geotechnical analysis, including analysis of landslide and mudflow potential, shall be prepared by a qualified geologist, and submitted to the City Geologist for review and approval. The recommendations included in that study shall be implemented in all earth moving plans for these lots. 4. Prior to the issuance of grading permits for the project site, a site-specific liquefaction analysis shall be completed by a qualified geologist or geological engineer, and submitted to the City for review and approval. The analysis shall include a complete report on liquefaction and subsidence potential for the site, and recommendations for construction of structures, footings, etc., as needed. The report's recommendations shall be implemented in site preparation plans and building designs. 5. The final grading plan shall be submitted to a qualified geologist for review and approval of slope structure and rock fall, prior to issuance of any grading permit 6. All cut slopes shall be constructed on the site shall be monitored and tested by a qualified geologist. A report of the testing and a certification of the slopes shall be provided to the City Engineer within 30 days of completion of the grading on the site. 7. Pursuant to City Geologist Dr. Williams' letter dated July 19, 2005, further geology study in compliance with the Alquist-Priolo Earthquake Fault Zoning Act shall be required. Specifically, prior of approval ofland use entitlement for Tentative Tract Map No. 16963 and Conditional Use Permit No. 05-03, additional geology work satisfactory to the City Geologist shall be required for Lots I3 thru 16,61, and 63 thru 73. IMPLEMENTATION AND VERIFICATION City Geologist shall review and approve all reports. COMPLIANCE RECORD Approved report on file in the Planning Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 5 PlAgendaslAgcllda AttachmcntslbhibitsIJOO5\05-08-15 Watson MMRP (Anachmerll VI) doc Land Use and Planning I. The developer shall prepare and submit a Fuel Modification Plan to be reviewed and approved by the Fire Department. The approved Fuel Modification Plan recommendations shall be incorporated into the landscaping and slope revegetation plans for the project. The plan should identify a Fuel Modification Zone, which includes the following components: a. A wildland fire hazard rating assessment and expected fire behavior of off-site and on-site native vegetative fuels. b. A long term "firewise landscaping" and fuel modification treatment plan to be implemented by and around the periphery of the proposed development. c. Building design and construction criteria. 2. Development of this site shall comply with the Fire Department's standards for Foothill Fire Zones. A brush management and fuel modification zone shall be incorporated into the Conceptual Landscape Plan. 3. A fuel modification plan shall be prepared to address the overall wildland fire hazards and associated risks that may threaten life and property for development of this site. IMPLEMENTATION AND VERIFICATION Fire Department shall review and approve all brush management and fuel management plans. COMPLIANCE RECORD Copies of plans to be on file in the Fire Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 6 PlAgendaslAgenda Allachments\Exhibils\2005\05.011-15 Watson MMRP (Allachmelll VI) doc Noise 1. All construction acliVllies shall be limited to the hours of 7a.m. to 7 p.m., Monday through Friday. These activities may be limited to maintenance and other low noise generation construction activity. 2. All construction vehicles shall have mufflers and be maintained in good operating order at all times. 3. All trucks waiting to be loaded or unloaded with construction material shall not be left to idle for more than 10 minutes. 4. No concrete crushing and/or blasting activities on the job site. 5. The project applicant shall instruct the construction superintendent to post a sign and maintain a "hot line" to address residents' concerns related to noise. IMPLEMENTATION AND VERIFICATION Public Works Division and Building and Safety Division shall conduct inspections during the grading and construction process. COMPLIANCE RECORD Copies of inspection records to be on file in the Public Works and Building and Safety Division. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: P IAgendas\Agenda Anachments\Exhibitsl2005\05_08_15 Watson MMRP (Anacllmcnl VI) doc 7 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM <I'lL ,.- Meeting Date (Date Adopted): 0 :J ,[1 ~ Vote: Ayes 1 Nays Change to motion to amend original documents 0 ;?P; I(A) --- Item # Abstain Resolution # JyD05~d7D Absent Companion Resolutions NulINoid After: days / Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0 PUBLISH 0 POST 0 RECORD W/COUNTY 0 Date Sent to Mayor: ~ ~ t'/ " 0 ( Date of Mayor's Signature: ~""r? " c ( / /. Date of Clerk/CDC Signature: ~ O~ By: Reso. Log Updated: [( Seal Impressed: 6' Reso. # on Staff Report ~ Date Memo/Letter Sent for Signature: 151 Reminder Letter Sent: Date Returned: 2nd Reminder Letter Sent: Not Returned: 0 Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985,8234,655,92-389): Copies Distributed to: ~ Animal Control 0 EDA City Administrator ~ Facilities 0 City Attorney Finance 0 Code Compliance 0 Fire Department 0 Development Services 0 Human Resources 0 Others: Notes: Yes~ Yes Yes Yes Yes No No/ No (,..--- No By_ By_ By_ By_ By_ ~. No Information Services 0 Parks & Recreation 0 Police Department 0 Public Services 0 Water Department 0 / Ready to File: V Date:g~ )) '-Of Revised 12/18/03 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): ~/ t S-:' b (Item # R 31 (8) Resolution # d IJ t2 <; ~ J.-il i Vote: Ayes '7 Nays Abstain Absent Change to motion to amend original documents D Companion Resolutions NulVVoid After: days / Resolution # On Attachments: D Note on Resolution of attachment stored separately: D PUBLISH D POST D RECORD W/COUNTY D By: ,/ Date Sent to Mayor: ~ 'I ~l' c 5:, /' Date of Mayor's Signature: ,/Z,.\1. 0 S ~ Date of ClerklCDC Signature: 't;(,. ) ~, {) r; Date Memo/Letter Sent for Signature: 151 Reminder Letter Sent: Date Returned: 2nd Reminder Letter Sent: Reso. Log Updated: ~ Seal Impressed: 6' Reso. # on Staff Report E;/ Not Returned: D Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413,6429,6433, 10584, 10585, 12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distributed to: ~ Animal Control D , EDA City Administrator V Facilities D City Attorney Finance D Code Compliance D Fire Department D Development Services D Human Resources D Others: Yes ./ NOr No T No~ By_ NO-yBY_ No_ By_ By_ By_ Yes Yes Yes Yes Information Services D Parks & Recreation D Police Department D Public Services D Water Department D Notes: Ready to File: V Date: ~..!~ O~ Revised 12/18/03 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): ~ )<;....<J'\ Item # Vote: Ayes Nays Change to motion to amend original documents 0 ~QI ((,) Resolution # Abstain ~O~./~D~-)S I Aosent Companion Resolutions NullNoid After: days / Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0 PUBLISH 0 POST 0 RECORD W/COUNTY 0 By: Reso. Log Updated: 0 Seal Impressed: 0 Reso. # on Staff Report 0 Date Sent to Mayor: Date of Mayor's Signature: Date ofClerk/CDC Signature: Date Memo/Letter Sent for Signature: 1st Reminder Letter Sent: Date Returned: 2nd Reminder Letter Sent: Not Returned: 0 Request for Council Action & Staff Report Attached: Yes No By_ Updated Prior Resolutions (Other Than Below): Yes No By_ Updated CITY Personnel Folders (6413,6429,6433, 10584, 10585, 12634): Yes No By_ Updated CDC Personnel Folders (5557): Yes No By_ Updated Traffic Folders (3985, 8234, 655, 92-389): Yes No By_ Copies Distributed to: Animal Control 0 EDA 0 Information Services 0 City Administrator 0 Facilities 0 Parks & Recreation 0 City Attorney 0 Finance 0 Police Department 0 Code Compliance 0 Fire Department 0 Public Services 0 Development Services 0 Human Resources 0 Water Department 0 Others: Notes: Ready to File: Date: Revised 12/18/03 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Mm'ng Dare (Oat' Ad07dl ~, /5 ,00 It= # ~ ';) / (0) R"olutirm # ('1)14 -PDO S - J. ~ Vote: Ayes Nays Abstain Absent Change to motion to amend original documents D Companion Resolutions Null/Void After: days / Resolution # On Attachments: D Note on Resolution of attachment stored separately: D PUBLISH D POST D RECORD W/COUNTY D By: Reso. Log Updated: Seal Impressed: D D Date Sent to Mayor: Date of Mayor's Signature: Date of ClerklCDC Signature: Reso. # on Staff Report D Date Memo/Letter Sent for Signature: 151 Reminder Letter Sent: Date Returned: 2nd Reminder Letter Sent: Not Returned: D Request for Council Action & Staff Report Attached: Yes No By_ Updated Prior Resolutions (Other Than Below): Yes No By_ Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Yes No By_ Updated CDC Personnel Folders (5557): Yes No By_ Updated Traffic Folders (3985, 8234, 655, 92-389): Yes No By_ Copies Distributed to: Animal Control D EDA D Information Services D City Administrator D Facilities D Parks & Recreation D City Attorney D Finance D Police Department D Code Compliance D Fire Department D Public Services D Development Services D Human Resources D Water Department D Others: Notes: Ready to File: _ Date: Revised 12/18/03